State Complicity in the Violation of the Human Rights of Sexual Minorities in South Korea

Hey guys, so a while back I posted on my FB about one of the papers I had to write for my Human Rights class last semester. The task were we given was to choose one of the ‘6 most serious Human Rights violations’ and show how a selected country or state was violating this particular right.

As usual I wanted to be different, as I knew that there would be many students that would choose the more well known state ‘violators’ ie China, Myanmar etc and commonly known breaches of human rights that are often well publicized in the media.

I tend to find that people think that the more ‘enlightened societies’ are less likely to violate the Human Rights of their citizens. However, this is usually furthest from the truth. Some of the biggest violators of human rights are those countries that are closest to home. ie Australia and its indigenous people. last week I blogged about Human Rights abuses in Samoa and the list goes on. However I chose to look at my adopted country South Korea and also selected a group in South Korea that often does not get enough exposure. The LGBT community or sexual minorities.

In Korea a lot of work has been done to document Human Rights violations in terms of freedom of choice and expression for the majority of the Korean population. It is easy to find work that has been done around the Human Rights violations in South Korea during the struggle for democracy. But with the onset of democratization and modernization processes respectively, room is starting to develop that is allowing for the discussion around the rights of minority groups that were often previously ignored.

From my research into the area of sexual minorities in Korea I have been astounded at the deliberate violation of human rights that are allowed to go on by the South Korean state. Instead of rehashing some of the things I found, I decided just to publish my paper here on this blog so people who are interested can have a look.

It’s not a lengthy paper as we were only allowed 3,000 words, although I did go over by quite a bit lol but I hope this can be of use to others and contribute to the discussion about Human Rights in Korea. Apologies all my footnotes disappeared as I transferred this from its Word file to the blog, although my bibliography survives at the end of the paper.

State Complicity in the Violation of Human Rights of Sexual Minorities in South Korea – by Patrick Thomsen, Graduate School of International Studies, Seoul National University, December 2013

“The rights of every man are diminished when the rights of one man are threatened.” If human rights are to be universal, we must accept them first as intrinsic to who we are as people, as part of humanity. Therefore every article in the declaration of human rights must be viewed as contingent and dependant on each other. It is in this spirit that I wish to examine the violations of human rights that go on everyday in the Republic of Korea. Although the task placed before us was to select one of the six serious violations of human rights and demonstrate how they are violated within a given setting, I have chosen to examine five of these pre-selected rights and will attempt to show how one piece of failed legislation allows for the violation of these rights for one group in particular: sexual minorities.

Amnesty international defines discrimination as ‘an assault on the very notion of human rights. Discrimination is the systematic denial of certain peoples’ or groups’ full human rights because of who they are or what they believe. It is all too easy to deny a person’s human rights if you consider them as “less than human”. The failure of the anti-discrimination bill, which stalled in the National Assembly earlier this year, was a major setback in the preservation of human rights in Korea. The fact that a religious wing hijacked it represents a major challenge for institutional support to enable the protection of human rights for the minorities it was designed to protect. Additionally. In this paper I intend to show how its death in the halls of government denotes both an institutional and a complicit failure of lawmakers to protect the rights of sexual minorities in Korea. I will use this failed legislation to illustrate how articles three “Everyone has the right to life, liberty and security of person”, article four “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”, article 5 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, Article 18 “Everyone has the Right to Freedom of thought and Religion” and Article 19 “Right to Freedom of Opinion and Expression” are routinely violated. I argue the failure of this legislation is a serious breach of human rights, and through its complicity the state itself has become the violator.

The Failure of the Anti-Discrimination Law


In February of 2013 two Democratic United Party members, Kim Han Gil and Choi Won Shik, introduced draft legislation into the National Assembly of Korea. This bill proposed to ban employers from discriminating against people based on religion, political ideology, educational background and sexual orientation. This type of legislation is very common in nearly every modern democratic society, however in Korea this proposed piece of legislation was withdrawn again in April 2013. Religious conservatives were particularly vocal against this legislation and went as far as to accuse both Kim and Choi of being closet homosexuals and North Korean sympathizers . Some critics of the legislation say that the reason that it failed was because the bill overreached in its aims. The proposed bill sought to ban discrimination in ‘employment and other social treatments’ of people in about twenty categories, including region of birth, skin colour, schooling, age, thoughts, medical history, religion, sexual orientation, appearance and marriage. The proposed law would have allowed alleged victims to seek compensation for damages that could be claimed up to 30 million won . This was a very important part of the legislation and I argue that the wide coverage of the bill if it had passed would have represented a commitment to the human rights of all in South Korea. Instead, its alarmingly easy defeat represented a complicity in the National Assembly to allow Human Rights violations to continue in South Korea. Although the state may not have ordered the violations that I will outline in this paper, the fact that the state refuses to recognise its role in the perpetuation of violations means that it has taken on the role of violator. By not taking a strong stand against discrimination; the lawmakers of South Korea have given the ammunition to individual agents to pull the trigger on the violation of human rights in this country.

Article 3 – Everyone has the right to life, liberty and security of person

The simplest of human rights, the ability to feel safe, protected and freedom is routinely denied to minority groups in South Korea. For sexual minorities in particular the issue of security of person is most disconcerting. The definition of ‘security of person’ it can be said is related to ‘the right to life’. In its purest form ‘the right to life’ enshrined in article 3 according to the United Nation itself is described as: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” In Korea there have been instances of homosexuals being assaulted in the street leaving ‘gay bars’ and hate crimes tend to go under reported.

But in a wider context the security of person needs to be applied to the local setting in a social sense. In Korea I argue that the right to security of person needs to pertain to the ability of an individual to provide the basics for them to live a dignified life. This means it should be extended to the liberty of ones ability to provide a secure source of income and autonomous lifestyle. However in Korea discrimination in the workplace means that sexual minorities are prevented from coming out, as it would compromise their employment security. This is directly related to the lack of institutional protection that is offered by the government.

In a qualitative study in 2010, the Solidarity for LGBT Human Rights of Korea organization outlined some of the challenges faced by sexual minorities in the workplace in Korea. All respondents in the study shared their worries that if they made their sexual orientations known at work they would be badly disadvantaged. Ms. L, a lesbian in her early 30s, said, “I just don’t know whether I would receive threats or be asked to leave the company, so I’ve never even thought about coming out.” The unmarried are discriminated against in promotions. The company may not officially ask about spouses, but without one it isn’t easy to increase one’s pay check. One gay man said, “I’ve completely given up on being promoted, so until I retire I’ll have to satisfy myself with being a department head.” Lega (a pseudonym), an activist with the Democratic Party’s committee on sexual minorities, said, “at work we have been fired for our sexual identities and always subject to the fear of being outed, but we receive no protection from the law.”

It is clear that this basic human entitlement of the right to life, liberty and security of person in a local setting is being violated in Korean society. And unfortunately the failure of the anti-discrimination law only implicated Korean lawmakers in the violation of this right. The government of South Korea is ultimately responsible here for allowing such discrimination to continue to permeate the workplace.

Article 4 – No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Again the term servitude and slavery must be applied to the local setting. And unfortunately for us today, slavery has taken a modern form too. Slavery now takes the form of people trafficking and servitude is represented by slave labour and discriminatory labour practices. The concept of people trafficking is morbid to say the least, as it involves the trade of people often for use in the sex industry of another country. So how does this pertain to Korea? Conditions that have been created which discriminate against sexual minorities have a two fold effect. The first is that it forces those who can not find legitimate work into taking lower end jobs, the second is that it makes them more likely to be victims of sex trafficking. At present the statistics are rather sketchy, but a growing amount of evidence is showing that sexual minorities aside from women are more at risk of sex trafficking or being traded for their bodies.

In 2009 the police in Seoul arrested a group of sex traffickers who recruited Korean men and transgender and illegally transported them to Japan to work in the sex industry there. This situation is usually symptomatic of a much wider problem. The fact that these traffickers were caught often means that there are more that have not been identified. In 2007 Grand National Party lawmaker Park Jae-wan claimed that there were estimated 40,000-60,000 Koreans illegally residing in Japan. Of these, 30,000 are believed to be working in the sex trade. An increasing number of Japanese recruitment websites for sex work were searching for Korean men. This is a problem that has been created by a system that allows persecution of sexual minorities. If sexual minorities were not forced into looking to alternative means for their own self determination by a society that shunned them, we would not see a situation where they are forced to turn to such work, This is not a choice, but a condition given by the system.

Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Moreover the lack of protection afforded to sexual minorities perpetuates degrading treatment and cruel punishments throughout Korean society. Homosexuals have been officially labelled in state papers as ‘abnormal’ in the past. The most recent example was when the Korean Ministry of Education earlier this year decided to remove all references to homosexuality being ‘normal’ behaviour in its textbooks. Instead it included labelling homosexuality a ‘mental disorder, equating it with aids, and claiming that homosexuality is not medically normal. This shockingly inaccurate stance on homosexuality further perpetuates discrimination and behaviour among Korean citizens and organizations which will continue to marginalize this already much maligned group.

Furthermore, South Korean soldiers in the military have been subjected to extremely degrading treatment on the basis of their sexuality. There have been many documented instances of bullying and abuse that has gone on within the military. According to a report by the National Human Rights Commission of Korea, an unnamed soldier suffered from gossip and rumours after he confessed his sexual orientation in the army training centre; his sexual orientation was revealed against his will. When he told the army surgeon that he wanted to be discharged, he was told to submit a video containing his sexual relationship. Refusing the offer, he was bullied constantly.

The lack of institutional protection and in the case of the textbooks teaching that homosexuality is both abnormal and a mental illness flies in the face of scientific evidence. It is both inaccurate and an actual direct violation of the human rights of individuals. In fact the situation for sexual minorities in schools is that many students feel they are in an unsafe environment. A study has found that half of sexual-minority students in high schools feel that they are discriminated against at school because of their sexual identities. Regarding the types of harassment the sexual-minority teenagers experience at school, 61.5%, said “degrading language and bias from students for being a sexual minority”, while another 39.8%, said “degrading language and bias from teachers for being a sexual minority”. 29.4%, of the students said they had been “outed” at school against their wishes. 5.4%, of the students reported being harassed or groped against their will. This is concerning as there is now an institutional support for bullying in the textbooks that are being taught in Korean schools. The state or a state institution such as the Ministry of Education should not endorse this sort of behaviour. The role of information and the way it is distributed and its ability in shaping behaviours is well documented. The failure of the Korean lawmakers to instigate the anti-discrimination law is once again a representation of state complicity. The impact of its failure here should not be underestimated.

Another institutional failure took place in 2011. This is when the Education Committee of the Seoul Metropolitan Council announced that it would be withdrawing a statement in the Seoul Students Rights Ordinance that included sexual orientation as a right to non-discrimination. The original draft contained four clauses that specifically protected sexual minority youths. However after the draft was released the religious conservatives went to work and lobbied hard to have the clauses removed. Once again this basic right was denied to sexual minorities based on the power of the religious right. This was a massive failure on two fronts. The first is that it failed to protect the minority youth. The second was that it continued to perpetuate stereotypes of sexual minorities as second-class citizens, engendering a lower status for some groups of youths in Korea. The connection between the messages sent out in official legislation and policies, with the decreasing perceived security of sexual minority youth in Korea cannot be missed here.

If an anti-discrimination law were put into place there would be very little chance for such practices to be endorsed, and there would be a real avenue of retribution. Many South Koreans are now seeking asylum abroad due to the basis of their sexuality and discrimination that takes place here and in the military. Last April, “Kim In-su,” a 34-year-old gay man who also refused to enlist (in the military), had asylum status granted in Australia. Recently, some transgender individuals have also had refugee status granted. Fleeing persecution in one’s own country is the ultimate failure of the state’s responsibility to create a free and open society. The increasing trend of South Korean nationals seeking asylum abroad represents a red flag in the protection of the human rights of sexual minorities in Korea.

Article 18: Everyone has the Right to Freedom of thought and Religion

Article 18 is explained by the United Nations as: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance” . Most people read this article as an exclusive right to preserve one’s religious convictions. However, this right also indentures people of religious conviction to not discriminate against those who do not share their religious beliefs. In the past religious groups have been discriminated against, however today in South Korea the religious groups have been busy discriminating against the rights of sexual minorities. The major opposition to the anti-discrimination bill in Korea came from the religious right. When the 2013 bill was introduced on the basis of recommendations from the Human Rights Council in Korea, the conservative right and Christian groups threatened that the law could be used to support gay marriage. The use of scaremongering tactics to block the passages of the bill has been further allowed by the refusal of lawmakers in challenging the conservative right. The South Korean Presbyterian Church was particularly vocal in its opposition of the law, coming out to make a strong statement about how it would impede their sermons and create unnecessary tension in society.

The issue for sexual minorities is that another group in society is deliberately infringing their freedom of thought. This is a rational explanation. By contrast, it can not be argued by the religious right that the existence of sexual minorities impedes on their ability to practice their religion. This is an irrational argument. The existence of diversity does not serve to limit their freedoms. In this case the state has a duty and obligation to protect the freedoms of sexual minorities to simply exist as equal citizens. There are so many barriers at the moment for sexual minorities to even be allowed to participate as normal citizens. Yet the government is allowing a religious group to restrict the rights of other members of society to keep their own counsel. This is a gross violation of human rights. All made possible by the lack of institutional protection offered to sexual minorities.

Article 19: The Right to Freedom of Opinion and Expression

Enumerated in the Universal Declaration of Human Rights as “the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” the right to freedom of expression is often treated as a given condition. It could be argued that the fact that sexual minorities have the ability to pursue their own policy agenda means that there is no limitation to freedom of speech. However in Korea this has been recently tested in relation to the National Security Law (NSL). According to Amnesty International South Korea has seen a dramatic increase in the abuse of national security laws in a politically motivated attempt to silence debate. Apparently there has been a near two fold increase in the number of prosecutions brought before the judiciary in relation to this law since 2008. This development is an attempt to narrow the space for public debate, which seriously undermines freedom of expression and freedom of association in the country.

For sexual minorities, although the NSL has not been used as of yet to silence debate, the spirit in which the government invokes this legislation is a clear informant in its behaviour in other legislative frameworks used to muzzle the promotion of the rights of sexual minorities in Korea. A very high profile case has been that of the Mapo Rainbow Resident’s Solidatiry (MRRS) and their application to the Mapo-gu district office to hang a banner to advocate sexual minority’s rights in the community last year. The organization that was founded in 2011 as a voluntary group that aims to help change the public perception toward alternative lifestyles. The banner that the MRRS proposed on hanging would have displayed in Korean the phrases “One in ten passer bys is a sexual minority” and “Here, we are residents of Mapo-gu”. However, the Mapo-gu office rejected the permit on the condition of changing the phrases as they purported that it was ‘indecent and detrimental to youth’ .

The banner was rejected on the basis of the invocation of the ‘Outdoor Advertising Law’, which indicates the articles in the signage constituted ‘obscene materials’ . Nothing of what the MRRS proposed to display was inaccurate, neither was it obscene by any definition of the term. This official use of legislation to limit freedom of speech represents a major infringement of the human rights of the members of the MRRS group. They have had their right to express their identity denied them, it also prevents the type of support that could be given to sexual minorities of whom are still not comfortable to identify themselves in public reaching those who need it the most. This is a significant disservice to not only sexual minorities but also to freedom of speech in Korea. However with the absence of an anti-discrimination law, there is not much that these minorities can turn to by way of protection. Therefore the failure of this legislation has much wider consequences.

Conclusion

Human rights is a concept that is constantly evolving, and the protection of sexual minorities is currently a vogue topic of discussion in political circles around the world. The realization of rights of minorities in general is something that large numbers of legislative bodies have recently moved to enshrine and protect. However, in the Republic of Korea the failure of the anti-discrimination bill to pass into legislation represents the biggest challenge to the realization of Human Rights in Korea. I do not classify it as simply a challenge, I classify it as a complicit violation of human rights by the South Korean legislative National Assembly. The core functions of governments can be boiled down to one simple goal. It is meant to function for the betterment of the lives of its citizens. For all its citizens, and in order to do this it needs to be able to provide protections for the most marginalized and maligned in society.

All of the rights that are continually violated are interrelated. I argue that we cannot focus on one without looking at the effect on the others. In Korea the fact that one piece of legislation does not exist has a profound effect on how these five rights are violated. The violation of freedom of speech for sexual minorities means that they are not able to fulfil their own individual autonomy. They are then forced to hide their sexuality or face the consequences of a social death, which would include dismissal from their job and therefore impact on their ability to live. The fact that discrimination is allowed to exist means that sexual minorities are more at risk of suffering from sex trafficking and underemployment than other portions of the population. The power of the religious conservatives to dictate policy directly impacts on freedom of thought and freedom of religion for sexual minorities in Korea.

Additionally, a government’s function is to govern and not be governed by the court of public opinion. The fact that the National Assembly allows the powerful conservative lobby to block such an important piece of legislation no longer just complicity, but an active decision to allow discrimination to run rife throughout society. Human rights violations in the Republic of Korea stem from a lack of institutional support for minority groups and represent the greed and hunger for power of the political elite. It is on this basis that the central argument of this paper is based. Without state protection, and a deliberate rejection of the rights of a minority group, the Korean government have become the primary violator of the human rights of sexual minorities in Korea.

Bibliography

Amnesty International “The Politically Motivated Onslaught on Free Speech” Press Release November 29 2012

Bong, Yongshik, “The Gay Rights Movement in Democratizing Korea” Journal of Korean Studies Vol 32 pp 86-103, 2008

Borowiec, Steven “South Korea Military Mulls Future” The Diplomat, 23 December 2011

Ghosh, Palash “South Korea: A Thriving Sex Industry In A Powerful, Wealthy Super-State” International Business Times, April 29, 2013

Grace Poor “Korea: LGBT Students in Danger of Being Left Out Of Non-Discrimination Protections” The New Civil Rights Movement, March 2011

Haken, Jeremy “Transnational Crime In The Developing World”, Global Financial Integrity. 25 June 2011.
Immigration and Refugee Board of Canada “Korea Republic of: Treatment of homosexuals, including legislation, availability of state protection and support services” 30 November 2009

Jang Joo-Young and Kim Min Ji “Gay Sex Worker Traffickers Arrested” Joongang Daily 10 March 2009

Jeong, Eunju “Banner Advocating Sexual Minority’s Prohibited” Human Rights Monitor South Korea 7 March 2013

Johnte Hee Soo, “Can Korea ever Accept Homosexuals” The Korea Herald, 18 June 2012

Kim, Sodam “Seemingly Endless Discrimination Against Gay Soldiers in Korea” Human Rights Monitor South Korea December 26 2011

Kim Tae Hyung “한국 남성, 일본 호스드바 취업급” Newsis 2007

Kim, Young Jin “Sex Trafficking Victims Fight Social Stigma” The Korea Times October 28, 2013
Lee, JH “Human Trafficking in East Asia: Current Trends, Data Collection and Knowledge Gaps” Blackwell Publishing, International Migration Vol. 43 165-201

Lee John “Why South Korea’s Anti-Discrimination Bill had to be Killed” June 3 2013

Lee Yoo Eun “South Korean Anti-Discrimination Law Faces Conservative Push Back” Global Voices 13 April 2013

Park, Hyun Jung “Special Report: Fleeing Discrimination at home, South Koreans Seek Asylum Abroad” Hankyoreh 7 November 2013

Park, Sujin “학생들 절반이상 “차별 경험” 왕따 방지 프로그램도 필요” Hankyoreh News 6 December 2012

Payne, David “Textbook dampens gay rights in Korea” The Korea Observer October 22 2013

The Advocate Editors “Korea Upholds Antigay Military Law” The Advocate online 31 March 2011

Yang, Junghoon “Homosexuals and the Contemporary Gay Rights Movement in Korea: Movement Participation and Collective Identity” School of Global Studies University of Gothenberg May 23 2013

http://www.claiminghumanrights.org

http://www.amnesty.org

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