Letting one’s voice be heard: the question of trans rights in South Korea

23/06/2023

Agchar Donia

On June 3rd 2023, Na Hwa-rin, a professional cyclist, marked history by becoming the first trans person to participate in an official sports competition in South Korea. Majorly recognized by numerous human rights organisations^[1]Choi, K.J. (02 Juin 2023). 성소수자 단체, 국내 최초 성전환 사이클 선수 나화린씨 응원. [LGBT groups support Na Hwa-rin, the nation’s first transgender cyclist.] Gangwon … Continue reading, such as Amnesty International Korea, her participation sparked controversy concerning her eligibility to participate in the feminine category due to her measurements and her higher muscular mass in comparison to her opponents. Despite this, Na Hwa-rin triumphed, securing first place in the podium earning the first place during the competition^[2]Lee, J.S. (04 Juin 2023). ‘성전환’ 나화린, 女경륜 우승. . . ‘죄송한 마음’ 담아 음료 건넸다. [Na Hwa-rin, ‘transgender’, won the race… I handed them a … Continue reading.

Besides her sports performance, Nah Hwa-rin initiate a public debate in South Korea in order to make her voice be heard and advocate for trans rights^[3]Kim, J. H. (03 Juin 2023). “인생 건 출전. . .논란 되고 싶다” 성전환 女선수 나화린 우승. [“I’m going to take part in my life..I want to be controversial,” Na … Continue reading : Currently, there are no specific rules within the Korean Sports Federation governing the participation of trans individuals in competitions. This lack of legislation raises debates as for the classification of athletes regarding their gender identity in South Korea. Na Hwa-rin wishes to establish a third distinct category for trans people, as she declares: “I’m trying to sneak in [the competition] to give a place to sexual minorities in categories that are divided between men and women^[4]Kim, J. H. (03 Juin 2023). “인생 건 출전. . .논란 되고 싶다” 성전환 女선수 나화린 우승. [“I’m going to take part in my life..I want to be controversial,” Na … Continue reading”.

These events shedhighlighted a significant lack of legislation and regulation concerning trans people rights in South Korea. Actors such as Na Hwa-rin play a crucial role provoking public debates, aiming to reach a change in the country. Throughout this article, we will analyse the socio-political challenges encountered in the inclusion of trans people in South Korea.

Legal context concerning trans rights 

The current legal framework in South Korea for trans individuals is characterised by various shortcomings and the absence of significant legislation.

The country lacks specific laws addressing non-discrimination. Despite numerous drafts of bills introduced by  former president, Ron Moo-hyun, initiated the debate on the necessity  of such  legislation in 2007^[5]Kim, A. (2020, June 30). ‘Legislate against discrimination,’ human rights body urges lawmakers. The Korea Herald. http://www.koreaherald.com/view.php?ud=20200630000900&ACE_SEARCH=1, no exhaustive text has been adopted. Thus, South Korea stands out within the Organization for Economic Cooperation and Development (OECD) as one of the only countries,alongside Japan, without this type of law^[6]Lee, J. (2023, March 15). [New Neighbors] S. Korea needs anti-discrimination law to be an open community for immigrants. The Korea Herald. https://www.koreaherald.com/view.php?ud=20230315000559. This lack of  detailed anti-discrimination legislation leaves trans people vulnerable to inequalities.

However, LGBTI+ rights are not disregarded in the country, sexual orientation is included and listed as a “protected category” in the anti-discrimination clause of the law on the National Human Rights Commission (NHRCK)^[7](Korea Legislation Research Institute, Korea Law Translating Center (n.d.). National Human Rights Commission of Korea Act. https://elaw.klri.re.kr/eng_service/lawView.do?hseq=22488&lang=ENG. Nevertheless, there is no mention of discrimination based on gender identity. In this respect, legal recognition of gender has a crucial importance for trans people. It allows them to live in agreement with their profound identity, without being confronted to juridical obstacles or obligations enabling them to live in accordance with their true identity without facing legal obstacles or obligations that undermine their gender identity.

Currently in South Korea, the process to obtain legal recognition is complex and restrictive. Laying on a court ruling, it requires meeting criteria such as a minimum age of 19, undergoing surgery, undergoing a sterilisation process, obtaining parental  consent, and being single (to understand: non-married)^[8]South Korea Report – United States Department of State. (2023, March 21). United States Department of State. … Continue reading. The absence of any legal mention of non-binary gender identities should be emphasised, as it represents an additional challenge for their recognition.

However, such recognition entails numerous obligations in both Korean and international law, such as the right to self-determination or the respect for private life^[9]NHRCK (25 Mai 2023). 트랜스젠더 성별정정 관련 대법원 예규 중 수술요건 등 인권침해 소지 조항 개정 권고. [Among the Supreme Court rules related to transgender gender … Continue reading. 

Given these realities, it becomes peremptory to put in place a comprehensive legislation that recognizes gender identities in South Korea. Obviously, this would guarantee trans people the right to have their gender identity recognized, and therefore contribute to protect them against discrimination. This legislative breakthrough would represent an essential step towards a more inclusive South Korean society that respects gender diversity and, by extension, LGBTI+ rights.

Obstacles and discriminations: challenging the country’s deeply rooted conservative values 

In South Korea, trans people face numerous obstacles and discrimination due to a deeply conservative socio-political context. The country is influenced by unprogressive currents, both at the political and religious levels^[10]NBC News (28 Décembre 2022). Meet The Activists Calling For LGBTQ+ Rights In South Korea. [Fichier vidéo]. https://www.youtube.com/watch?v=npi1KUwJc30, which hinder the recognition and protection of trans people’s rights.

The most virulent attacks come from conservative Christian groups, which have a significant impact on South Korea’s socio-political landscape. Religiously speaking, Protestant Christianity occupies a predominant place in South Korea, with almost 45% of the country’s believers declaring themselves to be Protestant Christians^[11]Korean Culture and Information Service (KOCIS). (n.d.). Korean Life  : Religion. https://www.korea.net/AboutKorea/Korean-Life/Religion. 

This Christian religious influence contributes to maintaining traditional and conformist values, preventing the advancement of LGBTI+ rights in the country. For example, in 2021 various religious groups and a large part of civil society called on the National Assembly to adopt a non-discrimination bill, which would include protection for religious affiliation. However, some Protestant groups, including the United Christian Churches of Korea, opposed the legislation because one of the protected categories mentioned was sexual orientation^[12]2021 Report on International Religious Freedom: South Korea (2022, June 2). United States Department of State. https://www.state.gov/reports/2021-report-on-international-religious-freedom/south-korea/. 

This opposition is evident in events such as the Seoul Queer Culture Festival, where groups from the religious lobby have repeatedly tried to prevent the festival from taking place^[13]AFP News Agency (16 Juillet 2022). First post-Covid Seoul Pride is met with anti-gay protesters | AFP [Fichier vidéo]. https://www.youtube.com/watch?v=YtlecKdnRoY. In 2023, for example, there was no Pride, and so for a reason: a Christian youth concert, which had permission to organise the event at Seoul Plaza, took place instead. This was seen as a provocation by associations fighting for LGBTI+ rights in South Korea^[14]Yim, H. (2023, May 4). Seoul’s LGBT festival blocked by Christian concert outside city hall, organisers say. Reuters. … Continue reading. 

These obstacles to demonstrating, mobilising, and raising awareness are supported by well-known LGBTphobic public figures, thus making it more and more difficult to achieve progressive change. Recently, in Daegu, members of the government, including the mayor of the city, protested  against the annual parade for LGBTI+ rights^[15]Yeung, J., & Bae, G. (2023, June 19). South Korean city officials clash with police at protest against LGBTQ festival. CNN. … Continue reading. 

The conservative president Yoon Suk-yeal, elected in may 2023, is known for his anti-feminist positions^[16]((Shim, E. (2021, August 2). South Korean presidential candidate’s feminism remarks generate controversy. UPI. … Continue reading and his electorate to be majorly composed of masculinists^[17]Gunia, A. (2022, March 10). How South Korea’s Yoon Suk-yeol Capitalized on Anti-Feminist Backlash to Win the Presidency. Time. https://time.com/6156537/south-korea-president-yoon-suk-yeol-sexism/. LGBTIphobic positions of certain members of his administration^[18]Kim, M. J., & Lee, M. Y. H. (2022, May 11). As Emhoff visits South Korea, gender and LGBTQ issues come to the fore. Washington Post. … Continue reading, followed by the President’s silence despite the request of apologies from activists such as Rainbow Action^[19]Agence France-Presse (2022, May 19). South Korean President Yoon Suk-yeol starts on wrong foot as official panned for backing gay conversion. South China Morning Post. … Continue reading, how that he is giving little attention to LGBTI+ questions, or that he even supports these political opinions. In addition, the president Yoon has never spoken/addressed in public on the topic of trans.

As a consequence, these conservative influences result in a series of discriminations towards trans people in South Korea, particularly due to the absence of any particular legal protection, exposing them to difficulties and to violations of their fundamental rights^[20]Jang, S. (2022, January 13). South Korea’s transgender community pushes for recognition and acceptance. East Asia Forum. … Continue reading.

In South Korea, trans people are victims of discrimination whereas it be in education^[21]South Korea: LGBT Students Face Bullying, Discrimination. (2021, September 14). Human Rights Watch. https://www.hrw.org/news/2021/09/14/south-korea-lgbt-students-face-bullying-discrimination, work or in other spheres of society. A study on discrimination suffered by trans individuals, based on nine criteria, such as daily life, education, employment, was led by the NHRCK from May to November 2020. The study revealed that more than 92% of the 591 surveyed came across difficulties at school, when 14,9% were victims of abuse and/or injustice from teachers in higher education. The work research proves to be as hard: 48% of the surveyed declared that their potential employer had negative opinions on their gender non-conformity and that 15,9% declared that they were directly denied the job^[22]Yonhap. (2021, February 10). Discrimination, hatred against trans people “serious” in S. Korea: watchdog. The Korea Herald. https://www.koreaherald.com/view.php?ud=20210210000835.

A direct consequence of discrimination and social rejection is the avoidance or the lateness in the care access for trans people. This tendency, known as the ＂health avoidance and delay＂(HAD), is observed in a significative number of trans people in South Korea. The detected obstacles, such as stigmatisation and the fear of being discriminated, can lead to avoidance of the health system, which has a negative effect for their general wellbeing and can worsen their already existing problems^[23]Lee, H., Operario, D., Yi, H., Choo, S., Kim, J. H., & Kim, S. S. (2022). Does Discrimination Affect Whether Transgender People Avoid or Delay Healthcare?: A Nationwide Cross-sectional Survey in … Continue reading. 

Discriminations touch the LBGTI+ community as a whole, and most particularly in the military frame. In South Korea, homosexual relations are not punished in civil society but they are forbidden within the army, thus creating a hostile environment for LGBTI+ people. The article of Dylan Gueffer ＂homosexuality in Korea＂permits to understand better the question of the discrimination linked to the sexual orientation in this field^[24]Dylan GUEFFIER, “L’homosexualité en Corée du Sud”, 13.09.2020, Institut du Genre en Géopolitique. https://igg-geo.org/?p=1965. his leads to wonder: what about trans people in highly LGBTI-phobic environments^[25]Na, T. Y.-J., Han, J. H. J., & Koo, S.-W. (2014). The South Korean Gender System: LGBTI in the Contexts of Family, Legal Identity, and the Military. The Journal of Korean Studies (1979-), 19(2), … Continue reading?

In South Korea,  military service is mandatory for any man aged between 18 and 35. The latter is entirely part of the South Korean society: it is an obligation for any man in ＂good health＂ and is perceived as an important step in the lrite of passage of every South Korean man, in a country that is  theoretically still at war. However, the system perpetuates binary gender norms and constitutes a crucial mechanism that strengthens the notion of traditional masculinity^[26]Lorentzen, L.A., Turpin, J.E. (1998). The Woman and War Reader. NYU Press. https://books.google.com/books/about/The_Women_and_War_Reader.html?hl=fr&id=-0sTCgAAQBAJ. For trans people, the military service creates a complex situation where they are confronted with challenges linked to their gender identity.

Gender for military service is determined according to the written mention in the family register, figuring on the official proof of identity. As a consequence, cisgender men, and women that have not officially legally recognized their gender identity in the family register, are called to serve in the army. Cisgender women, as for them, can decide to serve voluntarily. If the authorities determine that trans men  who have not undergone sexual reassignment surgery to change their gender identity, they are legally considered to be women and are exempted from the military service. They are also forbidden to volunteer as men in the forced army^[27]Amnesty International. (2021, June 1). South Korea: Serving in silence: LGBTI people in South Korea’s military. https://www.amnesty.org/en/documents/asa25/0529/2019/en/. This situation highlights as well the importance of the legal recognition of gender identity.

Furthermore, the discriminations and obstacles that trans people face within the South Korean army have serious consequences, as tragically demonstrated by a specific example.  In March 2021, Sgt Byun-su, a transgender woman, took her own life. After getting a sexual resignation surgery in January 2020,  she was confronted with a forced demobilisation from the military courthouse. The reason invoked was that her ＂change of sex＂ made her ＂disabled and inapt to serve”^[28]Cha, S. (2021, October 7). Posthumous victory for S.Korean transgender soldier as court tells army to annul dismissal. Reuters. … Continue reading. Confronted by this injustice, Sgt Byun thus refused to stay in the masculine military unit, willing more to be reinfected in a feminine unit. Unfortunately, she was deprived of this possibility and had to deal with the marginalisation and to additional challenges because of her gender identity.

Later on, in October 2021, the courthouse of the district of Daejeon issued a posthumous decision condemning the forced and illegal mobilisation of Sgt Byun in the South Korean. This court decision provoked a feeling of hope in the possibility of a change of the discriminatory laws against trans people and the LGBTI+ community in the whole country^[29]The Associated Press. (2021, October 9). Landmark ruling finds South Korea military illegally discharged a transgender soldier. NPR. … Continue reading. It highlights the importance of a legal action to defend trans rights and question discriminatory practices. However, broader actions and more concrete actions are necessary to guarantee a full recognition of trans rights and their inclusion in all aspects of society^[30]Lee, J., Ryu, DH. & Lee, SJ. Anonymous view on transgender soldiers: content analysis of online news headlines and comments in South Korea. BMC Public Health 22, 2085 (2022). … Continue reading.

In parallel, the consequences of the discriminations suffered by trans people in South Korea have also a significant repercussion on their health, both on the mental and physical plan.

A research on 583 South Korean trans people shows that 65.7% of them have been victims of discrimination based on their trans identity within the past 12 months. Amongst the participants that suffered from discrimination, they were 1.48 more likely to have sleeping problems compared to those who have never experienced it^[31]Eom, Y. J., Lee, H., Kim, R., Choo, S., Yi, H., & Kim, S. S. (2022). Discrimination keeps transgender people awake at night: A nationwide cross-sectional survey of 583 transgender adults in South … Continue reading. The prevalence of depressive symptoms are as well way higher: in comparison to the cisgender population, the trans adults show an average risk 8.075 times higher to show depressive symptoms and 12.66 times higher to develop suicidal thoughts^[32]Lee, H., Operario, D., van den Berg, J. J., Yi, H., Choo, S., & Kim, S. S. (2020). Health Disparities Among Transgender Adults in South Korea. Asia-Pacific journal of public health, 32(2-3), … Continue reading.

These results underline the urgency to develop inclusive health policies that guarantee adapted services to the specific needs of trans people, eliminating the barrier to health care access, and providing the proper psychological support.

A look on evolution and the potential progress including trans people

The recognition of trans rights in South Korea is a complex process that requires a change as social as political. However, there exists significant progress in this field, particularly concerning the behaviour of young generations.

South Korean youth (people between 20 and 39 years old) are more sensitive to equality and justice questions. This generation is more and more inclined to support the LGBTI+ cause. Studies show that more young people compared to older ones, position themselves in favour of trans rights^[33]Li, H., Luhur, W. & N.T. Brown, T. (2022, January 25). Public Opinion of Transgender Rights in South Korea. The Williams Institute at UCLA School of Law. … Continue reading. Alongside, an increasing number of young people in South Korea take actively part in politics^[34]Yoon, J. (2022, July 5). Young Politicians Seek Change, but Face Hurdles as Old as Politics. The New York Times. https://www.nytimes.com/2022/07/04/world/asia/south-korea-young-politicians.html offering tangible hope for a change. These young politicians bear with them progressive values and a will to promote equality and inclusion^[35]Lee, S. J. (2021, June 29). Generational Divides and the Future of South Korean Democracy – Demographics and the Future of South Korea. Carnegie Endowment for International Peace. … Continue reading. This evolution of behaviours is particularly significant because it indicates a generational change that could transform the South Korean political scene towards a way more inclusive model.

The diminution of the influence of Christianism in young generations in South Korea appears to be a key factor in the process of inclusion of trans people^[36]Writer, S. (2021, March 26). How religion spurs homophobia in South Korean politics. Nikkei Asia. https://asia.nikkei.com/Politics/How-religion-spurs-homophobia-in-South-Korean-politics. Fewer and fewer  people in South Korea are interested in Christian religions, considering it ＂too traditional^[37]Cho, Y. (2015, February 13) More South Koreans, particularly the young, are leaving their religions. Hankyoreh, Inc. http://english.hani.co.kr/arti/english_edition/e_national/678355.html”.  The corruption scandals, sexual abuse or virus propagation during the COVID 19 sanitary crisis implying certain sects also tarnished the reputation of Christianism in South Korea^[38]Mesmer, P. (2020, August 18). En Corée du sud, les sectes à nouveau au cœur des contaminations au Covid-19. Le Monde.fr. … Continue reading.

This religious disaffection creates a space for more open and inclusive perspectives towards trans people. South Korean youth are more and more inclined to question traditional dogmas and bias linked to gender identity, promoting a favourable social climate to include trans people.

On the other hand, the legislative evolution in South Korea is another important aspect in the inclusion of trans people. There has been  some progress: before November 2022, one of the conditions to legally recognize a gender — that is to say changing the born-assigned gender — was to not have a kid under 19 years old. However, the South Korean supreme court pronounced an important decision in November 2022, affirming that it shouldn’t be an automatic motive of refusal. According to Amnesty International Korea, this decision constitute a real progress towards  ＂depathologization＂ of the legal recognition process in South Korea^[39]Amnesty International. (2022, November 24). South Korea: Supreme Court ruling on legal gender recognition an important step forward for transgender rights. … Continue reading.

To a more inclusive society 

The intersectional fight to adopt the law of non-discrimination underlines the importance of a continuous action to promote trans people’s inclusion and all minorities in South Korea, including foreign people, people with disabilities and elderly people^[40]Jaeeun, L. (2023, March 15). [New Neighbors] S. Korea needs anti-discrimination law to be an open community for immigrants. The Korea Herald. https://www.koreaherald.com/view.php?ud=20230315000559. 

To reach a real inclusive society towards trans people in South Korea, concrete recommendations and actions are necessary. The National Human rights Commission recently published in May 25th 2023 a recommendation to the Supreme Court, asking for a revision of requirements, notably those linked to surgery interventions, in the process of legal gender recognition^[41]NHRCK (25 Mai 2023). 트랜스젠더 성별정정 관련 대법원 예규 중 수술요건 등 인권침해 소지 조항 개정 권고. [Among the Supreme Court rules related to transgender gender … Continue reading. However, until now, no favourable answer has been given, which raise concerns concerning the commitment towards trans rights and the LGBTI+ community, since is is not the first time the government turns a deaf ear facing the NHRCK recommendations^[42]Yeon-Woo, L. (2023, 27 janvier). Cabinet ministries turn deaf ear to watchdog’s advice on sexual minorities. The Korea Times. https://m.koreatimes.co.kr/pages/article.amp.asp?newsIdx=344346.

Likewise, the Human Rights Watch (HRW) emitted recommendations addressed to important actors in education and the inclusion of LGBTI+ people, such as the Ministry of Education, the Ministry of Health as well as the teachers and educative personal^[43]“I Thought of Myself as Defective” – Neglecting the Rights of LGBT Youth in South Korean Schools. (2021). Human Rights Watch. … Continue reading. These recommendations stress on the necessity to raise awareness and create educational programs aiming to promote the inclusion of LGBTI+ and trans people in the South Korean society.

To quote this article: Anchor Donia (2023), Letting one’s voice be heard: the question of trans rights in South Korea. Gender Institute in Geopolitics.. https://igg-geo.org/?p=12691

The statements in this article are the sole responsibility of the author.