HOMOSEXUALITY IN Korea is recognized by law as an individual's sexual orientation, but same-sex marriage is not legislated. Homosexuality faces an extremely polarized social climate. According to research in 2021, whereas more than 80% of women in their twenties and thirties responded that they may accept the coming out of co-workers and close friends, more than half the Conservative and Protestant subjects responded that the coming out of their children, lovers, and spouses is unacceptable[1]. The enactment of an “anti-discrimination law”—the main agenda of the LGBTQ rights movement in Korea— has been postponed, facing harsh objections because of the pressure from conservative and religious groups. Recently, the Seoul High Court ruled to affirm the de facto marriage[2] relationship of a same-sex couple. Said couple sued the National Health Insurance for overturning its initial decision to grant the partner as a dependent. 

The background of the litigation

   On Feb. 10, 2020, Kim Young-min filed a complaint against the National Health Insurance to qualify So Seong-wook, his partner, as a dependent. A dependent can receive insurance benefits such as hospital expenses by the spouse’s health insurance without paying insurance premiums. Under the current Korean legislation, marriage refers to a permanent living environment formed by a legally acknowledged union between a man and a woman. Accordingly, Kim and So do not qualify as a married couple. However, they lived together since 2017 and notified the relatives of both sides through a ceremony they referred to as a “small wedding[3].” That being the case, the personnel in charge responded positively and informed the registration procedure.

   Since Feb. 26, 2020, when So acquired the qualifications as a dependent, he received insurance benefits without paying local subscriber premiums. However, on Oct. 23, 2020, when the press reported this news, the personnel in charge called Kim and So to reverse the previous measure, explaining that it was an "error" to register So as a dependent. After the phone call, So lost the dependency status as of March 5, 2020.

Kim and So filed a lawsuit against the National Health Insurance the same month. In January 2022, the court released the ruling against the plaintiff, saying that it is against the current law to evaluate the relationship between the same-sex couple as a de facto marriage. 

   Yet, in the second trial in February 2023, the court revoked the first trial’s ruling. The court ruled that aside from the fact that they are a same-sex couple, the plaintiffs are in a communal relationship identical to de facto marriage. The court clarified that the spouse de facto marriage and the same-sex partner can be identified as essentially the same group except for the sexual difference[4]. On Nov. 23, 2020, following the court’s decision, the plaintiff re-gained his dependency status.

The judge’s reasoning

   According to the verdict, the key principle under which the judge overturned its decision was the recognition of arbitrary discrimination violating the principle of equality[5]. The clashing point of the litigation was whether the partner in the same-sex relationship could be qualified as the de facto marriage partner that has the right to receive health insurance as a dependent. The court stated that the National Health Insurance's dependent system should empower the right to receive health insurance by qualifying a person who makes a living by the insured without income or property as a dependent. In judging whether the same-sex couple corresponds to a de facto marriage relationship, the court evaluated whether their relationship was a close emotional and economic community which, one, has the substance of marriage, two, depends financially on the workplace subscriber, and three, has income and property below the standard of the Ministry of Health and Welfare[3].

   The consistent failure of the defendant to prove their own case was another reason why the court recognized the same-sex couple’s relationship to qualify as a de facto marriage. The court repeatedly demanded that the defendant provide a logical reason to differentiate the two partner groups. However, since the defendant did nothing but repeat the statement that the two groups are not identical, the court decided that the defendant’s disposition is based on an “arbitrary discrimination[6]” violating the equality principle.

   The court further clarified in the verdict that sexual orientation cannot be the reason for discrimination. The verdict states that it is undeniable that explicit and implicit discrimination against “minorities in terms of sexual orientation” have existed in countries around the world, including Korea. However, one cannot choose one's sexual orientation. Plus, there is a growing awareness that one should not be discriminated for it, just as much as other features— personality, emotion, intelligence, ability, and behavior[3].

   As a result, the court decided that the defendant has arbitrarily confiscated the rights of the plaintiff—the same-sex couple—making his decision an illegal act, as it violates the principle of equality.

Implications for LGBTQ rights in Korea

Notwithstanding justice made by the recent court ruling, the status quo of South Korea in terms of LGBTQ rights still seems to be lagging if one considers the path of social activism until now. South Korea ranked 72nd out of 198 countries in the Equality Index[7]. According to the pole[8] in South Korea, in 2017-2020, 79.6% of the respondents mentioned homosexuals as the answer for the question, “On this list are various groups of people, could you please mention any you would not like to have as neighbors?” To get a better clue of the lives of the sexual minorities and how they interpret the recent court ruling, The Yonsei Annals interviewed an LGBTQ-identifying Korean.

Anonymous[9] believed that social perception was the biggest barrier in living as a same-sex couple in Korea. Since education and social systems are all tailored to heterosexuals, sexual minorities should always hide themselves and live with a sense of incompatibility, they added. Although believing that the court decision will not instantly affect everyone’s lives, they viewed the ruling to be the start of same-sex couples enjoying their natural rights as insurance is an integral right for married couples.

As an LGBTQ individual living in Korea, they felt that the most urgent task is to accept all kinds of living communities, not just same-sex couples. This also paralleled with the court verdict that identity as a minority is not exclusive to certain individuals[3]. They further elaborated that the current society, which recognizes only blood-related relationships or heterosexual marriages as family members, is increasingly burdening young individuals in either living a prosperous life or raising children. 

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The court clarified that a society following the majority rule should be aware of and strive to protect minority rights, which is also the greatest responsibility of the court—the last resort to claim human rights[3]. Yet, life as a sexual minority in Korea, to quote Anonymous’ words, is still like “trying to stay silent, as if we are not there.” 

[1] Hankook Research

[2] De Facto Marriage: A phrase used to describe the connection between an unmarried couple that satisfies the legal criteria for marriage, but without being formally wed

[3] CaseNote

[4] BBC News Korea

[5] The Principle of Equality: The principle of equality both written in the administrative law and constitution is the principle that all administrative objects should be treated equally unless there is a reasonable basis for administrative action; Equality in this principle refers not to absolute equality, but equity or relative equality.

[6] Arbitrary: Based on random choice or personal whim, rather than any reason or system

[7] Equaldex

[8] World Values Survey

[9] The interviewee will be named “Anonymous” for the sake of their privacy.