On November 24, 2022, the South Korean Supreme Court ruled that a divorced and not-remarried transgender person with two minor children could change her gender from male to female in the government’s Family Relations Register. The court overturned the ruling of the Seoul Family Court, which had rejected the person’s application for a change of gender status in the Family Relations Register on the basis of a precedent of the Supreme Court that prohibited parents of minor children to change gender. (2020Seu No. 616, Sup. Ct., Nov. 24, 2022, in Korean (Korean Summary).)
The Precedent for Permission to Change Genders
In 2006, the Supreme Court held that the newly evaluated gender — that is, the person’s new gender identity and expression, not the gender assigned at birth — should be reflected in the Family Relations Register if it can be recognized as a converted gender according to social norms in light of the evaluation criteria for a person’s sex. (2004Seu No. 42, Decision Summary paras. 2 & 3, Sup. Ct., June 22, 2006, in Korean.) However, a later Supreme Court judgment determined that when a transgender person is married or has minor children, a gender change is not allowed. (2009Seu No. 117, Sup. Ct., Sept. 2, 2011, in Korean.)
Especially for transgender persons with minor children, the court judged that a change of gender could not be allowed because it is against the welfare of the children, arguing that a change in the parent’s gender may cause confusion and shock to minor children and that when others learn of the gender change, the minor children may be subject to social discrimination and prejudice.
The Court’s Decision
The South Korean Constitution states that all citizens have human dignity and value, and have the right to pursue happiness. (Const. art. 10.) Further, it states that everyone is equal before the law and has the right not to be discriminated against on the basis of sex. (Art. 11, para. 1.) According to these provisions, the court stated, the basic rights of human beings should be guaranteed to the maximum extent when judging whether or not to allow a change of gender.
The court held that it is unreasonable that the current Family Relations Register forces transgender persons to live in accordance with the gender assigned to them at birth, and that to guarantee their rights, transgender persons must have the right to legally confirm their gender according to their “true gender identity.”
Moreover, it cannot be indiscriminately concluded that permitting the gender change of a transgender parent with minor children is against the welfare of the children or leaves minor children defenselessly exposed to social prejudice and discrimination. Rather, the court judged it is the state’s duty to prevent the harm that transgender persons and their minor children may suffer due to social prejudice.
The ruling in this case was limited to permission for a change of gender by transgender persons who have minor children but are not currently married. Married transgender persons with minor children, however, are still not permitted to change their gender because the ruling did not overrule the 2006 precedent for that case.
Prepared by Younkyung Eum, Law Library intern, under the supervision of Sayuri Umeda, Senior Foreign Law Specialist
Law Library of Congress, January 26, 2023
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