The NHRCK Recommended the Supreme Court Established Rule to be revised to prevent possible human rights violation related to the legal gender change of transgender people
- Recommendation to the Supreme Court to revise the "Guidelines for the Handling of Petition for Legal Sex Change Permit of Transgender People"
- Recommendation to the Chairperson of the National Assembly to enact a special law on legal gender change.
□ On May, 2023, the National Human Rights Commission of Korea (Chairperson Song Doo-hwan, hereinafter referred to as 'NHRCK') made the following recommendations to the Chief Justice of the Supreme Court and the Chairperson of the National Assembly regarding certain provisions of the Supreme Court's established rule, "Guidelines for the Handling of Petition for Legal Sex Change Permit of Transgender People" (hereinafter 'Guidelines for Legal Sex Change').
○ Recommended the following to the Chief Justice:
- Amend the "Guidelines for Legal Sex Change" in general, including Article 6, paragraphs 3 and 4, in order to comply with international human rights norms and the purpose of the Supreme Court en banc decision, and to prevent human rights violations.
- Establish relevant guidelines to ensure that no violation of the applicant's right to personality occurs in the trial of a transgender person's legal gender change application.
○ Recommended the following to the Chairperson of the National Assembly:
- Enact a special law stipulating the requirements, procedures, and methods for legal gender change for transgender persons.
□ The complainant, representative of Rainbow Action Against Sexual Minority Discrimination, and the victims are transgender individuals. The complainant filed a complaint with the NHRCK alleging that Article 6 of the Supreme Court's "Guidelines for Legal Sex Change" is only a reference, but some courts use it as a criterion for determining whether to grant permission in legal gender change cases, violating the victim's freedom of bodily integrity and right to self-determination over one’s body by forcing the victims to undergo unwanted gender affirming surgery or surgery to remove reproductive capacity.
□ The Supreme Court, in its written response and at the Hearing on the organized by the NHRCK, expressed the opinion that it is necessary to enact a special law stipulating the requirements and procedures for legal gender recognition, on the premise that it is not appropriate for the court administration to issue an opinion in relation to specific trial matters. However, in the absence of such legislation, the Supreme Court stated that there are limitations in that it cannot prescribe matters that are closely related to the rights and obligations of the people or that restrict the fundamental rights of the people without a mandate from the law, and they cannot provide criteria for the court on a issues to be decided by trial.
□ The NHRCK held that the application of Article 6 of the 'Guidelines for Legal Sex Change' as a criterion for judgment by some courts in legal gender change permit cases is a serious violation of the right to bodily integrity, the right to determine one's own destiny, and the right to sexual self-determination guaranteed by the Constitution by forcing applicants to undergo irreversible surgery without considering the necessity and risk of the it.
It also violated the principle of proportionality because the social benefit or public interest realized from gender reassignment surgery is not significant compared to the risk or harm imposed on the transgender person's rights and body. Furthermore, the requirement of surgical procedures without assessing the individual situation, even though there are medical alternatives such as hormone therapy, violates the principle of least intrusive measures.
□ Meanwhile, international human rights norms has recommended deleting the requirement for transgender people to undergo surgical procedures, including gender affirming surgery, to change their legal gender since around 2010 on the grounds that it is a harsh measure. The Supreme Court of Korea also ruled on November 24, 2022, that transgender people have the right to legal confirmation of their true gender according to their gender identity, which is a fundamental right that stems from their dignity and worth as human beings and constitutes the essence of the right to the pursuit of happiness, and should be guaranteed to the fullest extent possible.
□ The NHRCK also concluded that it is appropriate for the law to regulate the requirements and procedures for legal gender change for transgender persons, and that a special law should be enacted. The NHRCK recommended that the Chief Justice and the Chairperson of the National Assembly revise the Guidelines for Legal Sex Change in general and enact a special law on legal gender change.
