One, but not the same

“The fight for equal right,’’ by Kwon Yong-shin

Why Korea won't have an anti-discrimination law anytime soon

By Kim Tong-hyung

After applying for a mid-level position at a Samsung affiliate, Kwak, 34, was taken aback after an executive at her job interview demanded to know whether she and her husband had plans for children. She didn’t get the job and now wonders whether a “no” would have mattered as much as her MBA credentials.

Park, an unemployed 30-year-old, belatedly began studying for the civil service exam after becoming less confident about finding a job at a private company. He passed the job interviews at three different companies over the past two years, only to be rejected after the mandatory health checkup, apparently because the employers then realized they were talking to a hepatitis B carrier.

Activist Kim I-chan tells the story of some Asian migrant workers, who under questionable circumstances were sent to a different farm than the one stated on their contract to be overworked, underpaid and abused by an employer who didn’t even provide them with a urinal.

A gay rights activist from the group Chingusai talks during an interview. / Korea Times photo by Shim Hyun-chul

These are just some of the many experiences that have been building a general acceptance of the need for anti-discrimination legislation in the country, now in its third decade of democratization. But this is an agreement that shatters the moment the talks expand beyond heterosexuals.

It’s possible that Korea will get its own anti-discrimination law soon, theoretically even by the end of the year. But that’s if only lawmakers find a way to justify leaving off from it gay, lesbian, bisexual and transgender (LGBT) people, although it has been the gay rights movement that has been most active in the fight for equality legislation.

“I think the possibilities of the government including sexual minorities in the law are close to none. It really wouldn’t be an anti-discrimination law at all, so it’s hard to imagine opposition lawmakers endorsing it. The bill, whenever it comes out, will represent birth astride a grave,” said Hong Sung-soo, a Sookmyung Women’s University law professor, who has been close to the discussions both on the political and grass-roots levels.

“Religious groups have prevented the government from including sexual minorities in past bills and their stance hasn’t changed. There isn’t much reason to think that policymakers or politicians will be willing to test their patience now under Park Geun-hye’s conservative government. The process is turning circular and pointless.”

The introduction of some grand law on anti-discrimination and human rights would mark a groundbreaking moment for the country.

This is where women face the harshest gender apartheid at home and work among developed economies. Disabled people are marginalized and migrant workers are harassed in a society that continues to display a stunning lack of awareness on racism. Businesses are unapologetic about making employment decisions based on a person’s age, social origin or medical history.

But the efforts for equality legislation have been repeatedly derailed because the unyielding wall of resistance reappears whenever the discussions leave the realm of gender, race, age, disability and religion and touch the ground of sexual orientation and gender identity.

At the start of the year, there were three draft anti-discrimination laws submitted to the National Assembly, authored by opposition lawmakers Kim Han-gil and Choi Won-sik of the liberal Democratic Party (DP) and Kim Jae-yeon of the leftist Unified Progressive Party (UPP). All three sought to prohibit singling out individuals for less favorable treatment based on certain traits, including sexual orientation.

This provoked furious complaints by the country’s mighty Protestant church, led by the conservative Christian Council of Korea (CCK), which refuses to support any equality law unless the homosexuality aspect is dropped from it. After being bombarded by phone calls and online comments, the DP lawmakers withdrew their bills. Kim has stuck with her bill but she’s also stuck with a party as popular as gout.

All eyes on Justice Ministry

The country could have another discrimination law debate soon.

In a regular review by the United Nations Human Rights Council in October last year, Korea was urged by nine other member states to shows more pace in its efforts to legislate a comprehensive anti-discrimination act. Spain and the Czech Republic in particular demanded that Korea include protection for sexual minorities in that law.

This was definitely an ego blow in a country that had taken so much pride in becoming a permanent member of the council. As a result, the Ministry of Justice now finds itself making its third attempt at an anti-discrimination law when the memories of its failures in 2007 and 2010 remain fresh.

In his policy report to President Park in April, Justice Minister Hwang Kyo-ahn, said the ministry’s goal was to introduce its bill within the year, likely by the National Assembly’s regular session in September.

Sticking its neck out for the Justice Ministry bill is the flip-flopping DP. The party, reeling from a lost presidential election and declining public support, still considers itself as too fragile to withstand another row with Christian groups. But it’s willing to show more fight in defending its liberal values if the government is there to absorb the hits.

“It was difficult for us earlier because the whole debate shaped into DP vs. the church. That was something we needed to avoid. It’s critical that the government gets more actively involved in the process,” said another DP lawmaker, who didn’t want to be named.

The problem is that the Justice Ministry isn’t too eager to mess with the church either. Hwang’s report to Cheong Wa Dae was a month before church groups hounded the DP into submission. Ministry officials are no longer showing conviction that there will be a bill by the end of the year.

The National Assembly confirms that the ministry’s human rights policy division, which is in charge of writing the bill, has yet to book an appearance at the Assembly’s legislation and jurisdiction committee for this year.

“We have completed forming the committee to author the bill, bringing together mid-level ministry officials and civilian experts, including university professors and other law professionals. The team has been activated and the discussions are underway,” said Park Byeong-rae, an official from the ministry’s human rights division, who refused to reveal the names on the committee.

“The focus is to gather diverse opinions from different parts of society and also examine whether the demanded changes can match our social environment and legal systems. No internal target has been set on when the bill should be completed.”

Park declined to comment on whether the sexual orientation aspect was being debated in the committee. He did say that the bill will be influenced by the works of a similar committee run by the ministry in 2010, the last time it attempted to legislate an anti-discrimination act.

Park refused to reveal any material from 2010. A university professor who was on that committee, not wanting to be named, said they had nearly produced a fully-written bill, but failed to finish it due to indecision over including sexual minorities.

It was in January 2011 when the ministry admitted to have given up on the legislation, caving into pressure from church groups, which went as far as to take out newspapers ads that asked “How can my daughter-in-law be a man?” Church groups had previously derailed the ministry’s anti-discrimination bills in 2000 and 2007 over the same basic arguments.

Fighting the fight

During the 2010 debacle, the DP made it clear it wouldn’t support a government anti-discrimination bill if sexual minorities were excluded from it. The party will likely retain that stance on future bills, continuing its elaborate dance of nonsense between conservative Christians and the rest of the civic community.

“It’s not like anti-discrimination laws are complicated. They are broad brushed, the elements are rather predictable, and there is almost nothing new to add to the bills that have been written so many times over and over again in previous years,” said Hong from Sookmyung University.

“It seems very, very likely that we will be walking into a near scene-by-scene repeat of 2010.”

While the immediate outlook doesn’t look promising for sexual minorities and their advocates, their fight for legal progress continues to be passionate.

When Hong Suk-chon, the country’s first openly gay celebrity, came out as gay in 2000, it practically doubled as the moment when Korea’s sexual minorities introduced themselves to the rest of society.

Another milestone moment came last month when movie director Kim Jho Gwangsoo and his longtime male partner Dave Kim held a news conference to reveal they will symbolically tie the knot in a ceremony in September. They hope that the event sparks the debate for legalizing same-sex marriage in Korea.

Perhaps, this shows that sexual minorities are now ready to make a bolder statement than what Hong did 13 years ago. So much of their struggle had been about announcing their existence. It’s now more about being respected as citizens and exercising the same rights as heterosexual people.

With the discussions on anti-discrimination legislation hitting a snag, the focus of the gay rights movement has temporarily shifted to rewriting the Korean military law, which states gay sex as a punishable crime.

Under Article 92 of the Korean Military Penal Code, service members engaging in male-to-male sexual activity could face a maximum two-year prison term. Gay rights activists are calling for the provision to be scrapped, claiming it unfairly punishes consensual homosexual acts.

The DP’s position on the issue is rather confusing. One of its lawmakers, Jin Sun-mi, is in vocal support of the calls to remove the Sodomy law from the penal code. Her colleague Min Hong-cheol has submitted a bill to strengthen Article 92 so it could also punish sex between female soldiers.

“If Korea is a country where common sense and basic rights matter in anyway, the provision of Article 92 should be abolished,” Kim Jho said in a news conference Wednesday.

“They say there has to be different standards for the military, but I have yet to hear one good argument of how homosexual soldiers hurt morale.”

Eventually, the focal point will return to anti-legislation laws. Han Ga-ram, a lawyer and member of the group Korean Lawyers for Public Interest and Human Rights, says that the gay rights movement will have to be effective on a dual front: garnering broader support, but also actively working with lawmakers to ensure that they write better laws.

Even if the DP lawmakers had kept their anti-discrimination bills and managed to pass them through the National Assembly, the resulting law would have been in danger of being rendered irrelevant, he claims.

“The bills didn’t provide detailed descriptions or examples of exactly what type of interactions should be regarded as discrimination, what type of actions should be considered more severe than others, and what type of punishment the courts could consider. Under these bills, the courts can only advise the organization in question to address the problems and there aren’t even guidelines on how these problems should be addressed,” he said.

“Of course, the bills would have had symbolic meaning and at least allow people to file a civil law suit against the organizations if they believe they have been discriminated. Still, it would be better for bills submitted in the future to be more specific lest they be rendered irrelevant as the disability discrimination act, which isn’t working as prescribed.”