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Investigations and Remedies for Discrimination on the Grounds of Sexual Orientation [2008] KRNHRC 13 (1 January 2008)

Discrimination on the basis of sexual orientation refers to acts of differentiating,
excluding, unfavorably treating, limiting, or harassing a person or a group of people,
without reasonable causes, only because the person or the group are or presumed to be
homosexual, heterosexual, or bisexual.

Human rights violation in relation to transgenders
Choi and two other people filed a complaint with the Commission that the Guidelines
on Administrative Procedures for Legal Gender Change of Transgenders established and
implemented by the Supreme Court contained provisions violating the human rights of
transgenders and lacked a confidentiality clause. They claimed that the requirements for
legal gender change were against the protection of human rights. The requirements are as
follows:
1) the gender re-assignment surgery should be completed;
2) the applicant should be at least 20 years old;
3) the applicant should have no marriage record;
4) the applicant should have no child;
5) the applicant should live a successful life after changing his or her sex;
6) the applicant should have already finished the mandatory military service or be
exempted from the military service;
7) the applicant should have no purpose or intention to use the sex change for crime or
illegal activities;
8) the applicant's sex change should not affect his or her social status or Korean society
in an adverse way and should be within the scope of tolerance in Korean society;
9) the applicant should submit his or her parent's agreement on legal gender change.

The Supreme Court claimed that the guidelines were only a reference document used to
approve of sex change in court and a declaration of the general principle for evidence
collection method using suo moto investigations. It also stated that it was desirable to
establish guidelines on the requirements and procedures for legal gender change.
In response, the Commission made the following recommendations: that the Supreme
Court not require the applicant to have genital reconstruction surgery, as the requirement is
too excessive for the applicant who has already received an irreversible medical treatment
to change his or her sex; that the Supreme Court procure exceptions to allow minors to
change their gender with approval of their parents or legal guardians, even though the legal
gender change is, in principle, for those who are at least 20 years old; that the Supreme
Court acknowledge various types of families and allow an applicant with children to
change his or her legal gender, provided that the applicant obtains agreement of minor
children, if any. The Commission also recommended the Supreme Court to annul the
following statements from being requirements for gender change, as they were ambiguous
and were deemed to violate the rights of transgenders and applicants if kept as
requirements: 'applicant will live a satisfactory life as a member of the opposite sex',
'applicant has finished his military duties or is exempt from them', 'applicant is not acting
on criminal or illegal purposes', 'gender change will not impact applicant's social standing,
negatively influence society, and is accepted socially'. In addition, the Commission
recommended the Supreme Court abolish the statement providing that the applicant must
submit an agreement by the applicant's legal guardian or parents as it could violate the
transgender's personal rights and his or her right to pursue happiness. Also, it
recommended the Court to procure provisions confidentiality regarding the gender change
as if revealed against the wishes of the person it would increase his or her exposure to
discrimination and violation of human rights. Moreover, it recommended that the Supreme
Court add a new provision to prohibit the disclosure of the legal gender change of
transgenders, considering that the disclosure of the legal gender change against the
applicant's will would constitute a discrimination or human rights violation.

The Commission concluded that the National Assembly should enact special laws to protect the
fundamental rights of transgenders. It recommended that the Supreme Court revise the
guidelines and use the revised guidelines before a special law is enacted in order to prevent
violations of transgenders' human rights, and abolish the revised guidelines after a special
law is established.