To: Douglas Sanders

Thank you for your concerns about the draft of the “Anti-Discrimination Act” of the Republic of Korea.

In regard to the reasons for prohibiting discrimination (e. g., sex, race, colour, religion, etc.), Article 3, Paragraph 1 of the draft is not a provision that excludes discrimination on grounds that are not prescribed in the scope of protection of the draft but a provision that illustrates such reasons by providing examples.

Thus, in spite of your concern, even if other reasons are not elucidated in Article 3, Paragraph 1, it does not mean that discrimination based on those reasons is allowed or encouraged.

Article 3, Paragraph 1 of the draft

“The term ‘discrimination’ means…separation, differentiation, restriction, exclusion, and other unfavourable treatment without reasonable cause based on sex, age, race, colour, national origin, regional origin, disability, religion, political or other opinion, marriage, pregnancy, social status, and other reasons.”

Hong Kwan Pyo

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

November 17, 2007

To: Kwan-Pyo Hong (federone@gmail.com)

My thanks for your clarification of the specific wording proposed for the Anti-Discrimination Act.

We are familiar with anti-discrimination provisions which have “closed lists” and “open lists.”  The wording which you set out is, of course, an open list, in which the specified prohibited grounds are examples and “other reasons” are also prohibited, though not named.

The non-discrimination provision in the International Covenant on Civil and Political Rights (ICCPR), Article 26, approved by the UN General Assembly in 1966, is also “open.”  And the provision in the Canadian Constitution, enacted in 1982, is also “open.”  Neither list “sexual orientation” in their lists of examples.

The UN Human Rights Committee in Toonen v Australia, interpreting the International Covenant on Civil and Political Rights, was invited by Australia to answer the question whether “sexual orientation” came within “other status.”  Instead the Committee ruled that discrimination on the basis of “sexual orientation” was a form of discrimination on the basis of sex, and for that reason, was included in the list of examples.

The decisions of the Supreme Court of Canada took the other approach, and ruled that discrimination on the basis of “sexual orientation” was an analogous ground of discrimination to those listed as examples, and therefore was included in the open ended wording of the section.  This was the unanimous decision of the court in the decision of Egan v Canada and followed in all subsequent decisions.

The European Court of Human Rights (ECHR) has taken a third approach, based on rights of personal privacy, extended to non-discrimination in employment.

You are quite right to suggest that the proposed wording for the anti-discrimination act in Korea could protect homosexuals from discrimination (which could occur either in line with the Toonen reasoning or the Egan reasoning).

But there are still two problems with this defence of the present wording of the draft legislation.

The first problem is that it depends upon the interpretation of the section by administrative and judicial bodies.  Those bodies, we must assume, will know that “sexual orientation” had been included as an express example, but then removed.  Will administrative and judicial bodies take a progressive or conservative approach to interpretation?  We really do not know.  Certainty has been replaced by ambiguity.

The second problem is that gays, lesbians, bisexuals and transgendered individuals have suffered from invisibility.  They have been taught to live “in the closet”, to use the standard western terminology.  It continues to be very difficult for any prominent figures in the Republic of Korea to be open about their sexual orientation.  In contrast other members of the “examples” in the draft wording are often very visible - women, the disabled, racial minorities, the aged, the pregnant.

It is clear that tolerance of sexual diversity requires that society acknowledge the existence of sexual variance.  This makes it very important that the category be named, not hidden again or left to interpretation.

For this reason it was very important that “sexual orientation” was included in the legislative mandate of the National Human Rights Commission (and I have praised Korea for that initiative).

But the present legislation is a slap in the face.  “Sexual orientation” was named and included - and then withdrawn - sent back into “the closet” to be rescued, if at all, by interpretation.

In my previous message to you I described the decision of the Supreme Court of Canada in Vriend v Alberta.  The case dealt with a provincial anti-discrimination statute that had a closed list that did not include “sexual orientation.”

The provincial law was judged on the basis of the national constitution’s equality provision, which also did not list “sexual orientation”.  But the national provision had an “open list” and the Supreme Court of Canada had interpreted it as including “sexual orientation” as a ground of discrimination analogous to those listed in the section.

When the Canadian national constitutional provision was enacted in 1982, the issues of LGBT rights had not yet made headway in national thinking.  The omission was not a matter of controversy or even discussion at the time.

What makes the Korean situation basically different, is that sexual orientation issues had already been recognized in the legislation establishing the National Human Rights Commission.  And even more significant, the original draft of the anti-discrimination law included sexual orientation as an express “example” of a prohibited ground of discrimination.

In this way the omission or underinclusion is very similar to the situation that the Supreme Court of Canada faced when it decided the Vriend case.  The issue of including “sexual orientation” in the Alberta anti-discrimination law had been discussed and rejected by the provincial government.  There was a conflict between a provincial government rejection and a national constitutional acceptance.  That conflict was resolved in favour of the national constitutional rulings.

But in Korea we will have a negative national government action - the withdrawal of the “sexual orientation” example from the legislation.  That sends a negative social message to Korean society.  It also may influence the thinking of the courts.  Gays and lesbians have been “invisibilized” to use a rather odd, current English language expression.

So the actions of the Korean government can be described as rejection (even if technically only of express inclusion in the list of examples) and avoidance (avoidance of referring to the existence of sexual diversity in Korean society).  This is a “slap in the face”, even if, as you suggest, subsequent interpretation may hold that gays and lesbians gain protection.

Professor Douglas Sanders

Professor Emeritus

Faculty of Law

University of British Columbia