Introduction
The human rights situation of gender and sexual minorities in South Korea has been particularly troubling when compared to recent advances in other liberal democracies in Asia and beyond. Centuries of Confucian tradition and decades of military dictatorship have entrenched a conservative culture resistant to diverse forms of life and expressions of self-identity − especially to those that do not conform to the gender binary, heteronormativity, or a patriarchal family order. On top of this historical and cultural background, and especially over the last two decades, conservative Christian groups in South Korea have exerted strong political influence, strategically obstructing both the exercise of fundamental rights by gender and sexual minorities and the various efforts to secure their equality through the law.
Against this backdrop, the legislative and executive branches of the South Korean government have long shown reluctance to address the human rights demands of LGBTIQ+ groups and individuals. The National Assembly has yet to take legislative action aimed at improving their rights or protecting them against discrimination. Executive bodies have also remained notably passive, and at times openly hostile, revealing their susceptibility to strong opposition groups. In contrast, the judiciary − including the Supreme Court and lower courts − has in recent years taken meaningful steps in response to rights claims by gender and sexual minorities, employing legal interpretations that more proactively incorporate constitutional and human rights principles. These developments underscore the judiciary’s role in safeguarding the rights and equality of those whose identities and life forms are less favoured by the social majority.
This article offers an in-depth examination of recent developments in South Korea concerning the rights of gender and sexual minorities, with particular attention to the divergent attitudes of the different branches of government. The areas analysed include the correction of legal gender markers in official records for transgender persons, the military sodomy law, the rights of same-sex couples, freedom of assembly and association, and the ongoing struggles surrounding the adoption of anti-discrimination legislation. Key decisions of the Constitutional Court, the Supreme Court, lower courts, and the National Human Rights Commission are analysed from critical and comparative perspectives, alongside the relevant actions and inactions of the legislative and executive bodies. Each part, together with the concluding evaluation, highlights the crucial role of the judiciary when political actors deny minority groups and individuals equal rights and dignity.
The Rights of Transgender Persons
Earlier Supreme Court Decisions on Gender Register Correction
South Korea has yet to adopt a specific law enabling and regulating the correction of gender markers in the family register for transgender persons. Amid prolonged legislative inaction, the Supreme Court of Korea delivered a historic decision in 2006, approving for the first time a transgender person’s gender record rectification.Footnote 1 In that decision, the Court interpreted flexibly an existing provision under the Family Registration Act, which originally provided a procedure to correct obvious clerical errors in family registers.Footnote 2 The Court held that transgender persons could rely on this provision to apply for rectification of gender markers in the family register.Footnote 3 According to the justices, it was not the legislators’ intention to bar such rectification when they did not adopt a procedure specifically designed for it.Footnote 4 Lawmakers, the Court noted, could not have anticipated the possibility or necessity of such procedures at the time the Act was adopted.Footnote 5
The justices emphasised that the family register must reflect ‘true personal status relations at the current time’, which include the applicant’s present gender as legally assessed.Footnote 6 They affirmed that without rectification of gender markers in the family register, transgender persons risk being regarded as ‘abnormal’ in society, facing restricted access to employment and other life opportunities, thereby violating their dignity, the right to pursue happiness, and various other constitutional rights.Footnote 7 The Court stressed that denying rectification solely because of the absence of specific legislative provisions would betray its responsibility to uphold constitutional values through judicial practice.Footnote 8
Despite the historic significance of the 2006 decision, the criteria listed by the Court for eligibility were criticised as overly stringent and ultimately genital-centred.Footnote 9 These criteria included: persistent discomfort with the assigned gender and identification with the opposite sex; a strong desire to acquire the opposite sex’s genitals and other sexual characteristics; being unmarried and childless; and completion of full gender-affirming surgery with loss of reproductive capacity and acquisition of the opposite sex’s genital and bodily characteristics.Footnote 10
In 2011, the Supreme Court further restricted eligibility by treating some of these factors as categorical disqualifications.Footnote 11 It ruled that transgender persons who are married or have minor children are ineligible for rectification of gender markers in the family register, even if all other criteria are met.Footnote 12 The Court first reasoned that a transgender spouse’s gender record rectification would constitute a form of same-sex marriage, which is prohibited under South Korean civil law.Footnote 13 Regarding minor children, the majority opinion stated: ‘Social discrimination and prejudice against same-sex marriage are a stark reality. It is a betrayal of basic responsibility as a parent and as a member of society to leave minor children to be exposed defencelessly to such a reality.’Footnote 14 The justices concluded that rectifying the parent’s gender record would have ‘significantly negative impact’ on the child’s welfare, and that the societal and familial consequences were too great to permit rectification.Footnote 15 The 2011 decision drew substantial criticism for disregarding the urgent human rights needs of transgender persons while taking for granted social and legal discrimination against them.Footnote 16
Judicial Rules on Gender Register Correction
Following the 2006 decision, the Supreme Court adopted an internal judicial rule to govern applications by transgender persons for rectification of gender markers in the family register (Gender Register Correction Rule).Footnote 17 In addition to the factors listed in the decision, the Rule imposed further documentary requirements. Applicants were required to submit: medical certificates from at least two psychiatrists diagnosing the applicant as a ‘transgender patient’; a statement from the surgeon confirming that gender-affirming surgery had been performed and that the applicant’s appearance resembled the opposite sex’s genitals; a medical certificate confirming permanent loss of reproductive capacity; and written consent from the applicant’s parents (or, if none, from the closest lineal ascendants living with the applicant).Footnote 18
The Gender Register Correction Rule authorised individual judges to approve gender marker rectification only if all of the following conditions were also met: the applicant was a Korean citizen over 20, legally competent, unmarried, and childless; the probability of retransition was nil or extremely low; in male-to-female cases, military service obligations had been fulfilled or waived; the applicant had no criminal intent; and the rectification would have no significant adverse impact on the applicant’s legal status or relations, nor negative consequences for society at large.Footnote 19 In 2011, the Gender Register Correction Rule was amended to require that the applicant not be currently married or have minor children.Footnote 20
The Gender Register Correction Rule placed South Korea among the most restrictive jurisdictions regarding transgender persons’ gender marker rectification.Footnote 21 Amid criticism from civil society and the international community for its lack of a human rights perspective, some requirements − such as parental consent and proof of military service − were later removed.Footnote 22 The most recent revision, in February 2020, converted mandatory requirements into factors that courts ‘may examine and consider’.Footnote 23 Nevertheless, the Gender Register Correction Rule still grants judges wide discretion, resulting in incoherency and unpredictability across similar cases. In the absence of clear, rights-based legislation, transgender persons in South Korea continue to experience the application process as a matter of ‘luck’ rather than an entitlement grounded in human rights.
In May 2023, the National Human Rights Commission, South Korea’s independent human rights body, recommended that the Supreme Court amend the Gender Register Correction Rule to avoid infringement on human rights of transgender persons, including the provisions on full gender-affirming surgery and loss of reproductive capacity.Footnote 24 It further urged the National Assembly to enact a special law establishing a gender register rectification procedure for transgender persons.Footnote 25
Progressive Decisions by Lower Courts
The strict requirements imposed by the Supreme Court and the Gender Register Correction Rule have served as directives for lower courts. Many applications for gender register changes were rejected if the applicant had not undergone full gender-affirming surgery and permanently lost reproductive capacity.Footnote 26 Nevertheless, some judges departed from these conventional standards and issued progressive rulings. In 2013, the Seoul Western District Court allowed rectification of the gender register for a transgender man who had lost reproductive capacity but had not undergone external genital surgery.Footnote 27 The decision elaborated on the unconstitutionality of requiring such surgery, holding that it violates the applicant’s dignity and the right to pursue happiness.Footnote 28 The Court also pointed to the health risks of surgery, its prohibitive cost given the lack of national health insurance coverage, and the scarcity of qualified surgeons in South Korea.Footnote 29
In 2017, the Cheongju District Court Yeongdong Branch approved gender register correction for a transgender woman who had lost reproductive capacity but had not completed external genital surgery.Footnote 30 In 2021, the Suwon Family Court granted rectification to a transgender man who had neither lost reproductive capacity nor undergone genital surgery.Footnote 31 The Court stressed that requiring irreversible loss of reproductive capacity through procedures such as hysterectomy forces impairment of the body and infringes on transgender persons’ constitutional rights to bodily integrity, personality, and self-determination.Footnote 32 In 2023, an appellate panel of the Seoul Western District Court, for the first time at the appellate level, approved rectification for a transgender woman who had neither undergone gender-affirming surgery nor lost reproductive capacity.Footnote 33
A New Supreme Court Decision for Transgender Persons with Minor Children (2022)
Amid progressive development in lower courts and facing continuous criticism from civil society and the international community, the Supreme Court of Korea delivered a landmark decision in November 2022, overturning its 2011 decision that barred gender register correction for transgender persons with minor children.Footnote 34 The Court reaffirmed that transgender persons possess dignity and worth as human beings and hold the rights to develop their personality, pursue happiness, and attain legal recognition of their gender identity.Footnote 35 The justices emphasised that recognition of one’s true gender is an essential condition for a dignified life and must be guaranteed to the fullest extent possible.Footnote 36 They further acknowledged that eliminating the incongruity between a person’s actual and registered gender contributes to promoting social order and public welfare.Footnote 37 The Court ruled that compelling transgender individuals to endure profound suffering due to this incongruity until their children reach adulthood is unconstitutional, as it violates the fundamental rights to dignity, equality, and non-discrimination based on gender identity.Footnote 38
The Court also rejected the presumption that recognising a transgender parent’s gender would harm the child.Footnote 39 Children, it reasoned, may regard their parent’s authentic identity as natural.Footnote 40 The justices noted that rectifying a parent’s legal gender marker can in fact promote the child’s welfare by enabling the family to build stable social and economic foundations and by fostering secure and understanding relationships between parent and child.Footnote 41 The Court stressed that existing social discrimination against transgender persons, and possible prejudice their children may face, cannot justify denying such applications.Footnote 42 Rather, these realities demand that the state take affirmative measures to safeguard the basic rights and privacy of transgender persons and their families and to combat prejudice through legal and institutional reforms.Footnote 43 On this basis, the Court abandoned its earlier stance and held that the mere fact of having a minor child cannot constitute an independent ground for disqualification.
One dissenting justice expressed a contrasting view, arguing that the judiciary should take into account existing social prejudice against gender and sexual minorities, as well as potential harm to children if others discover that their parents are of the same gender.Footnote 44 The dissent further maintained that granting gender register rectification for transgender persons exceeds the proper scope of judicial power, and that it is for the legislature − after broadly consulting public opinion and expert views − to decide whether to establish a special procedure for that purpose.Footnote 45
Assessment
While the South Korean legislature has long neglected to adopt a special procedure for transgender persons’ gender register rectification, the judiciary has made notable progress in recent years to fill this legislative vacuum. The Supreme Court initiated the trajectory through a flexible interpretation of the existing legal framework and has gradually developed its jurisprudence. Although exhibiting clear shortcomings, the 2006 decision marked a historic step by providing transgender persons with a legal baseline for pursuing a dignified life. Yet, both the 2006 and 2011 decisions, along with the Gender Register Correction Rule, fell short of a human rights-oriented approach, as they reflected a genital- and sterilisation-centred perspective, upheld the traditional family order, and prioritised the status quo over urgent rights protection.
Before the Supreme Court’s 2022 ruling, lower courts had already taken a decisive turn toward more rights-based judicial interpretation. A series of district and appellate decisions created bottom-up momentum that eventually persuaded the Supreme Court to reverse its earlier stance in cases involving transgender persons with minor children. According to a recent report, the Court is now considering further amending the Gender Register Correction Rule to remove provisions listing gender-affirming surgery and loss of reproductive capacity as factors for judicial consideration.Footnote 46
However, the 2022 decision and incremental revisions to the Gender Register Correction Rule do not fully guarantee the rights of transgender persons. Without clear principles and statutory provisions, approval of gender register rectification remains contingent on the discretion of individual judges. As the dissenting opinion in the 2022 decision illustrates, judges are not immune from the influence of prejudice against social minorities, in a manner that results in rights-restricting interpretations.Footnote 47
Only concrete legislation grounded in a principled human rights approach can enable the internal judicial rule to function as a genuine supplement, providing procedural details. Such legislation should explicitly recognise the fundamental right to live in accordance with one’s gender identity and authentic self. Approval of gender register rectification must not hinge on balancing extraneous factors such as entrenched prejudice or perceived threats to a traditional order. The procedure should operate as a human rights safeguard, free from the risk of being misused to exclude ‘unlikable’ minorities from equal membership in society. Until a special statute is enacted, the current Gender Register Correction Rule should be revised to align with this rights-based standard. However, given the political underrepresentation of gender and sexual minorities in South Korea, it is unlikely that effective legislative action will be forthcoming in the near future. In this context, the passive stance as reflected in the dissenting opinion of the 2022 decision − eschewing a judicial role in addressing the matter and deferring it to the legislature and public opinion − risks consigning the lives of transgender persons to legal invisibility and prolonging their suffering.
Military Sodomy Law
Background and Relevant Statutory Provisions
The Military Criminal Act in South Korea criminalises consensual sexual intercourse or other physical sexual contact between soldiers of the same sex. Before its amendment in 2013, article 92-5 of the Act provided: ‘A person who commits sodomy or any other indecent act shall be punished by imprisonment for up to two years.’ This provision was revised to replace the term ‘sodomy’ (계간 or 鷄姦, literally meaning ‘chicken mating’) with ‘anal intercourse’ and to limit the category of the counterpart in the punishable act to military personnel: ‘A person who commits anal intercourse or any other indecent act with any person prescribed in Articles 1(1) through (3) [soldiers and military personnel] shall be punished by imprisonment for up to two years.’ Numerous soldiers who engaged in consensual same-sex sexual relations, whether inside or outside military camps, were convicted under this provision, and its constitutionality has been repeatedly challenged before the Constitutional Court.
Earlier Constitutional Court Decisions
In 2016, the Constitutional Court of Korea upheld for the third time the above sodomy provision under the Military Criminal Act.Footnote 48 Applying a proportionality test, the majority opinion of five justices viewed that the government pursued a legitimate purpose in adopting such a criminal provision − namely, ‘to establish the sound life of the military community and military discipline’.Footnote 49 Emphasising South Korea’s national security situation and its conscription system, the Court reasoned that criminal punishment of soldiers who engaged in the specified acts was an appropriate means of achieving this objective and that the provision satisfied the remaining requirements of the proportionality test.Footnote 50 According to the majority, the harm caused by restricting the rights of convicted soldiers − including the rights to sexual self-determination, privacy, bodily freedom, and equality − did not outweigh the public interest secured by the law: ‘the sound life of the military community and military discipline’, and ultimately, ‘national security, which is the premise of the nation’s existence and the basis of all freedoms’.Footnote 51 The four dissenting justices took the view that the provision was unconstitutional, but not because it infringed upon the constitutional rights of the claimant soldiers. Instead, they opined that the statutory text, by employing the ambiguous phrase ‘any other indecent act’, violated the principle of clarity required for criminal law provisions.Footnote 52
This 2016 decision, together with the two earlier rulings, reached the same conclusion on nearly identical grounds. All three decisions have drawn strong criticism from academia and civil society, particularly for the poor quality and weak persuasiveness of the proportionality analysis.Footnote 53 Critiques have found it especially problematic that the Court ignored the fundamental rights of soldiers, while relying on an unconvincing assumption of causation between consensual same-sex conduct and threats to military discipline and national security.Footnote 54
A Landmark Acquittal Decision by the Supreme Court (2022)
Despite the conservative stance maintained by the Constitutional Court, the Supreme Court of Korea delivered a milestone decision in April 2022 acquitting a soldier convicted under the sodomy provision.Footnote 55 Prior to this ruling, the Supreme Court’s position sided with the Constitutional Court, holding that physical sexual contact between males − even if consensual − ‘constitutes an act that evokes a feeling of disgust among the general public, contravenes good sexual morality, and erodes the healthy culture and discipline of the military community’, and is therefore punishable as an ‘indecent act’ under article 92-6 (or article 92-5 before amendment) of the Military Criminal Act.Footnote 56
In the 2022 decision, the Supreme Court reversed this view, stating that ‘it is reasonable to interpret that this provision does not apply to a case where anal intercourse or similar conduct occurred between same-sex military personnel upon mutual consent in private space’, since ‘it is difficult to evaluate such sexual engagement as a direct and specific infringement of the healthy culture and discipline of the military community’.Footnote 57 Explaining the rationale, the Court observed:
A general perception of whether a certain conduct constitutes an indecent act and a normative evaluation of homosexual relationships have changed along the evolution of the times and society. The charge that sexual activities between same sexes evoke a sense of sexual humiliation or a feeling of disgust among the general public, or that such acts transgress good sexual morals, no longer holds as common or reasonable.Footnote 58
The Court confirmed that, considering the Constitution and the legal order as a whole, this criminal provision should not apply to consensual same-sex conduct in private.Footnote 59 Punishing such acts would violate soldiers’ constitutionally protected rights, including equality, human dignity, the right to pursue happiness, and rights to privacy and sexual self-determination.Footnote 60
Two dissenting justices argued that the majority exceeded judicial authority and that decriminalisation should be determined legislatively.Footnote 61 Responding, four majority justices issued a supplementary opinion emphasising the importance of a ‘constitution-conforming’ and ‘constitution-oriented’ legal interpretation that reflects contemporary social realities and legal perceptions.Footnote 62 They highlighted the judiciary’s role in safeguarding individual human rights by providing remedies available under existing law, cautioning against using legislative inaction as an excuse for judicial passivity.Footnote 63
Constitutional Court Decision (2023)
Following the landmark 2022 decision by the Supreme Court, attention turned to the Constitutional Court to see whether it would revise its earlier stance and invalidate the military sodomy provision. In October 2023, the Court again upheld this provision, much to the disappointment of many.Footnote 64 However, the reasoning underlying the decision differed from prior rulings and can be summarised as follows.
The Constitutional Court applied the proportionality test to assess the constitutionality of the provision restricting the rights to sexual self-determination and privacy. As in previous cases, the majority opinion of five justices affirmed that the provision served a legitimate purpose: ensuring the sound life of the military community and maintaining military discipline.Footnote 65 Notably, the Court, in this decision, adhered to the Supreme Court’s 2022 interpretation, holding that the provision should be construed narrowly to apply only to non-consensual sexual conduct between same-sex soldiers or consensual conduct occurring in non-private space.Footnote 66 Under this narrowed interpretation, the majority concluded that the provision satisfied all proportionality requirements, as criminalising such conduct was deemed necessary to preserve military discipline, combat readiness, and ultimately, national security.Footnote 67 Following the Supreme Court’s reading of the provision without further elaboration, the majority also held that the provision did not violate the principles of clarity or nulla poena sine lege.Footnote 68
Regarding equality rights, the claimants argued that the sodomy provision constituted unjustifiable discrimination, given that similar conduct between different-sex soldiers is not criminalised.Footnote 69 The majority, however, found this argument lost much of its force once the Court adopted the Supreme Court’s recent construction and concluded that the provision did not infringe on equality rights.Footnote 70 The Court further held that the differential treatment between same-sex and heterosexual conduct does not amount to ‘gender discrimination’ explicitly prohibited by the Constitution, and, therefore, should be assessed under a rationality review rather than the stricter proportionality test.Footnote 71 Considering the military context, in which male soldiers share living and sleeping spaces, the Court found that criminalising same-sex sexual conduct to uphold discipline and maximise combat readiness satisfies the equality principle under the rationality standard.Footnote 72
Four justices dissented. All dissents agreed that the sodomy provision violated the principles of clarity and nulla poena sine lege.Footnote 73 Three of the dissenting justices further opined that the provision infringed on equality and proportionality principles, violating soldiers’ rights to privacy and sexual self-determination.Footnote 74 These three justices stressed that consensual same-sex conduct among soldiers cannot be presumed to undermine military life and discipline merely because it occurs outside a private space.Footnote 75 They considered that criminalising such conduct presupposes the abnormality of same-sex relations, a stance lacking constitutional legitimacy, and contravenes the principle of subsidiarity and the ultima ratio principle in criminal law.Footnote 76 The dissent further viewed that the harshest exercise of the state’s penal authority exclusively against consensual same-sex conduct violates the principle of equality, since there is no rational basis for treating such conduct differently from consensual opposite-sex conduct in pursuing the legislative purpose.Footnote 77
Assessment
Military sodomy law in South Korea has drawn sustained criticism not only from civil society but also from the international community, including multiple UN human rights bodies.Footnote 78 Nonetheless, the Constitutional Court of Korea has consistently upheld the provision through a series of constitutionality decisions. In these rulings, the Court’s proportionality analysis was loose and unconvincing, particularly in explaining why and how consensual sexual conduct could threaten military discipline and national security, and why such acts should warrant criminal punishment. These decisions contributed to prolonged legislative inaction and deterred the abolishment or amendment of the provision. Meanwhile, the Supreme Court made historic progress by adopting a constitution-oriented construction that significantly narrowed the provision’s scope of application so as to minimize potential rights infringement.
An unusual development occurred in 2023, when the Constitutional Court upheld the sodomy provision’s constitutionality by relying on the Supreme Court’s latest interpretation. This move by the Constitutional Court was exceptional, and also unexpected, particularly in light of the long-standing rivalry between the two highest courts. Whereas the Constitutional Court has generally tended to downplay the authority of the Supreme Court’s constitutional engagement, in this decision it directly adopted the scope and meaning of the provision as construed by the Supreme Court. What was further ironic was that the Constitutional Court relied on this interpretation as its principal ground for declaring the provision constitutional. As dissenting justices pointed out, the decision appears to have been informed by a bias against homosexuality, presuming such conduct to be inherently problematic, abnormal, and punishable.Footnote 79 It is a sound criticism that the Court abdicated its responsibility to undertake a rigorous constitutional review of the sodomy provision and instead strategically maintained its validity despite the provision’s discriminatory nature.
This compromising stance has left the provision vulnerable to incoherent application. Lower courts may not consistently follow the Supreme Court’s interpretation, and the Supreme Court itself may alter its position in the future.Footnote 80 Against the backdrop of legislative passivity on the rights of gender and sexual minorities, coupled with South Korean law’s particular conservatism on matters tied to the military and national security, another constitutional challenge by individual soldiers will be necessary to bring the military sodomy law to a definite end.
The Rights of Same-Sex Couples
Background and the Judiciary’s Basic Stance
To date, South Korea has not enacted legislation recognising same-sex marriage or other forms of legal partnerships between same-sex couples. At the same time, neither the Constitution nor the Civil Act provides a legal definition of marriage, nor do statutory provisions explicitly prohibit marriages between persons with the same gender. Nevertheless, the government and the majority of family law scholars in South Korea interpret the Constitution and Civil Act as precluding same-sex marriage. Their key references include terms such as ‘both sexes’(兩性) under article 36(1) of the ConstitutionFootnote 81 and ‘husband and wife’(夫婦) or ‘father and mother’(父母) in the Civil Act.
Other lawyers and scholars argue that same-sex marriage could be recognised under the current legal framework in South Korea without amending the Constitution or the Civil Act.Footnote 82 They note that article 36(1) of the Constitution was originally intended to emphasise gender equality and individual dignity within the family rather than to prohibit same-sex marriage. Similarly, expressions such as ‘husband and wife’ or ‘father and mother’ in the Civil Act are understood as conventional terms for ‘spouses’ or ‘parents’, without an intention to exclude same-gender spouses or parents.
In the absence of explicit legal provisions, the judiciary in South Korea has maintained a generally negative stance toward same-sex marriage. The Constitutional Court, though it has yet to adjudicate a same-sex marriage case directly, has on several occasions affirmed that ‘marriage remains a mental and physical union between one man and one woman’ or that ‘marriage is a union between a man and a woman based on affection and trust.’Footnote 83 As early as 1982, the Supreme Court stated that ‘Marriage is a morally and customarily justified union based on affection between a man and a woman for the purpose of sharing life for a lifetime.’Footnote 84 In its 2011 decision denying gender register correction to a transgender person in marriage or with minor children (discussed above), the Court explicitly reinforced the traditional understanding: ‘Generally speaking, marriage is constituted by a physical and mental union between a man and a woman, and our civil law allows marriage only between opposite sexes, and not between same sexes.’Footnote 85 In its 2022 decision allowing gender register correction for a transgender person with minor children (also discussed above), the Court did not specifically address whether its view on same-sex marriage had changed.
The first court decision to directly adjudicate the legal possibility of same-sex marriage was delivered in 2016. The Seoul Western District Court dismissed a case brought by a same-sex couple seeking to annul the government’s refusal of their marriage registration. The presiding judge wrote:
The marriage and family systems are not merely matters concerning two individuals, but … systems that form the foundation of our society and are closely intertwined with the ethical, philosophical, and religious views of each member of our society. Therefore, whether same-sex unions should be recognized as ‘marriages’ is a matter for legislature’s determination, following the collection of public opinion through procedures such as public hearings and a process of careful discussion and deliberation. This is not an issue that can be resolved through a novel judicial interpretation. Footnote 86
The decision further explained:
Our society recognizes the union between a man and a woman as marriage and accords it a valued status and legal benefits because, in general, such parties… form a family … and through marriage, childbirth, and child-rearing, new members of society are created, establishing the foundation to maintain and develop our society… Given the basic differences between these two groups… it does not contravene the constitutional principle of equality to treat them differently by recognizing only unions between a man and a woman as marriage while excluding same-sex unions. Footnote 87
Since this decision, no subsequent court rulings have indicated any substantive shift in the South Korean judiciary’s stance on the possibility of same-sex marriage under the current domestic legal framework.
International Same-Sex Marriage
As the South Korean legal system does not officially recognise same-sex marriage or any form of civil partnership, the government does not acknowledge such relationships even when they are legally recognised or registered abroad. As a legal basis for this position, the government, along with a number of international private law scholars in South Korea, cites a provision under the Act on Private International Law: ‘Where a foreign law shall govern but the application of the provisions of the foreign law is clearly contrary to good morals and other public order of the Republic of Korea, the provisions shall not apply’.Footnote 88 According to this view, the legal effect of marriage or life partnerships between same-sex couples may be denied in South Korea, even if such relationships are legally registered in another state, because they are deemed ‘contrary to good morals and public order’ of the country.
In February 2019, the National Human Rights Commission dismissed a petition filed by an English national who registered his marriage with a Korean man in the United Kingdom. The applicant sought a spouse visa from the Korean government to reside with his husband, who had obtained employment in South Korea. However, the Ministry of Justice rejected the visa application, and the applicant challenged the decision before the Commission. The petition was dismissed without deciding on the merits, and the Commission explained in a press release:
Our judiciary does not recognize agreements between same-sex partners as legal marriages under the Civil Act and does not treat such relationships as spousal. In order to grant marriage-based immigration status to a same-sex partner, social consensus on this matter and a change in judicial interpretation regarding the definition of marriage and spouses under the Civil Act are required.Footnote 89
Interestingly, the South Korean government adopted a different approach when a New Zealand ambassador, married to his male partner since 2013, assumed his post in Seoul in 2018. The Ministry of Justice issued a spouse visa to the ambassador’s partner as an exceptional measure.Footnote 90 The couple was also invited to a presidential event at the Blue House as a married couple.Footnote 91 Another exceptional category of recognition concerns members of the United States Forces Korea, whose same-sex partners are granted spousal status pursuant to the agreement between the two countries.Footnote 92 Recognition of same-sex marriage by the government thus remains an exceptional privilege granted only to specific non-citizen groups for political or diplomatic reasons, rather than a matter of human rights that ordinary individuals can claim.Footnote 93
Landmark Decisions on National Health Insurance Coverage
The Seoul High Court Decision (2023). After years of stagnation in the protection of legal rights and equality of those in same-sex relationships, the Seoul High Court (an appellate court) delivered a historic decision in February 2023.Footnote 94 The Court held that a same-sex partner is entitled to benefits under the national health insurance system as a dependent to the other partner with income. This decision is considered groundbreaking, as it marked the first time in South Korea that the judiciary accorded any legal effect to a same-sex relationship. Overturning a district court decision, the Seoul High Court reasoned that a heterosexual couple in a de facto marriage and a same-sex couple in a similar relationship are ‘essentially the same’, in that both form an emotional and economic union analogous to legal marriage, characterized by cohabitation, mutual support, cooperation, and devotion.Footnote 95 The Court concluded that treating the two groups differently with respect to social security benefits constitutes unjustifiable discrimination.Footnote 96
Notably, the Court did not directly recognise the plaintiff’s relationship as a de facto ‘marriage’ in the legal sense, maintaining the Supreme Court’s view that marriage consists of a man and a woman.Footnote 97 Instead, the decision reached a favourable outcome for the plaintiff through a different interpretive route, grounded in the equality principle. The Court first pointed out that government agencies’ exercise of discretion must comply with constitutional principles.Footnote 98 In this case, the National Health Insurance Agency had made a discretionary decision to recognise heterosexual partners in de facto marriages as eligible for spousal coverage, while denying equivalent benefits to same-sex partners in substantively identical relationships.Footnote 99 The Court emphasised that the situations of economically dependent partners in both groups are essentially the same in terms of their need for health insurance coverage, and therefore, treating them differently based on sexual orientation requires constitutional justification.Footnote 100
Although the Court applied a weaker rationality (non-arbitrariness) test rather than the proportionality standard, the judges stressed that the burden of proof to justify the differential treatment rests with the government, which failed to meet this obligation.Footnote 101 Accordingly, the Court held that denying national health insurance benefits to a same-sex partner was arbitrary and violated the equality principle.Footnote 102 As additional commentary, the Court highlighted that discrimination based on sexual orientation in public domains, including social security, is impermissible and stated that ‘belonging to minorities only means some differences and not wrongness’.Footnote 103 Concluding the decision, the judges emphasised that ‘in a society where the majoritarian rule prevails, there is a greater need for the recognition and protection of the rights of minorities, and that is the most important task for the judiciary as the last bastion of human rights.’Footnote 104
The Supreme Court Decision (2024). The government appealed the above Seoul High Court decision, and the case reached the Supreme Court. On 18 July 2024, the Supreme Court affirmed the High Court’s ruling, marking a historic moment for the rights of gender and sexual minorities in South Korea.Footnote 105 This became the first Supreme Court judgment to legally recognise the existence of same-sex couples and accord legal effect to their relationships. In its majority opinion, nine justices held that the measures taken by the National Health Insurance Agency were defective both procedurally and substantively. Procedurally, the Agency acted unlawfully in revoking the plaintiff’s dependent status without prior notice or an opportunity to contest the decision.Footnote 106 Substantively, the Court confirmed that treating a same-sex couple in a life partnership differently from a heterosexual couple in a de facto marriage, with respect to a dependent health insurance coverage, constitutes discrimination based on sexual orientation without justificatory grounds and violates the constitutional principle of equality.Footnote 107
The Court stressed that the national health insurance program is the most rudimentary social security system for all citizens and that the dependent plan exists to protect those in genuine need of coverage, considering economic and living circumstances.Footnote 108 The majority opinion recognised that a same-sex partner who maintains an economic union grounded in cohabitation, mutual support, cooperation, and loyalty equivalent to marriage, and who relies on the other partner for livelihood, is in the same need of coverage as a heterosexual dependent.Footnote 109 Crucially, the Court noted that exclusion from the plan inflicts harm that goes beyond financial disadvantage.Footnote 110 The lack of recognition under even the basic social security system − let alone the traditional family law regime − amounts to a serious infringement of human dignity, the right to pursue happiness, privacy, and equality before the law.Footnote 111 At the same time, the Court emphasised that recognising a same-sex partner as a health insurance dependent does not threaten legal stability, third-party rights, the traditional conception of marriage, or the family law system.Footnote 112 It carefully distinguished the definition of ‘spouse’ in civil and family law from the recognition of ‘dependent status’ in the health insurance context, underscoring that the two issues need not be conflated.Footnote 113
Four justices issued a concurring opinion, taking a more conservative stance. While agreeing that the Agency’s actions were procedurally unlawful, they rejected the view that heterosexual couples and same-sex couples are essentially the same. They reiterated that marriage is fundamentally a union between persons of different genders, and thus a same-sex partner cannot be considered a ‘spouse’ whether in a de jure or de facto sense.Footnote 114 In their view, this meant that the Agency’s differential treatment did not constitute arbitrary discrimination. They added that any recognition of same-sex partners as health insurance dependents should be left to the legislature, not the judiciary.Footnote 115
In a press release, the Supreme Court described the ruling as affirming the state’s duty to uphold the constitutional principle of equality, particularly in administering the social security system.Footnote 116 The Court emphasised that the decision more securely guarantees the constitutional rights of those in same-sex partnerships, including the rights to pursue happiness, privacy, and equality.Footnote 117 Two weeks later, the National Health Insurance Agency registered the plaintiff as his partner’s dependent.Footnote 118 Since then, at least three additional same-sex partners have reportedly been granted dependent status under the system.Footnote 119
Bills for the Life Partnership Relations Act
South Korean family-related laws, including the Civil Act and the Framework Act on Healthy Families, recognise only certain forms of family as ‘legitimate’ or ‘healthy’—namely, families constituted by marriage and/or blood lineage.Footnote 120 This legal stance has been criticised as resting on the ‘normal family ideology’, which treats the four-member household of heterosexual parents (typically with a male breadwinner) and their two children as the ideal and standard life model. Such ideology excludes many other existing and potential forms of families and life unions from legal recognition and protection.Footnote 121 The unitary ‘normal family’ model, built on heteronormativity and direct bloodlines, disregards the plurality of intimate relations in human existence and the significance of such relationships to one’s life meaning and well-being.Footnote 122
In 2014, and again in 2023, groups of National Assembly members from progressive parties proposed bills for a Life Partnership Relations Act. The bills aimed to recognise and support less traditional familial forms, including same-sex partnerships.Footnote 123 The 2023 Bill defines a Life Partnership as a relationship between two adults (not connected by marriage) who, on the basis of mutual consent, share their livelihood and household, and support and care for one another.Footnote 124 According to the bill, such partners could register their life partnership with the family court in their jurisdiction.Footnote 125 They would have duties of cohabitation, support, and cooperation;Footnote 126 rights to represent each other in daily affairs; and the ability to make agreements regarding property.Footnote 127 The bill also provided that life partners could adopt children jointly, and would be eligible for social pensions, health insurance benefits, protection from domestic violence, parental leave, succession of tenancy, authority to make critical medical decisions for each other, and the right to host a partner’s funeral.Footnote 128 In cases of dissolution, partners could claim division of property and would be required to arrange child support and care under family court supervision.Footnote 129
Both the 2014 and 2023 Bills faced fierce opposition from conservative church groups. For example, the opinion board for the 2023 Bill on the National Assembly website was flooded with 18,973 postings filled with hostile messages and hate speech against homosexuality and gender and sexual minorities, as part of organised campaigns to block the legislation.Footnote 130 In this hostile environment, neither Bill gained sufficient momentum to proceed to enactment.
There has been an effort by the government to diversify the legal and policy concept of family. During the presidency of Moon Jae-in, the Ministry of Gender Equality announced the 4th Basic Plan for Healthy Families (2021-2025).Footnote 131 The Plan sought to replace the term ‘healthy family’ in relevant legislation with more neutral terminology, and to revise the Civil Act’s definition and scope of family.Footnote 132 It further proposed introducing a new concept of a ‘caring community’ and extending to such relationships the protection and support previously reserved only for legally recognised families. Another important part of the Plan was to establish a statutory basis prohibiting discrimination on the grounds of family form and structure.Footnote 133 Upon its announcement, the Plan came under strong attack from conservative Christian groups, who denounced it as a disguised strategy to legalise same-sex marriage.Footnote 134 Under the Yoon Seok-yeol administration (2022-2025), none of the Plan’s proposed reforms were implemented. Explaining the government’s inaction, the Minister of Justice cited the risk of ‘shaking the traditional conception of marriage, given that the Plan might entail legalization of same-sex marriage’ as well as the alleged lack of national consensus on the issue.Footnote 135
Meanwhile, in response to a collective petition submitted in December 2019 by 1,056 individuals belonging to gender and sexual minorities, the National Human Rights Commission issued a decision in December 2021 recommending that the National Assembly enact legislation to ensure the basic rights of gender and sexual minorities and to provide same-sex couples with support and protection regarding housing, medical care, property rights, and other necessities for sustaining their life unions.Footnote 136 The Commission also recommended amending the Framework Act on Healthy Families to better reflect the diverse forms of family existing in practice, to acknowledge changing social perceptions of family, and to prevent prejudice and discrimination against gender and sexual minorities.Footnote 137
Assessment
While South Korean law contains no explicit prohibition on same-sex marriage, all branches of government have maintained heteronormative interpretations of marriage and family. This pattern extended to the national health insurance decision by the Supreme Court, as the Court addressed the issues in the context of equality and avoided determining whether the same-sex couple’s relationship could be recognised as marriage under current law.
Alongside the conservative stance of the government and judiciary, religious groups have led highly effective campaigns against the recognition of same-sex marriage.Footnote 138 This contrasts with Japan and Taiwan, where religious opposition has been less visible and influential.Footnote 139 Empowered by its 2017 Constitutional Court decision and the subsequent 2019 legislation implementing the ruling, Taiwan became the first country in Asia to legalise same-sex marriage.Footnote 140 Although Japan does not recognise same-sex marriage nation-wide, recent years have seen progressive developments at the level of local governments and lower courts.Footnote 141
Despite a less supportive social and political environment, the South Korean judiciary made a historic first step by recognising the legal status and rights of same-sex couples in an important public domain − the social security system. The national health insurance decisions by the Seoul High Court and the Supreme Court illustrate the judiciary’s crucial role in safeguarding the rights of social minorities, particularly when other branches of government remain more attuned to majority preferences. The majority-oriented bodies often stay passive or even hostile toward minority rights claims, treating such stances as politically safer or more advantageous. Caution is therefore warranted against judicial passivity − as seen in the concurring opinion of the Supreme Court’s national health insurance case and in the Seoul Western District Court’s dismissal of a same-sex marriage claim − which narrows the courts’ capacity to protect minority rights and defers the task to the legislature. The courts’ authority to pursue independent, rights-oriented interpretation has unique strength in securing the constitutional and human rights of minorities and in remedying their mistreatment.Footnote 142
Although the adoption of a special statute or an explicit amendment of the Civil Act would more fully ensure the rights of same-sex couples, it is unlikely that the National Assembly will act proactively in the near future.Footnote 143 Aware of legislative inertia, in October 2024, a group of human rights lawyers and eleven same-sex couples in South Korea, whose marriage registration applications had been rejected, announced their plan to launch the ‘Marriage Equality Litigation’ campaign.Footnote 144 This public litigation project involves appealing the government rejections in family court and filing a constitutional challenge with the Constitutional Court.Footnote 145
Following the Supreme Court’s national health insurance decision and the ongoing constitutional litigation for marriage equality, the Constitutional Court will face a heavier burden to provide compelling reasoning should it decide to reject demands for equal rights in familial life. As more requests arise for the recognition of same-sex marriage and life partnerships registered abroad, the South Korean government will confront increasing international pressure to justify its refusal.Footnote 146 More broadly, South Korean society and its legal system must grapple with fundamental challenges to transcend the traditional conception of family and to embrace diverse forms of human intimacy within the sphere of legal recognition and protection.Footnote 147
Restrictions on the Rights to Assembly and Association
The Right to Assembly
On numerous occasions, local governments in South Korea have prohibited LGBTIQ+-related events and activities from taking place in public spaces such as city squares or publicly used facilities. For example, in 2017, a non-profit organisation reserved a public sports facility in Seoul Dongdaemun District through the normal procedure to host a queer sports event. A week later, however, the local government notified the group that the rental approval had been cancelled due to a purported ‘facility maintenance plan’. The organisation challenged this abrupt cancellation in court. Proceedings revealed that the cancellation occurred immediately after the government agency received several anonymous phone calls condemning the event. Both the district and appellate courts held that the cancellation was unlawful, constituting discrimination on the basis of sexual orientation as well as a violation of the plaintiffs’ right to assembly.Footnote 148 The government was accordingly ordered to compensate the plaintiffs.
In September 2018, the Queer Cultural Festival held in Incheon Metropolitan City, which was the first pride parade ever scheduled in the city, was violently obstructed by more than 1,000 members of conservative Christian groups who gathered to disrupt the event.Footnote 149 Holding placards with hate speech such as ‘Homosexuality is a sin’ or ‘Ban the dictatorship of homosexuality!’, opponents punctured parade vehicle tires, assaulted the emcee, and tore up rainbow flags.Footnote 150 Participants were physically attacked and cursed,Footnote 151 and some wheelchair users were knocked to the ground.Footnote 152 Many of the planned events could not proceed.Footnote 153
In September 2022, the Incheon Metropolitan City Government prohibited the queer festival, citing a provision of the Act on Urban Parks and Green Areas barring activities that ‘cause others to feel disgust’.Footnote 154 Following a press conference by the organising committee and a finding by the city’s human rights officer that the prohibition was discriminatory, the government withdrew its decision.Footnote 155 Yet in 2023, the Incheon government again denied use of a central city square, claiming that the space had already been reserved by a Christian church group − despite irregularities in that group’s application process.Footnote 156 The queer festival was forced to relocate, and organisers filed suit against the city.Footnote 157
Similar patterns have emerged in other major cities. In both 2023 and 2024, the Seoul Metropolitan Government denied permission for the Queer Cultural Festival to use Seoul Plaza, the capital’s most symbolic public assembly space. While assembly applications are ordinarily approved on a first-come, first-served basis unless unlawful, applications for LGBTIQ+-related events have been subjected to an additional layer of review by the Citizens Committee for the Open Square Operation, a body constituted by the Seoul city government.Footnote 158 In 2023, the Committee prohibited the Festival from taking place at Seoul Plaza and instead approved a Christian church group’s event, submitted on the same day.Footnote 159 The Committee justified its decision by citing an ordinance provision allowing prioritization of events relating to children, youth, or public interest.Footnote 160 Human rights groups criticised the decision as violating the very ordinance invoked, which prohibits discrimination based on gender, disability, political opinion, religion, and other status.Footnote 161 In 2024, the Committee once again disapproved the Festival’s application, this time citing ‘weekend book reading’ events organised by the city government itself over an extended period.Footnote 162
In recent years, the National Human Rights Commission has received several petitions from university students whose planned events involving homosexuality-related contents were cancelled by universities established by Christian foundations. In 2015, one such university in Seoul revoked its approval for students to use a classroom to hold the ‘Human Rights Film Festival’, after learning that one of the films featured the story of a same-sex couple.Footnote 163 The students petitioned to the National Human Rights Commission, and the university responded that showing a film about homosexuality conflicted with its founding spirit.Footnote 164 The university also argued that, given the volume of protests it had received from outside the campus, it had to prohibit the event to prevent potential clashes or disorder.Footnote 165 The Commission reviewed the case and concluded that the university’s prohibition constituted wrongful discrimination based on sexual orientation and recommended that the university refrain from banning similar events in the future.Footnote 166 While acknowledging that universities enjoy constitutionally protected educational autonomy (article 31(4) of the Constitution), the Commission clarified that such autonomy is limited where it infringes on the fundamental rights of others, including students.Footnote 167 It also emphasised that this obligation extends to both public and private universities, since universities perform a public function of higher education, which distinguishes them from other religious organisations.Footnote 168
In another case, a different Christian foundation–established university imposed disciplinary measures on students who organised an on-campus lecture addressing feminist theories and issues related to gender and sexual minorities.Footnote 169 The university claimed that the lecture contravened its founding spirit and that it possessed the authority to prohibit such events based on its religious and academic freedom.Footnote 170 After reviewing the petition submitted by the sanctioned students, the National Human Rights Commission determined that the university’s disciplinary actions violated the principles of due process as well as the students’ freedom of expression, assembly, and privacy.Footnote 171 The Commission recommended that the university withdraw its disciplinary actions and take measures to prevent recurrence of similar incidents.Footnote 172
The Right to Association
A notable case concerning the right to association involved the Beyond the Rainbow Foundation, a non-profit organisation in South Korea supporting the rights of gender and sexual minorities. In 2014, the Foundation applied for registration as a legally recognised non-governmental organisation, first with the Seoul Metropolitan City Government and then with the National Human Rights Commission. Both agencies rejected the application, denying its relevance to their mandates.Footnote 173 As a final attempt, the Foundation applied to the Ministry of Justice, which formally rejected the application in 2015.Footnote 174
The Ministry justified its refusal on the grounds that it only supports organisations promoting ‘general human rights’ and would not allow incorporation of an organisation devoted to ‘specific social minorities’.Footnote 175 This reasoning was inconsistent with the Ministry’s established practice of approving registration for organisations dedicated to particular groups, such as children, migrants, and other vulnerable populations. The Beyond the Rainbow Foundation brought suit against the Ministry’s decision and prevailed in all instances − before the district court, the appellate court, and ultimately the Supreme Court.Footnote 176 All three courts held that the Ministry had no reasonable basis to refuse registration, since the Ministry is tasked with promoting human rights broadly, and the Foundation, by its nature, is an organisation advocating for human rights.Footnote 177
Assessment
The degree to which individuals and groups can actually enjoy the freedoms of assembly and association is a key barometer of their recognition as legitimate members of a democratic society.Footnote 178 As illustrated by the cases discussed above, gender and sexual minorities in South Korea do not enjoy equal access to public spaces or legal recognition. Their claims to self-expression and participation in the public sphere are frequently dismissed, reflecting the government’s perception of these groups as socially unpopular and politically weak. In such a biased social and political environment, requests by gender and sexual minorities for equal freedom of assembly and association are often treated as undue self-interest rather than legitimate human rights claims. The Ministry of Justice’s rejection of the Beyond the Rainbow Foundation’s registration plainly illustrates this mindset.
When societal prejudice and hostility toward certain groups are pronounced, the response of state organs becomes crucial in defending the rights and equal membership of these minorities. National and local governments in South Korea have often been submissive to, and even complicit with, opposition groups’ hostility toward gender and sexual minorities, invoking unprincipled excuses and, at times, deceptive tactics. In this context, the judiciary and the National Human Rights Commission have served as vital last resorts for minorities whose basic rights are regularly denied both by the government and by society.Footnote 179 The rights-based decisions of these organs underscore that safeguarding social minorities’ equal access to the public sphere is a fundamental requirement for the state to fulfil both its democratic and human rights obligations − and that this duty extends to all branches of government, national and local.
Prospects for the Anti-Discrimination Law
In 2007, under the Roh Moo-hyun administration, the Ministry of Justice drafted South Korea’s first comprehensive anti-discrimination bill.Footnote 180 Facing fierce opposition, however, the government revised the bill to remove several protected grounds, including family forms and situations, disease history, sexual orientation, language, country of origin, educational background, and criminal records.Footnote 181 This selective deletion was criticised for arbitrarily distinguishing between ‘persons one should not discriminate against’ and ‘those one may discriminate against’.Footnote 182 The revised bill ultimately did not advance toward legislation.
In 2011, members of the civil society established the South Korean Coalition for Anti-Discrimination Legislation, an alliance of human rights NGOs advocating for the adoption of a comprehensive anti-discrimination law.Footnote 183 Based on joint effort with the Coalition, two bills were proposed by Democratic Party legislators in 2013. Yet, due to severe threats and work disruptions orchestrated by religious groups, the legislators withdrew the bills. Nevertheless, the Coalition continued the legislative movement through various channels.
In June 2020, Jang Hye-young, a member of the National Assembly from the Justice Party, submitted a new Anti-Discrimination Act Bill (the 2020 Bill). Around the same time, the National Human Rights Commission recommended that the National Assembly adopt a comprehensive anti-discrimination law and provided its own model law.Footnote 184 By June 2021, the Coalition had collected over 100,000 signatures in support of the 2020 Bill, meeting the threshold for mandatory review by the National Assembly.Footnote 185 Other legislators also proposed similar bills that year. Despite these nationwide efforts, the bills could not advance due to persistent and systematic obstruction by opposition groups, and all proposals expired with the conclusion of the National Assembly session in May 2024. The Coalition, working with supportive legislators and lawyers, has since relaunched the legislative campaign during the current 2024-2028 National Assembly term.
The anti-discrimination bills proposed thus far share several common features. Along with other grounds, they explicitly list sexual orientation, gender identity, and family forms and situations as prohibited grounds of discrimination.Footnote 186 The bills cover multiple areas, including employment; the supply and use of goods, services, and facilities (such as public transportation, land, housing, medical services, commercial facilities, and cultural activities); education; public service; and the enforcement of laws and policies.Footnote 187 Both direct and indirect discrimination is prohibited.Footnote 188 The party accused of discrimination bears the burden of proving the legitimacy of their actions.Footnote 189 The bills also empower ordinary courts to order offenders not only to pay monetary compensation to victims but also to cease discriminatory acts and take adequate measures to rectify discrimination already committed.Footnote 190
While broadly consistent with anti-discrimination laws in other countries, these bills have faced fierce opposition in South Korea, particularly regarding the inclusion of gender and sexual minorities as protected groups. Opposition groups have pursued strategic campaigns to block their adoption, spreading misinformation about the bills’ content and using hate speech and propaganda to generate negative public sentiment about the anti-discrimination law. Typical slogans include ‘Anyone who criticizes homosexuality will be imprisoned’, ‘The law is for homosexual dictatorship and will ruin teenagers’, ‘The sexual morality of the country will be destroyed’, and ‘HIV/AIDS will become prevalent’.Footnote 191
In the absence of a comprehensive anti-discrimination law, South Korea currently relies on a few statutes that prohibit discrimination against limited groups in specific areas. These include the Act on the Prohibition of Discrimination Against Persons with Disabilities and Remedy Against Infringement of Their Rights (protecting persons with disabilities), the Equal Employment Opportunity and Work-Family Balance Assistance Act (prohibiting employment discrimination between women and men), and the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion (prohibiting age discrimination in employment). The adoption of a comprehensive anti-discrimination law would effectively extend the application of the equality principle beyond these narrow areas and broaden protection to cover a wider range of groups and individuals, including gender and sexual minorities.Footnote 192 It would also supplement the South Korean Constitution’s equality provision (article 11), which only stipulates gender, religion, and social status as prohibited grounds of discrimination.
Another notable strength of the proposed Act is its provision of diverse remedial measures, including cessation and rectification of discriminatory acts, restitution, and other contextually adequate forms of redress for victims. This stands in sharp contrast to the current civil law regime in South Korea, which largely limits remedies for wrongdoings to monetary compensation. The Act would also carry a broader preventive function, guiding both state and non-state actors to exercise greater caution and to refrain from engaging in direct or indirect discrimination. In circumstances where opponents of anti-discrimination bills invoke freedom of speech and religious rights as justifications for their opposition, the explicit prohibition of hate speech, violence and other discriminatory or demeaning behaviours against minorities, accompanied by proactive remedial measures is particularly vital.Footnote 193 Such protections are indispensable for especially vulnerable groups in South Korea, such as gender and sexual minorities, people with Chinese ethnicity, Muslims, migrant workers, and refugees.
Heightened remedial and preventive functions guaranteed by enforceable court orders would also compensate for the limited authority of the National Human Rights Commission, whose decisions remain recommendatory in nature. Moreover, the adoption of the Act would ease the burden currently placed on the judiciary, which, without the specific statute, must adjudicate discrimination cases on the basis of abstract civil and administrative provisions. With concrete statutory grounds, equality protection would be implemented in a more coherent and predictable manner, less dependent on individual judges’ divergent views on minority rights − as evidenced by divided opinions in the court cases examined in this article.
Amid increasing international pressure for the enactment of a comprehensive anti-discrimination law in South Korea,Footnote 194 it remains to be seen whether meaningful legislative momentum can be finally secured during the current session of the National Assembly.
Concluding Evaluation
As examined in this study, South Korea continues to face significant challenges in ensuring basic rights and equality for gender and sexual minorities, leaving many important human rights demands unfulfilled. The legislature and executive branches have long been negligent in fulfilling their obligations to respect, protect, and fulfil the human rights of these ‘less popular’ social minorities.Footnote 195 Their responses have ranged from indifference to hostility, demonstrating marked susceptibility to the strategic obstruction and vocal opposition of conservative groups. These political branches have not only remained passive in deterring disruptive and rights-violating actions by opposition actors, but their prolonged inaction and discriminatory responses have themselves obstructed the realisation of equal rights and dignity. This subservient posture has, in turn, reinforced the confidence and political influence of opposition groups, which have succeeded in almost every instance of intervening to impede gender and sexual minorities’ rights.Footnote 196
In this context, the judiciary in South Korea has made notable progress in securing gender and sexual minorities’ rights in multiple areas. Lower courts as well as the Supreme Court have gradually adopted more human rights-oriented interpretations, as exemplified in decisions easing gender record rectification for transgender persons, substantively invalidating the military sodomy law, expanding national health insurance coverage for same-sex couples, and safeguarding the rights of gender and sexual minorities to assembly and association. These cases demonstrate the judiciary’s crucial and unique role in protecting politically disempowered and socially marginalised minorities. Courts are empowered and expected to exercise this role based on constitutionally guaranteed judicial independence, ensuring equal human rights through principled legal interpretation and rights review.Footnote 197 The National Human Rights Commission has also delivered important decisions supporting the rights of gender and sexual minorities. Together, the judiciary and the Commission serve as essential last-resort venues for securing the rights of minorities whose claims lack clear majoritarian support.
It is notable that the Constitutional Court of Korea has maintained a more passive and conservative stance, as exemplified by a series of its rulings on the military sodomy law. Possessing broad constitutional review powers and heightened sensitivity to public opinion, the Court has been less proactive in promoting gender and sexual minorities’ rights than in areas such as women’s equality, which enjoy greater societal support. The Court will face an increasing number of constitutional claims from these minorities and will be under heightened pressure to provide compelling reasoning, including on demands for equal rights to marriage and family life.
Substantial challenges remain across all examined areas. Transgender persons’ right to live in accordance with their gender identity must be fully guaranteed as a matter of human rights, rather than subject to judicial discretion. The sodomy provision under the Military Criminal Act should be unequivocally declared unconstitutional and abolished. Legal recognition and protection of same-sex partnerships should extend beyond national health insurance benefits to other areas of life. The adoption of the Life Partnership Relations Act should acknowledge and support diverse forms of intimate and caring relationships that exist in reality, in addition to guaranteeing same-sex couples’ equal right to marriage and family. Gender and sexual minorities must be able to exercise their right to expression and democratic participation in a free and safe environment, with equal access to public spaces. The adoption of a comprehensive anti-discrimination law including sexual orientation, gender identity, and family forms as prohibited grounds is urgently needed.
All branches of government should uphold their fundamental obligations to respect, protect, and fulfil human rights. State organs must refrain from violating the rights of gender and sexual minorities and exercise heightened due diligence to protect them from discrimination, violence, hate speech, false propaganda, and strategic obstruction by non-state actors. Legislative and administrative bodies should not adopt a submissive stance for political expediency, but must take proactive actions to ensure that social minorities can fully exercise their rights. Through principled, human rights-oriented legal interpretation, the judiciary must continue to play a critical role in affirming these obligations of the state and empowering individuals to claim equal rights, dignity, and justice despite social and historical disadvantages and political underrepresentation.
Funding statement
This article was funded by the 2026 Research Fund of the Seoul National University Asia-Pacific Law Institute, donated by the Seoul National University Foundation.
Open access
