[Letter] Anti-Discrimination Act, Republic of Korea - The Issue of Underinclusion

November 16, 2007

To: Mr. Hong Gwan Pyo - federone@gmail.com
       Mr. Yoon Seung Ki - ysk237@president.go.kr
       Ms. Lee Sook Jin - leesjdream@cwd.go.kr
       Ministry of Justice - webmaster@moj.go.kr

To the Minister of Justice and other respected officials of the government of the Republic of Korea,

As a law professor, I have followed the work by the NHRC of Korea on an anti-discrimination law, which I believe would be the first general national anti-discrimination law in Asia.

We are told that the prohibited grounds of discrimination are now being limited, and that "sexual orientation" will be omitted.  It may be that the government believes that this "underinclusion" or "omission" of certain grounds of discrimination does not offend any general non-discrimination or equality principles.  There is a leading judicial decision to the contrary.

In 1998 the Supreme Court of Canada issued its decision in the case of Vriend v Alberta, the full text of which can be found at www. lexum.umontreal.ca/csc-scc/.  The general anti-discrimination law in the province of Alberta, the Individual Rights Protection Act, had a list of prohibited grounds of discrimination which did not include "sexual orientation."

The Supreme Court noted "the social reality of discrimination against gays and lesbians" in Canada.  Given the general goal of the legislation, the omission of such an obvious ground of discrimination was held to be discriminatory.  It discriminated between homosexuals and other disadvantaged groups.  It also had disproportional impact against homosexuals, compared to heterosexuals, a grouping that did not face comparable patterns of discrimination.

The Supreme Court of Canada ruled that the best way to resolve the discrimination was to order that the words "sexual orientation" be read into the legislation by judicial order.

The official summary of the decision, found immediately before the actual judgment on the website given above, states:

"...the exclusion from the IRPA's protection sends a message to all Albertans that it is permissible and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation. ... In excluding sexual orientation from the IRPA's protection, the government has, in effect stated that 'all persons are equal in dignity and rights' except gay men and lesbians."

In international jurisprudence I believe that this decision is the only one to discuss the issue of "underinclusion" or "omission."  It has been consistently followed in Canada since 1998.  I urge you to follow it in your important legislation.

Professor Douglas Sanders
Professor Emeritus, Faculty of Law, University of British Columbia, Vancouver, Canada
LL.M. Professor, Faculty of Law, Chulalongkorn University, Bangkok, Thailand
Occasional Lecturer, Program in Human Rights Studies and Social Development, Mahidol University, Bangkok, Thailand