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IRB - Immigration and Refugee Board of Canada: South Korea: treatment of transgender people by society and authorities, including requirements and procedures to change one's gender on identity documents; requirements and procedures for exemption from obligatory military service for a male who is in the process of undergoing gender transformation; consequences for not completing military service (2014-March 2016) [KOR105460.E], 24. März 2016 (verfügbar auf ecoi.net)
http://www.ecoi.net/local_link/323950/463552_de.html (Zugriff am 16. Dezember 2017)

South Korea: treatment of transgender people by society and authorities, including requirements and procedures to change one's gender on identity documents; requirements and procedures for exemption from obligatory military service for a male who is in the process of undergoing gender transformation; consequences for not completing military service (2014-March 2016) [KOR105460.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Treatment of Transgender People

The US Department of State's Country Reports on Human Rights Practices for 2014 states that LGBT "individuals and organizations continued to face societal discrimination" (US 25 June 2015, 24). According to a 2015 report produced by the Sexual Orientation and Gender Identity Working Group at the University of Toronto, Faculty of Law, there is "still a large opposition towards LGBT rights among the country's large Christian base" (Sexual Orientation and Gender Identity Working Group Jan. 2015, 2). According to Country Reports 2014, in the first half of 2014, the National Human Rights Commission of Korea (NHRC) reported eight cases of discrimination based on sexual orientation and/or gender identity (US 25 June 2015, 24).

Sources indicate that transgender persons experience discrimination related to employment (LCC n.d., 8; Rainbow Action Dec. 2014, 8). According to a 2015 shadow report on LGBT rights in South Korea, produced for the UN Human Rights Committee by Kaleidoscope Australia Human Rights Foundation, a non-profit NGO that assists LGBTI communities in the Asia Pacific region (Kaleidoscope n.d.), if an individual is unable to obtain a legal change of gender, they are also unable to change the gender associated with their national ID number and card, which is an "all-purpose lifetime number" that "reveals both their date of birth and their gender" (ibid. Jan. 2015, 9). The Hankyoreh, an independent Korean daily newspaper (The Hankyoreh n.d.), reports that registration numbers that begin with a 1 indicate that the person is male, while a 2 indicates female (ibid. 16 Mar. 2013). The same source cites one case in which a female-to-male transgender person was unable to "work at companies that demanded a career history with a resident number" and instead, performed only temporary jobs (ibid.). The same source noted that "when he has gone to hospitals and government offices…the employees there have looked at his ID and said, 'this can't be you'" (ibid.).

According to a shadow report produced by the Lesbian Counseling Center in South Korea (LCC) posted on the website of OutRight Action International, an organisation that works with "LGBTQ activists around the world" to influence policy, document abuses, and respond to persecution (OutRight n.d.), there is a lack of "systematic" support for transgender persons in the Republic of Korea and that they "suffer from [the] high cost of hormone therapy and sex reassignment surgery, lack of follow-up measures, medical malpractice, and humiliation from…medical staff" (LCC n.d., 11). The Annual Review 2014: Human Rights Situation of LGBTI in South Korea, produced by the Korean Society of Law and Policy on Sexual Orientation and Gender Identity [1], similarly states that "psychiatric diagnosis, hormone therapy, and surgical operations" are not covered by national health insurance and as such, "transgender people must bear the burden of high medical costs on their own and cannot easily raise issues even when problems arise during medical [procedures]" (Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015], 81).

According to the Kaleidoscope report, "transgender persons experience physical harassment and assault, including rape" (Kaleidoscope Jan. 2015, 7). Without providing further detail, a joint civil society shadow report [2] provided to the Research Directorate by HaengSeongIn, an LGBT advocacy organisation founded at Korean University in 1997 (HaengSeongIn n.d.), states that a transgender person was stabbed and killed in 2014 (Rainbow Action Dec. 2014, 8). Conversely, Country Reports 2014 indicates that there were "no known cases of violence against LGBT persons" in 2014 (US 25 June 2015, 24). According to Transrespect versus Transphobia Worldwide (TVT), a research project initiated by the "advocacy network Transgender Europe (TGEU)" (TVT n.d.), a transgender person was murdered in the Republic of Korea in 2010 (TVT 2014, 1). Further and corroborating information, including other incidents of violence against transgender persons, could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

1.1 Treatment by Authorities

Sources state that there are no anti-discrimination laws which protect LGBT persons in South Korea (Kaleidoscope Jan. 2015, 15; Sexual Orientation and Gender Identity Working Group Jan. 2015, 2) or "provide remedies to victims of discrimination or violence" based on their LGBT identity (US 25 June 2015, 24). Sources further indicate that there is no law prohibiting discrimination based on gender identity (ibid.; Kaleidoscope Jan. 2015, 15). According to a report produced by the Asan Institute for Policy Studies, a non-partisan Korean think tank (Asan Institute for Policy Studies n.d.), LGBT rights in South Korea "have yet to be recognized or addressed" and, according to survey results, South Koreans are "disinterested" in LGBT rights, which allows "political entities to abstain from engaging the issue" (ibid. 17 Apr. 2015).

Information on the treatment of transgender persons by the police could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. Requirements and Procedures to Change Gender Status, Including on Identity Documents

According to sources, in 2006 a Supreme Court ruling was made allowing transgender persons to legally change their gender (Asan Institute for Policy Studies 17 Apr. 2015; Kaleidoscope Jan. 2015, 5; Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015], 7).

Sources state that legal recognition of gender reassignment is only possible after gender reassignment surgeries and sterilization (Open Society Foundation 19 Nov. 2015, 10; Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015], 76). The 2015 shadow report produced by Kaleidoscope indicates that an individual can have their gender legally changed and recognized by the courts if the applicant:

Is an unmarried Korean citizen over 19 years of age with no minor children;

Has suffered from continued gender dysphoria and had the sense of belongingness to the opposite gender due to being transsexual;

After having undergone psychiatric treatment or hormone therapy, still wished to receive surgical treatment and alter his/her physical appearance, including external genitalia through sexual reassignment surgery;

Has become sterile as a result of sexual reassignment surgery with zero, or extremely remote, possibility that they will return to their former gender;

Does not show indications that he or she filed the application for the purpose of committing a crime or evading the law;

Has parental consent. (Kaleidoscope Jan. 2015, 9)

The 2014 shadow report by Rainbow Action similarly states that in order to legally change one's gender, the applicant requires:

written diagnoses of transsexualism from two or more psychiatrists; absence of reproductive ability; completion of sex reassignment surgeries; absence of underage children; state of being unmarried; and written consent from parents (regardless of applicants' ages). (Rainbow Action Dec. 2014, 10)

Sources note, however, that there is no law for the legal recognition of sex reassignment, only the "Guidelines on the Clerical Processing of Cases of Transsexuals' Application for Legal Sex Reassignment" (Rainbow Action Dec. 2014, 8), which are established by the Supreme Court (Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015], 20).

The Sexual Orientation and Gender Identity Working Group report quotes information provided by the International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA) as stating that "males [must] have either completed or been exempted from military service" before they are able to undergo sexual reassignment surgery (Sexual Orientation and Gender Identity Working Group Jan. 2015, 9). Freedom House similarly states that an applicant must complete, or be exempted from, military service before gender reassignment surgery is "permitted" (Freedom House 2015).

Information on the application procedure to change one's gender on identity documents could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.1 2013 Seoul Court Ruling

According to sources, in 2013 a district court in Seoul ruled that transgender persons can change their legal gender status on their "family register listing" without "undergoing genital surgery" (The Hankyoreh 16 Mar. 2013) or "without altering the sex organ" (The Korea Times 17 Mar. 2013). The Korea Times, a Korean daily newspaper (ibid. n.d.), further reports that 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" (ibid. 17 Mar. 2013). The ruling allowed five female-to-male transgender persons to change their "legal gender status" (The Hankyoreh 16 Mar. 2013; Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015], 69) and register themselves officially as members of the opposite sex (The Korea Times 17 Mar. 2013). According to The Hankyoreh, there have been no similar rulings at the Supreme Court level (The Hankyoreh 16 Mar. 2013). The Annual Review 2014 states, however, that male-to-female transgender persons continue to be required to "undergo genital reconstruction" in addition to sterilization (Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015], 69). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Procedures for Exemption from Military Service for Transgender Persons

According to the 2014 Rainbow Action shadow report, in determining "potential conscripts' military fitness grades," a physical examination classifies "the degree of gender identity disorder (GID; gender dysphoria) into light/medium/severe;" the results of this assessment depend on the "arbitrary judgement" of the military physician (Rainbow Action Dec. 2014, 11). The Hankyoreh reports that when recruits undergo a physical assessment prior to military service, "an individual who has received one or more years of treatment or who has been institutionalized for one or more months because of sexual identity disorder is to be given level five, which signifies exemption from military service" (1 Aug. 2014).

According to sources, some military physicians performing the assessment required the transgender person to undergo "irreversible" surgical procedures, including orchiectomy [testicle removal] on suspicion of military evasion (Rainbow Action Dec. 2014, 11; Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015], 47). The Annual Review 2014 reported on a case where the Military Manpower Administration (MMA) "demanded" that a male-to-female transgender person undergo "genital surgery" in order to receive military service exemption in 2012 (ibid., 48). The individual underwent the surgery and was able to receive military exemption in 2013, after which she petitioned the National Human Rights Commission (NHRC) of Korea in 2014, "arguing that her human rights had been violated by the state" (ibid.). According to the report, no decision had been made by the NHRC as of April 2015 (ibid.). Further and corroborating information on the case, including a decision by the NHRC, could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3.1 Revocation of Exemption from Military Service

According to sources, the MMA has attempted to revoke exemption from military service from transgender persons on the grounds of fraudulently identifying as transgender for the purpose of military service evasion (The Hankyoreh 1 Aug. 2014; Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015], 45). The Annual Review 2014 report indicates that in 2012, the MMA investigated a transgender woman "on the criminal charge of military service evasion, and public prosecutors indicted her in the same year," alleging that she had "received female hormone therapy to evade military service" (ibid.). The same source further states that the Daejon District Courts, as well as the First Division of the Supreme Court, ruled in her favour and she was acquitted of the charges (ibid., 46).

Sources report that in 2014, 9 years after the initial military exemption, the MMA revoked the exemption of a "non-operative" male-to-female transgender person on the grounds that she could not physically demonstrate that she was a woman (ibid., 46; The Hankyoreh 1 Aug. 2014). According to the Annual Review 2014 report, in 2015 the Seoul Administrative Court ruled in favour of the woman, "stating that the revocation of the decision was unlawful"; the MMA did not appeal the decision (Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015], 46).

3.2 Consequences for not Completing Military Service

According to sources, military service is mandatory for male citizens in South Korea (US 25 June 2015, 6; Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015], 45) between the ages of 18 [or 19 (APALRC 2 Aug. 2013)] and 35 (BBC 23 July 2015). Sources further state that the penalty for failure to serve is up to three years in prison (APALRC 2 Aug. 2013; US 25 June 2015, 6). Country Reports 2014 states that there are no provisions for conscientious objection or alternative service arrangements (ibid., 6-7). According to the same source, the South Korean government reported that, as of July 2014, "336 persons were convicted for failing to report for military service and were sentenced to 18 months in prison" (ibid., 7). For further information on mandatory military service in South Korea, including length of service, grounds for exemption, and consequences of not completing service, see Response to Information Request KOR103844.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] The Korean Society of Law and Policy on Sexual Orientation and Gender Identity is a group of human rights lawyers and researchers that advocate for LGBTI rights in South Korea (Korean Society of Law and Policy on Sexual Orientation and Gender Identity [2015]).

[2] The shadow report was prepared by Rainbow Action Against Sexual-Minority Discrimination (Rainbow Action), a "coalition of 20 LGBT NGOs" in South Korea (Rainbow Action Dec. 2014, 3).

References

Asan Institute for Policy Studies. 17 April 2015. "Over the Rainbow: Public Attitude Toward LGBT in South Korea." <http://en.asaninst.org/contents/over-the-rainbow-public-attitude-toward-lgbt-in-south-korea/> [Accessed 8 Mar. 2016]

_____. N.d. "About the Asan Institute." <http://en.asaninst.org/about/about-the-asan-institute/> [Accessed 18 Mar. 2016]

Asian Pacific American Legal Resource Center (APALRC). 2 August 2013. "DACA and Conscription in South Korea." <http://www.apalrc.org/dp/node/167> [Accessed 18 Mar. 2016]

British Broadcasting Corporation (BBC). 23 July 2015. "Golfer Bae Sang-moon Loses S Korea Military Service Appeal." <http://www.bbc.com/news/world-asia-33632292> [Accessed 18 Mar. 2016]

Freedom House. 2015. "South Korea." Freedom in the World 2015. <https://freedomhouse.org/report/freedom-world/2015/south-korea> [Accessed 17 Mar. 2016]

HaengSeongIn. N.d. "About Solidarity for LGBT Human Rights of Korea." <http://www.lgbtpride.or.kr/> [Accessed 18 Mar. 2016]

The Hankyoreh. 1 August 2014. Choi Woo-ri. "Court Argues that a Man Wouldn't Abandon Masculinity and Take Female Hormones Just to Avoid Military Service." <http://english.hani.co.kr/arti/english_edition/e_national/649415.html> [Accessed 17 Mar. 2016]

_____. 16 March 2013. Um Ji-won and Park Hyun-jung. "Landmark Legal Ruling for South Korean Transgenders." <http://english.hani.co.kr/arti/english_edition/e_national/578323.html> [Accessed 17 Mar. 2016]

_____. N.d. "Introduction." <http://www.hani.co.kr/arti/ENGLISH/introduction.html> [Accessed 18 Mar. 2016]

Kaleidoscope Australia Human Rights Foundation. January 2015. Shadow Report to the UN Human Rights Committee Regarding the Republic of Korea's Protection of the Rights of LGBTI Persons. <http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/KOR/INT_CCPR_ICO_KOR_19381_E.PDF> [Accessed 14 Mar. 2016]

_____. N.d. "About Us." <http://www.kaleidoscopeaustralia.com/about-us/> [Accessed 18 Mar. 2016]

Korean Society of Law and Policy on Sexual Orientation and Gender Identity. [2015]. Annual Review 2014: Human Rights Situation of LGBTI in South Korea. <http://annual.sogilaw.org/download/annual_review_2014_web_en.pdf> [Accessed 17 Mar. 2016]

The Korea Times. 17 March 2013. "Sex Organ Operation Not Vital to Change Gender." <http://www.koreatimes.co.kr/www/news/culture/2013/03/517_132207.html> [Accessed 17 Mar. 2013]

_____. N.d. "About Us." <http://www.koreatimes.co.kr/www/common/aboutus.asp?bmx=1&wpage=aboutus> [Accessed 18 Mar. 2016]

Lesbian Counseling Center in South Korea (LCC). N.d. On the Discrimination Against Lesbians, Bisexual Women, and Transgender People. <https://www.outrightinternational.org/sites/default/files/Lesbian_Counseling_ Center_CEDAW49_Shadow_Report.pdf> [Accessed 14 Mar. 2016]

Open Society Foundations. 19 November 2015. License to Be Yourself: Forced Sterilization. <https://www.opensocietyfoundations.org/sites/default/files/lgr-forced-sterilization-20151120.pdf> [Accessed 14 Mar. 2016]

OutRight. N.d. "How We Work." <https://www.outrightinternational.org/how-we-work> [Accessed 18 Mar. 2016]

Rainbow Action. December 2014. Human Rights Violations on the Basis of Sexual Orientation and Gender Identity in the Republic of Korea: A Shadow Report. Provided to the Research Directorate in Correspondence with HaengSeongIn.

Sexual Orientation and Gender Identity Working Group. January 2015. University of Toronto, Faculty of Law. South Korea: Country Report for Use in Canadian Refugee Claims Based on Persecution on the Basis of Sexual Orientation or Gender Identity. <http://ihrp.law.utoronto.ca/utfl_file/count/documents/WorkingGroup_Clinic/IHRP%20SOGI%20South%20Korea%20Report%202015.pdf> [Accessed 14 Mar. 2016]

Transrespect versus Transphobia Worldwide (TVT). 2014. Trans Murder Monitoring Results 2014 Update. <http://transrespect.org/wp-content/uploads/2015/10/TvT-TMM-Tables_2008-2014-09_EN.pdf> [Accessed 21 Mar. 2016]

_____. N.d. "TVT Project." <http://transrespect.org/en/about/tvt-project/> [Accessed 21 Mar. 2016]

United States (US). 25 June 2015. Department of State. "Republic of Korea." Country Reports on Human Rights Practices for 2014. <http://www.state.gov/documents/organization/236662.pdf> [Accessed 15 Mar. 2016]

Additional Sources Consulted

Oral sources: The Asia and Pacific Transgender Network; Beyond the Rainbow Foundation; South Korea – Embassy of the Republic of Korea to Canada, Ottawa; Trans-Roadmap.

Internet sites, including: 76 Crimes; Amnesty International; The Asia and Pacific Transgender Network; Beyond the Rainbow Foundation; Chingusai; ecoi.net; Factiva; Gay Star News; Global Gayz; HaengSeongIn Solidarity for LGBT Human Rights of Korea; Human Rights Watch; International Lesbian, Gay, Bisexual, Trans and Intersex Association; Queer Koreans Alliance; Republic of Korea – National Human Rights Commission of Korea; Trans-Roadmap; United Nations – Refworld; World Professional Association for Transgender Health; Yonhap News Agency.