PARALLEL Report to the Un Committee on Economic, Social and Cultural Rights Regarding

PARALLEL REPORT TO THE UN COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS REGARDING THE REPUBLIC OF KOREA'S PROTECTION OF THE RIGHTS OF LGBTI INDIVIDUALS

Compiled by the Kaleidoscope Human Rights Foundation and Rainbow Action against Sexual Minority Discrimination

January 2017

Contact Person: Professor Paula Gerber President, Kaleidoscope [email protected]

1 1. BACKGROUND

1.1 Kaleidoscope Human Rights Foundation (Kaleidoscope) is an NGO that works with local ad vocacy organisations to protect and promote the rights of lesbian, gay, bisexual, transgender a nd intersex (LGBTI) individuals in the Asia Pacific region. Kaleidoscope has prepared this re port, in conjunction with Rainbow Action Against Sexual Minority Discrimination, to inform the United Nations (UN) Committee on Economic, Social and Cultural Rights (Committee) o f areas of concern with respect to the Republic of Korea's (Korea) obligations under the Inter national Covenant on Economic, Social and Cultural Rights (ICESCR) to respect the human rights of LGBTI individuals.

2. EXECUTIVE SUMMARY

2.1 In recent years there has been some social traction in Korea towards the recognition of the rig hts of sexual and gender minorities. However, there has been a lack of government support or action to implement these rights.

2.2 In 2009, in its Concluding Observations (E/C.12/KOR/CO/3) in regards to Korea, the Commit tee raised concerns about the fact that the scope of economic, social and cultural rights under Korea's Constitution is narrower than in the ICESCR. To date, there remains very little legal r ecognition and protection of the rights of LGBTI individuals throughout Korea. Considerable work is required for Korea to achieve compliance with the ICESCR in respect of the rights of LGBTI individuals. The following matters are of particular concern:

2.2.1 The absence of anti-discrimination laws to protect LGBTI individuals, resulting in a f ailure to protect against widespread discrimination in a range of areas of everyday lif e, including employment, healthcare and education.

2.2.2 The failure of Korea to combat social exclusion, stigma and prejudice directed toward s LGBTI individuals, by failing to sanction hate speech in the media or to implement campaigns or strategies to raise awareness of LGBTI individuals and issues.

2.2.3 The failure of Korea to provide remedies to victims of discrimination based on sexual orientation and gender identity.

2.2.4 The failure of Korea to provide an accessible and acceptable process for individuals t o legally change their gender without discrimination or violation of their human right s.

2.2.5 The failure of Korea to recognise same-sex relationships.

2.2.6 The failure of Korea to provide equal work and education conditions and opportunitie s to LGBTI individuals.

Recommended Questions for the List of Issues: 2.3 There are many areas of law, regulation and policy where a considerable amount of work is re quired. Accordingly we recommend the Committee include in its List of Issues, questions as t o whether Korea intends to:

2 2.3.1 Enact legislation to protect LGBTI individuals from discrimination on the basis of the ir sexual orientation or gender identity (SOGI) in relation to their rights under the IC ESCR (Articles 2, 6, 7, 8, 9, 10, 11, 12 and 13).

2.3.2 Enact legislation that specifically prohibits discrimination in the workplace based on SOGI, as well as include LGBTI persons in the interpretation of sex discrimination and sexual harassment in existing labour laws (Articles 2, 6 and 7).

2.3.3 Provide remedies and support to victims of discrimination based on SOGI (Article 2).

2.3.4 Appoint a member of the National Human Rights Commission of the Republic of Kor ea (NHRCK) to prioritise the protection of SOGI rights and consult with civil society organisations in relation to this appointment (Article 2).

2.3.5 Ensure that individuals can obtain legal recognition of their gender without discrimin ation or violation of their human rights (Article 2).

2.3.6 Repeal Article 92-6 of the Military Criminal Act to remove discrimination against sa me-sex attracted men in the military (Articles 6 and 7).

2.3.7 Legislate for marriage equality to ensure that same-sex couples are able to enjoy the s ame legal protections and benefits as those granted to married heterosexual couples (Article 2, 9 and 10).

2.3.8 Implement measures to prevent discrimination against non-marital same-sex couples and different treatment of same-sex couples in comparison with heterosexual couples (de facto or common-law marriage) in terms of their right to adoption, as well as their access to social security and welfare (Articles 2, 9 and 10).

2.3.9 Denounce the use of ‘conversion therapy’ against LGBTI persons and ensure that gov ernment premises are not used to host anti-gay groups for 'conversion therapy' semina rs in the future (Articles 2 and 12).

2.3.10 Ensure NHRCK collaborates with LGBTI groups in Korea and implement awareness programs that teach respect and acceptance of gender variance and diversity of sexual orientation (Articles 2 and 13).

2.3.11 Reconsider the sex education guidelines developed in 2015, so that they do not exclu de homosexuality (Article 13).

3. LEGAL AND SOCIAL CONTEXT IN THE REPUBLIC OF KOREA

3.1 A quarter of a century of military authoritarianism in Korea concluded in the late 1980's. Kore a's efforts in regards to LGBTI rights must be viewed in the context of this history, for throug hout this time, political conditions were hostile and oppressive to all minorities in society, incl uding sexual and gender minorities.1

3.2 In more recent times, at the international level Korea appears to be taking important actions a nd making commitments in relation to the rights of LGBTI people. Korea is a signatory to the

1 Y D Bong, The Gay Rights Movement in Democratizing Korea, Korean Studies, Vol 32, 2008, p 88-89.

3 majority of UN human rights treaties. It delivered a statement to the UN Human Rights Coun cil regarding the human right violations on the basis of sexual orientation and called for the U N to give these issues appropriate attention.

3.3 Korea has been commended for showing 'leadership by condemning discrimination on the bas is of sexual orientation and gender identity...'.2 Korean Ambassador and Human Rights Council President, Choi Kyong-lim, also recently made a forceful appeal to the UN General Assembly's Third Committee not to allow the decision to appoint a LGBT Independent Expert to be challenged.3 Additionally, it has been noted by non-governmental groups that Ko rea's policies on LGBTI issues are relatively progressive.4

3.4 Korea's Constitution provides that there shall be no discrimination on account of sex, religion or social status. Further, the legislation establishing the NHRCK was seen as an attempt to realise article 11 (equal protection and non-discrimination) of Korea's Constitution. However, LGBTI rights and protections are not explicitly mentioned in the Constitution or any other legislation.

3.5 In Korean society, the traditional heterosexual concept of the family is not just an emotional a nd physical unit but also a prototype of social structure and life.5 As such, same-sex relationsh ips are not recognised, or widely accepted in Korea.

3.6 The pressure to marry someone of the opposite sex to continue the family blood line is strong and leads many to hide their sexual identity.6 Although homosexuality is not legally prohibite d in Korea, evidence does suggest that the LGBTI community continues to suffer a significant degree of abuse, harassment and discrimination.7

3.7 LGBTI individuals and organisations continue to face both societal and systemic discriminati on. For example, few entertainers are openly gay in Korea, and one who is claimed that vario us entertainment organisations fired him as a result.8 Further, Korean citizen and celebrity, Ki m Jho Gwang-soo, filed a lawsuit challenging the Seodaemun District Office's decision not to recognise his marriage to his male partner.

3.8 The Seoul Western District Court ruled that the union of two people of the same gender canno t be recognised as a marriage under the existing legal system. 9 An appeal against the Seoul Western District Court decision was dismissed later in the same year.10

2 Human Rights Watch, South Korea: Anti-Discrimination Bill Excludes Many, (6 November 2007), https://pantheon.hrw.org/legacy/english/docs/2007/11/05/skorea17234_txt.htm. 3 International Service for Human Rights, 'The integrity of the human rights system is at risk, warns Human Rights Council President,' (4 November 2016), https://www.ishr.ch/news/integrity-human-rights-system-risk-warns-human-rights-council-president. 4 International Gay and Lesbian Human Rights Commission, South Korea; LGBTQ Activists Ramp Up Efforts Under NewRight Wing Government, (January 2008), p 1. 5 Y Kim, S Hahn, 'Homosexuality in ancient and modern Korea', 8(1) 2006, Culture, Health and Sexuality, 59-60, p 60. 6 Jane Chung, Gay South Korean film director marries his partner in public, (2013, Reuters), http://www.reuters.com/article/us-korea-gay- marriage-idUSBRE9860B120130907. 7 See for example: Equaldex, LGBTI Rights in South Korea, Pew Research Center, (4 June 2013), http://www.equaldex.com/region/south- korea; Kathy Novak, CNN, 19 October 2015, CNN, The Problem with Being Gay in South Korea, http://edition.cnn.com/2015/10/18/asia/south-korea-being-gay/; Meg Cale, Matador Network, 19 December 2014, https://matadornetwork.com/abroad/like-gay-south-korea/. 8 US Department of State, 2015 Country Reports on Human Rights Practices - Republic of Korea, 2015. 9 Asian Correspondent, South Korea: Court rejects film director Kim Jho Gwang-soo's gay marriage lawsuit, (25 May 2016), https://asiancorrespondent.com/2016/05/south-korea-kim-jho-gwang-soo-gay-marriage/. 10 See Yonhap News Agency, 'S. Korean court rejects gay couple's appeal over same-sex marriage,' (6 December 2016), http://english.yonh apnews.co.kr/news/2016/12/06/0200000000AEN20161206010400315.html.

4 4. POSITIVE STEPS TAKEN BY KOREA

4.1 In 2003, after a recommendation from the National Korean Human Rights Protection Commit tee, the Youth Protection Committee of South Korea removed the classification of homosexua lity as 'harmful and obscene' from the Youth Protection Act 1997. The previous law justified c ensorship of LGBTI sites on the internet, prohibiting youths from accessing sites with homose xual content, which violated guarantees of the pursuit of happiness, equality, and freedom of e xpression enshrined in the Korean Constitution.11

4.2 Recent changes to the Korean Criminal Code have removed gender-specific language in provi sions against rape and other sexual crimes, thereby increasing the legal protections potentially available to LGBTI individuals who have been victims of sexual offences.12

4.3 From 2010 to 2013, four provincial education offices adopted Student Rights’ Decrees that pr ohibit discrimination in schools, including discrimination based on sexual orientation or gend er identity.13

4.4 In 2013, the Seoul Western District Court ruled that genital surgery was no longer required fo r transgender persons to legally change their gender status, on the condition that their internal reproductive organs were removed.14

4.5 In 2014, Seoul Mayor Park Won-soon stated that he 'personally agree[d] with the rights of ho mosexuals' and hoped that Korea would be the first Asian country to legalize same-sex marria ge.15 One of Mayor Park's election pledges was to adopt the Seoul City Charter of Human Rig hts, which would prohibit discrimination based on sexual orientation and/or gender identity. T he Charter faced tremendous opposition from anti-LGBTI groups, and as a result the clauses r elating to LGBTI rights were not passed.16 Despite this, public recognition of LGBTI rights b y a Korean politician reflects a shifting attitude in Korean society and leadership that tradition al anti-LGBTI views must be challenged.

4.6 In 2015, the Seoul Administrative Court overturned the Seoul Metropolitan Police Agency's i nitial decision to ban a gay pride parade at the June 2015 Korea Queer Culture Festival. 17 The event was held without any incident.18 The Court stated that 'unless there is a clear risk of dan ger to the public, preventing the demonstration is not allowed and should be the absolute last r esort'.19

4.7 At a regional workshop in Bangkok convened by the Asia Pacific Forum in March 2015, a rep

11 OutRight Action International, South Korea: Homosexuality removed from classification of "Harmful and Obscene" in youth protection law, 2003, https://www.outrightinternational.org/content/south-korea-homosexuality-removed-classification-harmful-and-obscene- youth-protection-law. 12 University of Toronto International Human Rights Program, South Korea, January 2015, http://ihrp.law.utoronto.ca/utfl_file/count/documents/WorkingGroup_Clinic/IHRP%20SOGI%20South%20Korea%20Report%202015.pdf. 13 US Department of State, 2014 Country Reports on Human Rights Practices - Republic of Korea, 2014. 14 See, The Korea Times, 'Sex Organ Operation Not Vital to Change Gender,' (17 March 2013). 15 Joel P. Engardio, 'Seoul Mayor Park Won-soon wants same-sex marriage in Korea as first in Asia', The San Francisco Examiner, (12 October 2014). 16 Jiyoon K, Over the Rainbow: Public Attitude Toward LGBT in South Korea, The Asian Institute for Policy Studies, (17 April 2015), http://en.asaninst.org/contents/over-the-rainbow-public-attitude-toward-lgbt-in-south-korea/. 17 Aengus Carroll, State Sponsored Homophobia, (11th ed, 2016, ILGA), http://ilga.org/downloads/02_ILGA_State_Sponsored_Homophobia_2016_ENG_WEB_150516.pdf. 18 Ibid. 19 HNGN, South Korea Court Overturns Gay Pride Parade Ban, 2015, http://www.hngn.com/articles/101643/20150618/south-korea-court- overturns-gay-pride-parade-ban.html.

5 resentative of the NHRCK stated that the NHRCK defends sexual minorities from discriminat ion and includes sexual orientation and gender identity in its human rights education program s.20

5. RIGHT TO LEGAL PROTECTION, EQUALITY AND NON-DISCRIMINATION (ARTICLE 2)

5.1 Article 2 of the ICESCR obligates State Parties to legislate where necessary to give effect to t he rights recognised under the ICESCR.

5.2 The Committee has established that "other status'" as recognised in Article 2(2) of the ICESC R includes sexual orientation and gender identity as among the prohibited grounds of discrimi nation.21

Current Position

5.3 To date, Korea has not enacted any laws that:22

5.3.1 Prohibit discrimination based on sexual orientation and/or gender identity; or

5.3.2 Provide remedies to victims of such discrimination or violence.

5.4 Discrimination against LGBTI individuals in Korea is a prevalent issue. A number of anti-LG BTI organisations actively attempt to impinge on LGBTI rights and promote discrimination a gainst them.23 A number of Christian organisations actively attempt to discourage and prevent pride events and actively promote unscientific and inaccurate notions that homosexuality is an 'addiction' capable of being cured through 'conversation therapy'.24 For example, on 20 Nove mber 2014, the People’s Solidarity for Healthy Society used physical and verbal aggression to prevent panellists from speaking at a public hearing on the Seoul Charter on Human Rights be cause the Charter contained language inclusive of sexual orientation and gender identity.25

5.5 Discouragement of homosexuality and diversity of gender orientation, as well as attempts to 'cure' LGBTI individuals encourages societies, families and friendship groups to reject LGBT I members among them, and directly contributes to stigma and discrimination.

Attempts to change discrimination law to include LGBTI rights

5.6 Despite previous attempts, Korea is yet to successfully enact comprehensive anti- discrimination legislation that extends to a person's sexual orientation or gender identity as grounds for protection. Most recently in 2013, two anti-discrimination bills that proposed to

20 Jessica Lynn Stern, State Endorsement of Conversation Therapy for Gays and Lesbians in South Korea, International Gay and Lesbian Human Rights Commission, (3 April 2015), https://www.outrightinternational.org/sites/default/files/Letter%20to%20South%20Korea %20FINAL.pdf. 21 Committee on Economic, Social and Cultural Rights, General Comment No.20, Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2), 10 June 2009, at [32]. 22 US Department of State, 2015 Country Reports on Human Rights Practices - Republic of Korea, 2015. Available at http://photos.state.gov/libraries/korea/49271/p_april_2016/HRR_ROK2016.pdf. 23 Jessica Lynn Stern, State Endorsement of Conversation Therapy for Gays and Lesbians in South Korea, International Gay and Lesbian Human Rights Commission, (3 April 2015), https://www.outrightinternational.org/sites/default/files/Letter%20to%20South%20Korea %20FINAL.pdf. 24 Ibid. 25 Ibid.

6 prohibit discrimination based on sexual orientation and/or gender identity, were withdrawn due to organised opposition from anti-LGBTI organisations and conservative Protestants.26

5.7 Korea's laws do contain anti-discrimination provisions, however these laws do not provide sp ecific protection for LGBTI individuals. Nonetheless, in 2016 the Korean Ministry of Justice reported that the Korean Constitution's equality principles (Article 11) apply to LGBTI persons.27

5.8 Article 30 of the National Human Rights Commission Act of the Republic of Korea 2001 (NH RCK Act) prohibits discrimination based on sexual orientation and authorises the NHRCK to review cases of such discrimination,28 however does not go one step further to provide for an enforceable remedy in cases of discrimination based on sexual orientation.29

5.9 A 2013 District Court case regarding recognition of a transgender person has taken a step tow ards recognition of the rights of transgender persons. In 2006, the Supreme Court drafted guid elines for legal recognition of a change of gender. Under the Established Rules of the Suprem e Court, Korean courts may only grant a legal change of gender if the applicant complies with a series of stringent requirements, which deprive the applicant of other civil liberties. Followi ng the decision of the Korean District Court, these requirements no longer include the need to have genital surgery.30 Although this decision is indicative of a society attempting to accept a nd provide for transgender persons, it does not remove the entire list of discriminatory require ments.

5.10 The case against the Seoul Metropolitan Police mentioned at paragraph 4.6 above reflects a ch anging attitude towards LGBTI individuals in Korea. This case demonstrated an objective app roach by the Court, which was free from bias or prejudice based on sexual orientation or gend er identity. Although this is a positive step forward, Article 2 of the ICESCR requires that ther e be appropriate legislation in place to prevent the need for such an application to be made in t he first place.

5.11 In light of the above, Kaleidoscope recommends that the Committee questions Korea on whet her it intends to attempt once again to pass anti-discrimination legislation and provisions of th e Human Rights Charter that relate to sexual orientation and gender identity.

6. RIGHT TO WORK, RIGHT TO WORK IN JUST AND FAVOURABLE CONDITIONS (ARTICLES 6 and 7)

6.1 Article 6(1) of the ICESCR obligates State Parties to provide its citizens with the right to wor k, which includes the right not to be deprived of work unfairly.31 Article 6(2) of the ICESCR provides details of what the steps that are to be taken by the State Parties in order to fulfil Arti

26 SOGILAW, Annual Review 2014: Human Rights Situation of LGBTI in South Korea, 2014, http://annual.sogilaw.org/download/annual_review_2014_web_en.pdf. 27 US Department of State, 'Republic of Korea 2015 Human Rights Report', Country Reports on Human Rights Practices for 2015, p. 21. Available at http://photos.state.gov/libraries/korea/49271/p_april_2016/HRR_ROK2016.pdf. 28 The legislation does not specify review of discrimination on the basis of gender identity. 29 Above n. 22. 30 The court ruled "while sex change operations involve the removal of wombs and other physical attributes, the sex organs themselves do not have to be operated on to be recognized as persons of the opposite sex". See, The Korea Times, 'Sex Organ Operation Not Vital to Change Gender,' (17 March 2013). 31 Committee on Economic, Social and Cultural Rights, “General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Righ ts (Art. 2 para. 2)”, adopted in the Committee's 42nd session, Geneva, 4-22 May 2009, UN Economic and Social Council, E/C.12/GC/20, 10 J une 2009, at 10, [32].

7 cle 6(1).

6.2 Article 7 of the ICESCR requires State Parties to provide just and favourable working conditi ons, including fair remuneration, safe and healthy working conditions and equal opportunity f or promotion. These rights must be enjoyed without discrimination as to sexual orientation, ge nder identity and intersex status.32

6.3 Article 8 of the ICESCR provides for the right of freedom of association, namely that State Pa rties must undertake to ensure that every citizen has the freedom to form and join a trade unio n and to engage in any lawful occupation, profession, trade, business or enterprise.

Current Positon 6.4 Currently, there are no express legal prohibitions on the right of LGBTI individuals to work a nd as mentioned, discrimination on the basis of sexual orientation is prohibited under Article 30 of the NHRCK Act.33 However, despite the legislative protection provided by Article 30, i n practice LGBTI individuals face difficulties in having full and equal participation in the wor kforce in accordance with Articles 6 and 7 of the ICESCR. The inability of LGBTI individual s to fully participate in the work force, in turn limits their access to, among other things, housi ng and health care.

6.5 LGBTI individuals face discrimination in the work force based on their SOGI34 and the lack o f access to membership of a trade union leaves them unprotected. 35 The absence of anti- discrimination laws that specifically protect LGBTI persons, as well as the failure for existing labour laws to be interpreted as protecting LGBTI persons against 'sex discrimination' and 'sexual harassment', leave these subpopulations exposed to significant workplace discrimination on the basis of their SOGI.36

6.6 The 2013 decision of the Seoul Western District Court detailed above at paragraph 5.9 has ha d a positive impact on the ability of LGBTI individuals to fully participate in the work force. Prior to this decision some LGBTI individuals were hesitant to disclose their national ID, whi ch is required in some circumstances to gain permanent employment, at the risk of facing disc rimination on the basis of their gender identity.

6.7 Although this case has made gaining permanent employment more accessible to certain LGB TI subpopulations, the decision is specific to issues of gender identity and has not eradicated a ll forms discrimination in the work place for LGBTI individuals. Further, due to the fact that this decision was handed down in the District Court, it does not operate as binding precedent for all South Korean courts.37

6.8 In light of the above and similar to the question proposed in paragraph 5.11, Kaleidoscope rec ommends that the Committee questions Korea on whether it intends to enact legislation that s

32 Ibid. 33 Article 30(2) of the National Human Rights Commission Act of the Republic of Korea 2001. 34 K Novak, The problem with being gay in South Korea, (19 October 2015), http://edition.cnn.com/2015/10/18/asia/south-korea-being- gay/; Discrimination lingers for queer community in South Korea, (20 March 2014), http://www.sbs.com.au/news/article/2014/03/19/discr imination-lingers-queer-community-south-korea. 35 Um Ji-won and Park Hyun-jung, The Hankyoreh, (16 March 2013), http://www.hani.co.kr/arti/english_edition/e_national/578323.html. 36 Above n. 34. Also see, The Japan Times, 'Japan to define workplace LGBT discrimination as sexual harassment, (28 June 2016), http://www.japantimes.co.jp/news/2016/06/28/national/social-issues/japan-define-workplace-lgbt-discrimination-sexual-harassment/. 37 The Hankyoreh, 'Landmark legal ruling for South Korean transgenders', (16 March 2013), http://english.hani.co.kr/arti/english_edition/e_national/578323.html.

8 pecifically prohibits discrimination in the workplace based on sexual orientation and/or gende r identity, as well as include LGBTI persons in the interpretation of 'sex discrimination' and 's exual harassment' in existing labour laws.

South Korean Military Penal Code

6.9 Article 92-6 of the South Korean Military Penal Code defines sexual activity between membe rs of the same sex as 'sexual harassment' and makes any such act punishable by one year impr isonment and dishonourable discharge from the Military.

6.10 In the case of 2008 Hun-Ga21 the validity of Article 92-6 (previously Article 92-5) of the Sou th Korean Military Penal Code was challenged in the Constitutional Court of South Korea. Th e argument put forward by the government was that the provision was necessary to 'preserve moral and unit cohesion'.38 The Court found that Article 92-6 did not conflict with the Korean Constitution and that the objective argued by the government was legitimate.39

6.11 The court also noted that sexual orientation is not protected under the constitution and therefo re it could not be invalid base on discrimination.40 Article 92-6 has now had constitutional review on three occasions (most recently in 2016) and on each occasion has been upheld as constitutional.41 This is highly troubling for LGBTI individuals living in Korea as service in t he South Korean Military is mandatory for all male citizens.

6.12 In light of the above, Kaleidoscope recommends that the Committee questions Korea on whet her it intends to challenge the current position of the Court in relation to Article 92-6 of the S outh Korean Military Penal Code.

7. RIGHT TO SOCIAL SECURITY (ARTICLE 9)

7.1 Article 9 of the ICESCR requires State Parties to recognise the right of everyone to social sec urity, including social insurance.

7.2 At present, transgender people in Korea receive no social security in relation to their transitio n. There is a significant amount of medical treatment required throughout the transition proce ss including psychiatric diagnosis, hormone therapy, and surgical operations, some of which a re required before Korean Courts will permit an individual to legally change their gender. Des pite this, the above treatment falls outside the scope of the National Health Insurance (NHI). As a result, individuals must bear the burden of high medical costs for their transition.

7.3 In addition, the Korean government has no concept of or control over '…whether medical acti ons related to gender reassignment are performed through appropriate procedures and whether appropriate fees are set'.42 In the absence of regulation of the medical industry in this regard, t ransgender individuals may potentially be exposed to over-inflated costs and sub-standard me dical treatment.

38 International Commission of Jurists, Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook, (2011), p 125, http://www.refworld.org/docid/4f9eae7c2.html. 39 Ibid. 40 Ibid. 41 The Hankyoreh, 'Constitutional Court upholds military's ban on sodomy', (4 August 2016), http://english.hani.co.kr/arti/english_edition/e_national/755208.html. 42 SOGILAW, Toward a better future: The direction of medical improvements, Information on Transgender Rights in Korea: Trans-Roadmap, http://transroadmap.net.

9 7.4 All Korean citizens are required to obtain NHI. In some cases, general cover is provided by a n employer and an individual's insurance will also extend to their legal spouse.43 However, un like heterosexual couples in a legal marriage or a de facto marriage, same-sex partners are not acknowledged as dependents and therefore cannot be covered under a partner's policy.44

7.5 The same standard of social security rights afforded to heterosexual individuals is not afforde d to LGBTI individuals. The ICESCR requires State Parties to recognise the right of every per son to social security, not just heterosexuals. Korea should develop its social security system t o align with the ICESCR.

7.6 There have been no attempts to change this position. Kaleidoscope recommends that the Com mittee questions Korea on whether it intends to further develop the NHI scheme to assist trans gender persons, and recognise same-sex relationships in so that all persons in Korea can realis e their right to social security.

8. PROTECTION AND ASSISTANCE TO THE FAMILY (ARTICLE 10)

8.1 Article 10 of the ICESCR requires State Parties to recognise that the family unit should be pro tected. This specifically includes protection of mothers during and after childbirth, and childre n.

Current Position 8.2 Currently in Korea, same-sex marriage is not legally recognised. Unmarried same-sex couples are therefore not afforded a number of rights that heterosexual married couples are.

8.3 This includes visa and immigration rights45 and recognition of the relationship for the purposes of inheritance and estate planning laws.46

8.4 There is presently no right for same sex couples to adopt children, or for lesbian couples to gain access to in-vitro fertilisation treatment.47

8.5 Prior to 2005, Korea used the Hoju system to register families. This system provided that ever y husband of every family was the registered head of the family. 48 The Hoju system was aboli shed in 2005, effective as of 2008, when the Constitutional Court of South Korea found it inc ompatible with Article 36 (marriage, family, mothers, health) of the Constitution.49 Although this decision has not resolved discrimination issues for LGBTI individuals in relation Article 10 of the ICESCR, it does show a progression towards a more inclusive view of family in Korea, which can have a positive impact on LGBTI individuals.

43 SOGILAW, Annual Review 2014: Human Rights Situation of LGBTI in South Korea, (2014), http://annual.sogilaw.org/download/annual_review_2014_web_en.pdf. 44 Ibid. 45 Just Landed, Permanent Residence in South Korea: what steps you have to take, http://www.justlanded.com/english/South- Korea/South-Korea-Guide/Visas-Permits/Permanent-residence-in- South-Korea. 46 Mee-Hyon Lee, South Korea International Estate Planning, (date not available). 47 Portland State University, LBGTI Study Abroad Information Packet, (2015), https://www.pdx.edu/ed-abroad/sites/www.pdx.edu.ed- abroad/files/LBGTQ%20Information%20Packet%2011.09.15.pdf. 48 Hyunah Yang, 'A Journey of Family Law Reform in Korea: Tradition, Equality, and Social Change', 8 Journal of Korean Law, (2008), 77-94, http://s-space.snu.ac.kr/bitstream/10371/85142/1/4.%20A%20Journey%20of%20Family%20Law%20Reform%20in%20Korea%20Tradition, %20Equality,%20and%20Social%20Change.pdf, at p 80. 49 Ibid, at p 87.

10 8.6 In light of the above, Kaleidoscope recommends that the Committee questions Korea on whether it intend to legally recognise same-sex relationships in future.

9. RIGHT TO HIGHEST ATTAINABLE STANDARD OF PHYSICAL AND MENTAL HEALTH (ARTICLE 12)

9.1 Under article 12 of the ICESCR, State Parties are responsible for recognising the right of ever yone to the enjoyment of the highest attainable standard of physical and mental health.

Current Position 9.2 At present, LGBTI persons continue to suffer mistreatment on the basis of their diverse sexual orientations and gender identities. In particular, the use of transformative treatments and thera pies on LGBTI persons by families and members of religious parties and anti-LGBTI organis ations denies LGBTI persons enjoyment of the highest attainable standard of physical and me ntal health.

9.3 In 2015, the International Gay and Lesbian Human Rights Commission (now known as OutRi ght Action International) wrote to the South Korean Government after it learned of 'conversio n therapy' seminars that were being held by anti-LGBTI organisations in government building s. Similar seminars have also been observed on NHRCK premises.50

9.4 The ongoing existence and apparent government endorsement of 'conversion therapies' for LGBTI persons is deeply troubling.

9.5 In light of the above, Kaleidoscope recommends that the Committee questions Korea on whet her it intends to denounce ‘conversion therapy’ as ‘unscientific, unnecessary, and deeply damaging’ and ensure that government premises are not used to host anti-gay groups for 'conversion therapy' seminars in the future.

10. RIGHT TO EDUCATION (ARTICLE 13)

10.1 In 2011, the Ordinance for Student Rights was passed in Seoul which requires schools to resp ect the rights of students regarding sexual orientation and gender identity. 51 This was a signifi cant event for LGBTI individuals, particularly youths, as it reflects a changing attitude in Kor ea that LGBTI rights should be recognised and protected. However, in 2014 the Busan High Court ruled that, in a case where a youth had taken his life due to homophobic bullying, the sc hool had not violated its responsibility to protect and to supervise students because teachers c ould not have foreseen the victim’s suicide.52 This case highlights the ongoing need for suppo rt for LGBTI youths both outside and inside the education system.

10.2 In 2013 the Seoul Metropolitan Government provided budget for the development of the Rain bow Youth Support Centre project for at-risk LGBTI youths who were socially and emotionally isolated.53 However, due to serious opposition from local churches and religious

50 See OutRight Action International, 'OutRight Letter to Officials about State Endorsement of Conversion Therapy for Gays and Lesbians in South Korea', https://ww.outrightinternational.org/content/outright-letter-officials-about-state-endorsement-conversion-therapy-gays- and-lesbians-south (accessed 9 January 2017). 51 Jihye Kim, Update: Victory! Seoul Student Rights Ordinance Passed with Sexual Orientation Gender Identity Clauses Included, OutRight Action International, (26 December 2011), https://iglhrc.wordpress.com/2011/12/26/update-victory-seoul-student-rights-ordinance- passed-with-sexual-orientation-gender-identity-clauses-included. 52 Busan High Court decision 2013Na51414, 2/12/2014. 53 The aim of the project was to provide counseling and support to at-risk LGBTI youths who were socially and emotionally isolated; parent

11 and anti-LGBTI organisations, the project was delayed indefinitely. By the time the project was set to be implemented, the local Seongbuk-gu Office had failed to apply for the project budget to be carried over to the 2014 fiscal year. The Seongbuk Rainbow Action and the Public Interest Law Centre of the People's Solidarity for Participatory Democracy filed a constitutional complaint on 30 March 2015, arguing that the right to equality, as well as the principle of the separation of church and state, had both been violated in this case.54

10.3 In 2015, Korea took a further step backwards, as far as LGBTI rights in the education system are concerned, when the Korean Government announced its new sex education guidelines. Th e new guidelines exclude all mention of homosexuality from school curriculum.55

10.4 Youths have a right and a need to be informed and educated about sex. In its General Comme nt 14, the Committee specifically acknowledged this as an aspect of the right to health.56 Furth er, Article 2 of the ICESCR ensures that LGBTI youths have the same rights as heterosexual youths to be informed about sex, and sexual matters that concern them. By prohibiting all me ntion of homosexuality in sex education, the Korean Government is not only denying youths a ccess to information they’re entitled to, but also contributing to the stigma and discrimination surrounding sexual orientation and gender identity.

10.5 In light of the above, Kaleidoscope recommends that the Committee questions Korea on whet her it intends to reconsider the sex education guidelines developed in 2015 so that they do not exclude homosexuality.

11. CONCLUSION AND RECOMMENDATIONS

11.1 Recent events depict a gradual, yet positive change in legal, economic and social attitudes tow ards LGBTI individuals in Korea. Social attitudes are gradually changing in favour of the rights of LGBTI individuals, and as a result pressure is growing for relevant laws to be adap ted in a number of smalls ways. However, further development of legal, economic and social circumstances for LGBTI individuals is required. Development of Korea's Constitution and k ey legislation is paramount if LGBTI individuals are to be afforded rights and protections in li ne with the ICESCR.

11.2 In view of the matters outlined above, Kaleidoscope recommends that the following issues be included in the list of issues to be raised with Korea in its review, namely whether Korea intends to:

11.2.1 Enact anti-discrimination legislation to specifically protect LGBTI individuals;

11.2.2 Enact legislation that specifically prohibits discrimination in the workplace based on sexual orientation and/or gender identity, as well as include LGBTI persons in the interpretation of 'sex discrimination' and 'sexual harassment' in existing labour laws. and family counseling; studies on the awareness of teachers and counselors of LGBTI issues; and manuals (pamphlets, videos) for creating a human rights-friendly school environment that respected diversity and differences for primary, middle, and high schools in Seongbuk-gu. See SOGILAW, 'Education/Youth', in Annual Review 2014: Human Rights Situation of LGBTI in South Korea, (26 June 2015), http://annual.sogilaw.org/review/review_2014_en/511. 54 Ibid. 55 Human Rights Watch, Letter to the Government of South Korea on Human Rights and Comprehensive Sexuality Education,(3 April 2015), https://www.hrw.org/news/2015/05/03/letter-government-south-korea-need-recognize-sexual-orientation-and-gender-identity. 56 Committee on Economic, Social and Cultural Rights, CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, on 11 August 2000 UN Doc. [E/C.12/2000/4], http://www.refworld.org/pdfid/4538838d0.pdf.

12 11.2.3 Provide remedies for victims of discrimination based on sexual orientation and/or gender identity.

11.2.4 Appoint a member of the National Human Rights Commission of the Republic of Kor ea (NHRCK) to prioritise the protection of SOGI rights and consult with civil society organisations in relation to this appointment.

11.2.5 Repeal Article 92-6 of the Military Criminal Act to remove discrimination against sa me-sex attracted men in the military.

11.2.6 Legally recognise same-sex relationships.

11.2.7 Implement measures to prevent discrimination against non-marital same-sex couples and different treatment of same-sex couples in comparison with heterosexual couples (de facto or common-law marriage) in terms of their right to adoption, as well as their access to social security and welfare.

11.2.8 Develop the NHI scheme to assist transgender persons.

11.2.9 Publicly declare, in accordance with the current global medical standards (e.g. the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)), that homosexuality is neither a disease nor an addiction,57 deno unce ‘conversion therapy’ as ‘unscientific, unnecessary, and deeply damaging’ and en sure that government premises are not used to host anti-gay groups for 'conversion th erapy' seminars in the future.58

11.2.10 Ensure NHRCK collaborates with LGBTI groups in Korea and implement awareness programs that teach respect and acceptance of gender variance and diversity of sexual orientation.

11.2.11 Reconsider the sex education guidelines developed in 2015, so that they do not exclu de homosexuality.

11.3 In its prior recognition of vulnerability on the basis of sexual orientation and gender identity, Korea has demonstrated international leadership and an intention to uphold and respect intern ational law.59 The implementation of non-discrimination legislation would reflect South Korea's commitment to oppose discrimination against LGBTI individuals and would fulfil Ko rea's obligation under the ICESCR to provide LGBTI individuals access to the full spectrum o f human rights. Such steps would also solidify the changing social attitude towards the rights and interests of LGBTI persons in Korea.

57 Above n. 50. 58 Ibid. 59 Scott Long, Letter: Exclusion Undermines Landmark Bill, Human Rights Watch, (5 November 2007), https://www.hrw.org/news/2007/11/05/letter-exclusion-undermines-landmark-bill.