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An examination of the discrimination on the ground of sexual orientation

  • Journal of Human Rights Studies
  • Abbr : JHRS
  • 2021, 4(1), pp.47-100
  • DOI : 10.22976/JHRS.2021.4.1.47
  • Publisher : Korean Association of Human Rights Studies
  • Research Area : Social Science > Law > Law of Special Parts > Human Rights / International Human Rights Law
  • Received : March 4, 2021
  • Accepted : May 31, 2021
  • Published : June 30, 2021

Kim Taehwan 1

1인천지방법원

Candidate

ABSTRACT

Legislative attempts on Anti Discrimination Act in Korea have been thwarted by interest groups opposing “sexual orientation” be included as a ground of prohibited discrimination. However, the term “sexual orientation” has not been yet discussed thoroughly in Korea. This article first make a definition of the term by analyzing the concept as “a person’s consistent pattern of desiring to make a mental, physical relationship with a different, same or more than one gender”. This article will then introduce the Bostock v. Clayton County case which held that discrimination on the ground of sexual orientation is also a discrimination on the ground of sex. In Korea there are several cases where the government itself discriminates on the base of sexual orientation. This article will highlight such discrimination in education and martial area. Cases on discrimination relating to access to public facility will also be discussed. By overviewing the US Supreme Court’s Obergefell v. Hodges, case, this article will also analyze a Korean case that did not legalize same sex partnership. This article also argues that same sex marriage should be legalized on the grounds of right of freedom, rights to equality, and judicial activism. Also, this article discusses cases that dealt with discrimination occuring in private spheres, especially in employment, disciplinary action of religious school foundation, defamation. This article also suggests that discrimination itself should not be punished, but if hate crime is committed, its motive should be considered as an aggravating factor in sentencing. By analyzing Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission case, this article discusses how to settle conflicts between religious rights and right to equality. If someone’s sales or service doesn't involve any element of creativity, s/he cannot argue that denying sale or service is protected by guarantees of religious freedom. However, if the sale or service is a product of creativity and the creativity is deeply related to his/her religion, one can argue that such denial of sale or service is within one’s protected religious freedom. Discrimination on the ground of sexual orientation cannot be settled by one legislation or one judgement. Civil society also plays a big role in eliminating discrimination. Government cannnot justify lack of minority protection soley on its lack of social consent. Legislative and judicial branch need to take a role in abolishing these discrimination.

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