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[LAW TALK]Recognition of transgender rights: Compassion and logic
An issue that has been drawing increasing public attention in Korea is the legal status of transgender individuals. On June 22, the Supreme Court finally ruled in favor of the legal recognition of transgender people in the case of an anonymous 54-year-old female-to-male transsexual who had a sex change operation at the age of 41.
The court held that those who had acquired the physical and psychological characteristics of the sex opposite to their gender at birth could change their gender description in the family registry.
Because transgender people have contradictory traits, there have been divided rulings among lower courts in Korea on whether to approve transsexuals' petitions to correct their genders in the public record.
There is no written law on how to define gender. Further, the Supreme Court's definition of gender in a 1996 rape case was also somewhat confusing. Although the court had considered the victim's physical appearance and psychological makeup as well as the public's perception and attitude toward the person, it emphasized the victim's chromosomes as the key determinant. Thus, in the rape case, the male-to-female transsexual victim was not held as a woman victimized by rape, but as a male victim of sexual assault, a lesser charge.
The 1996 definition of gender was also quoted in recognition of transgender individuals 10 years later, but this time the court put more emphasis on mental and social factors. The court went on to clearly hold that transsexuals have the constitutional rights to human dignity and the pursuit of happiness, and shall not be prevented from enjoying such constitutional rights unless there are public interest concerns, which might include military service avoidance or family disruptions. Actually, this aspect of the legal viewpoint was agreed to by the two dissenting justices as well.
The two dissenting justices argued over the critical issue of procedure. They viewed that only the legislative-not judicial-branch was competent to comprehensively define how to recognize transgender people, of which there may be many varieties, and the procedures necessary for such people to change the public record.
Yet, the eight justices' majority opinion was that even if the procedure at issue was such that was designed to rectify any errors recorded, its real purpose would be to reflect the true facts, pointing out that sex changes could not have been imagined when the Family Registry Act was legislated in 1960. A concurring opinion clearly supported the majority view that it would be advisable and necessary for courts to grant such a remedy in individual cases in the absence of a relevant law. In countries such as Germany and Japan, the courts also led the way before legislatures acted.
This ruling appears to be a case of judicial activism driven by the court's compassion toward the transgender minority. The court found the legal logic necessary to support its positive role in society.
Cho Chi-hyoung is a partner and an attorney-at-law at Hwang Mok Park P.C., one of Korea's leading law firms. HMP may be contacted at email@example.com or (02) 772-2700. - Ed.
By Cho Chi-hyoung