Human Rights Watch Amicus Brief: Recognition of Same-sex Dependent Status Under National Health Insurance

Honorable Justices of the Constitutional Court of Korea

Human Rights Watch respectfully submits this amicus brief in connection with case 2023DU36800, in which the plaintiff So Sung-uk is seeking to be recognized as a dependent of his same-sex partner, Kim Yong-min, for the purposes of obtaining benefits through the National Health Insurance Service (NHIS). The NHIS currently extends dependent benefits to couples who are not legally married but are nevertheless deemed to be in a de facto marriage. Couples are able to obtain this recognition fairly easily – typically by providing simple documentation – but the NHIS has only recognized heterosexual couples as de facto married couples and allowed them to obtain dependent benefits. The recognition of heterosexual, but not same-sex, couples as de facto married couples and the differential treatment of same-sex couples who wish to access dependent benefits amounts to discrimination on the basis of sexual orientation in violation of international human rights guarantees.

Human Rights Watch Amicus Brief: Recognition of Same-sex Dependent Status Under National Health Insurance

As the Supreme Court considers whether the NHIS policies comply with the Constitution of the Republic of Korea and related laws, Human Rights Watch urges it to consider 1) international and regional precedents addressing state recognition of same-sex partnerships; 2) how South Korea’s guidelines jeopardize the human rights of lesbian, gay, bisexual, and transgender (LGBT) people; and 3) the growing recognition of same-sex partnerships as a matter of equality in other comparative contexts.

I. International and Regional Precedents Addressing State Recognition of Same-Sex Partnerships

A growing body of regional and international jurisprudence recognizes that states violate the rights of same-sex partners when they decline to recognize their relationships. Leaving same-sex couples without any recognition or protection for their relationships is widely understood to threaten rights to private and family life, as well as freedom from discrimination based on sex, sexual orientation, and gender identity. The lack of recognition or protection may also threaten parental rights, children’s rights, and rights to property, inheritance, and other social benefits. As some courts have noted, the lack of recognition can also exact dignitary harm on same-sex couples, whose relationships are treated as less significant or meaningful than those of heterosexual couples.

Some jurisdictions have concluded that same-sex couples must have the right to marry. The Inter-American Court of Human Rights (IACtHR), for example, expressly recognized a right to marry in an advisory opinion issued in 2017, after finding that failing to extend this option violated rights to privacy, family, equality, and non-discrimination.[1] The opinion prompted legal reform and efforts to recognize same-sex partnerships in many countries in the region, with Ecuador, Costa Rica, and Chile adopting marriage equality following the IACtHR’s ruling.[2]

Many other jurisdictions that have not recognized same-sex couples’ right to marry have nevertheless emphasized that states must provide a pathway to recognize and respect same-sex couples’ relationships, including for the purposes of certain state benefits. The European Court of Human Rights (ECtHR), for example, has thus far stopped short of requiring member states to recognize marriage equality, but has repeatedly reaffirmed that member states must offer some form of partnership recognition to same-sex couples as part of their human rights obligations under the European Convention on Human Rights (ECHR).[3] Specifically, the ECtHR has found that the right to respect for private and family life requires that states provide recognition and protection for same-sex couples. In Oliari and Others v. Italy, the Court recognized a “positive obligation to ensure that [same-sex couples] have available a specific legal framework providing for the recognition and protection of their same-sex unions.”[4] In designing such a framework, it emphasized that partnerships should “provide for the core needs relevant to a couple in a stable committed relationship,” and should be stable and predictable rather than piecemeal or ad hoc.[5] In some cases, the Court has found a violation of the right to private and family life and freedom from discrimination where same-sex couples are denied specific benefits that are available to heterosexual couples, including residence permits,[6] health insurance,[7] and succession to a tenancy.[8] The Parliamentary Assembly of the Council of Europe has similarly called on member states to recognize and protect same-sex unions, and specifically called for equal rights for same-sex couples with regards to migration, medical care, housing, property, criminal law, separation, and death and
inheritance.[9] As the Council of Europe’s Commissioner for Human Rights has observed: “Without the possibility to access legal recognition… same-sex couples are effectively denied rights that are acquired to different-sex partners with such status or spouses and are left to face serious problems in their everyday lives,” for example, being denied health insurance, employment benefits, taxation allowances, family leave, recognition as a parent, medical decision-making powers, inheritance, and access to shared property.[10] Noting the insufficiency of private arrangements and contracts in protecting these rights, the Commissioner has said that legal recognition must be “comprehensive, to cover all aspects of life in a committed, stable relationship.”[11]

Various organs of the United Nations have also expressed support for the recognition of same-sex partnerships and extension of social benefits under international human rights law. In recent years, both the Committee on Economic, Social, and Cultural Rights and the Committee on the Elimination of Discrimination Against Women have recommended to states that they provide meaningful legal protection for same-sex relationships to fully comply with their treaty obligations.[12] The Office of the High Commissioner for Human Rights has similarly concluded that UN member states “have a positive obligation to provide legal recognition to couples, regardless of sexual orientation, gender identity and sex characteristics, as well as to their children,” and to ensure that benefits traditionally offered to heterosexual married couples are extended without discrimination.[13]

This growing recognition that states must provide some legal pathway to recognize and respect the relationships of same-sex couples accords with other international standards recognizing the importance of providing state benefits to committed partners without discrimination based on sexual orientation or gender identity. The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, for example, calls on states to “take all necessary legislative, administrative and other measures to ensure that no family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members, including with regard to family-related social welfare and other public benefits, employment, and immigration.”[14] Alongside the reasoned judgments of regional and international human rights bodies, these standards recognize that withholding benefits from same-sex couples who are in committed relationships raises significant human rights concerns.

II. The Human Rights of LGBT People in South Korea

The lack of protection for same-sex partnerships and failure to extend social benefits to same-sex couples also exacerbates discrimination and other human rights concerns for LGBT people in South Korea. As Human Rights Watch and other civil society organizations have previously noted, South Korea has not yet enacted a non-discrimination law that protects LGBT people from invidious discrimination in employment, education, housing, healthcare, and other areas.[15] Instead, a handful of lawmakers have attempted to roll back the few protections that do exist, including the National Human Rights Commission’s mandate to investigate discrimination based on sexual orientation.[16] Young LGBT people also remain at risk of bullying, ostracization, and discrimination in schools because of their sexual orientation or gender identity.[17] One survey conducted in 2021 found that 40% of young LGBT South Koreans had considered suicide in the year prior to the survey, while a third of young LGBT South Koreans had experienced discrimination in that time frame.[18] A vocal segment of the South Korean public that opposes LGBT rights has promoted intolerance and stymied efforts to combat discrimination, and LGBT-inclusive festivals, parades, and other community events often have been subjected to protests and violence.[19]

The lack of partnership recognition and differential access to important social benefits exacerbate these human rights concerns. As a practical matter, the precarious situation of LGBT Koreans in the workplace, education, housing, and healthcare is made even more uncertain when same-sex partnerships are not recognized by the state and partners cannot rely on each other for stability and protection. Moreover, the state’s differential treatment of same-sex partnerships exacerbates dignitary harm and lends tacit approval to discriminatory treatment by conveying the message that same-sex partnerships are neither valued nor valid in the eyes of the state. In other contexts, research has found that legal recognition of same-sex couples is linked to broader social acceptance of LGBT people.[20]

III. Recognition of Same-Sex Partnerships in Other Contexts

The lack of protection for same-sex partnerships puts South Korea out of step with other countries that have embraced protections in recent years. Since the Netherlands first adopted marriage equality in 2001, more than 30 countries have extended marriage equality to same-sex partners, and at least 12 other countries have extended civil unions or registered partnerships.[21] In Asia and the Pacific Islands, Taiwan, Australia, and New Zealand have all extended marriage equality to same-sex partners,[22] and courts in Japan and Thailand have stopped short of extending full marriage equality but have expressed concern about the lack of protection for same-sex couples and called for lawmakers to extend partnership rights.[23] Other countries have considered legislative interventions; lawmakers in the Philippines have reintroduced a bill that would create civil unions for same-sex couples in the country.[24] The clear trend within the region is growing recognition of same-sex unions, with recognition that the equality and substantive rights of same-sex partners suffer when the state denies them any opportunity to enshrine their relationships in law.

IV. Conclusion

Same-sex partners rely on each other for the same reasons that heterosexual couples do, often joining their households and assets, raising children, and providing support and comfort to each other throughout their lifespan. The state’s decision not to extend the same material benefits to same-sex partners that it extends to heterosexual partners threatens the rights to equality and non-discrimination and jeopardizes substantive rights including the rights to privacy and to form a family. We respectfully urge the Supreme Court to recognize the equality of all committed partners, regardless of sex, sexual orientation, or gender identity, and to ensure that they are able to access state benefits on equal footing.

[1] Gender Identity, and Equality and Non-Discrimination of Same-Sex Couples: State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-Sex Couples, Advisory Opinion OC-24/17, Inter-Am. Ct. H.R. (ser. A) No. 24 (Nov. 24, 2017), https://www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdf.

[2] Cristian Gonzalez Cabrera, “The Americas Should Unify in a Marriage Equality Bloc,” Infobae, June 27, 2022, https://www.infobae.com/america/opinion/2022/06/27/los-paises-de-las-americas-deben-unirse-en-un-bloque-a-favor-del-matrimonio-igualitario.

[3] Vallianatos and Others v. Greece, App. Nos. 29381/09 and 32684/09 (Eur. Ct. H.R. Grand Chamber Nov. 7, 2013); Oliari and Others v. Italy, App. Nos. 18766/11 and 36030/11, (Eur. Ct. H.R. July 21, 2015); Orlandi and Others v. Italy, App. Nos. 26431/12, 26742/12, 44057/12, and 60088/12 (Eur. Ct. H.R. Dec. 14, 2017); Fedotova and Others v. Russia, App. Nos. 40792/10, 30538/14, and 43439/14 (Eur. Ct. H.R. Grand Chamber Jan. 7, 2023).

[4] Oliari and Others v. Italy, para. 185.

[5] Oliari and Others v. Italy, para. 172.

[6] Pajic v. Croatia, App. No. 68453/13 (Eur. Ct. H.R. Feb. 23, 2016); Taddeucci and McCall v. Italy, App. No. 51362/09 (Eur. Ct. H.R. June 30, 2016).

[7] P.B. and J.S. v. Austria, App. No. 18984/02 (Eur. Ct. H.R. July 22, 2010).

[8] Kozak v. Poland, App. No. 13102/02 (Eur. Ct. H.R. Mar. 2, 2010).

[9] Parliamentary Assembly of the Council of Europe, Resolution 2239, Private and Family Life: Achieving Equality Regardless of Sexual Orientation (2018), para. 4.

[10] Third Party Intervention by the Council of Europe Commissioner for Human Rights, Fedotova and Others v. Russia, App. Nos. 40792/10, 30538/14 (Eur. Ct. H.R. filed Mar. 16, 2022), paras. 15-16, https://rm.coe.int/third-party-intervention-before-the-european-court-of-human-rights-in-/1680a5de6c (accessed Apr. 25, 2024).

[11] Ibid., para. 28.

[12] Ibid., para. 25.

[13] Office of the High Commissioner for Human Rights, Born Free and Equal: Sexual Orientation, Gender Identity and Sex Characteristics in International Human Rights Law,2nd ed., 2019, https://www.ohchr.org/sites/default/files/Documents/Publications/Born_Free_and_Equal_WEB.pdf, at 73. See also Office of the High Commissioner for Human Rights, “About LGBTI People and Human Rights,” https://www.ohchr.org/en/sexual-orientation-and-gender-identity/about-lgbti-people-and-human-rights (noting that “many States have strengthened human rights protection for LGBTI people including by… [g]ranting recognition of same-sex relationships”).

[14] Yogyakarta Principles, 2006, principle 24(b), https://yogyakartaprinciples.org (accessed Jan. 26, 2023).

[15] Advocacy for Principled Action in Government et al., “Joint Letter to South Korea’s National Assembly Calling for the Immediate Passage of a Comprehensive Anti-Discrimination Law,” Dec. 20, 2017, https://www.hrw.org/news/2021/12/20/joint-letter-south-koreas-national-assembly-calling-immediate-passage-comprehensive.

[16] Ryan Thoreson, “South Korea Shouldn’t Backslide on LGBT Rights,” Human Rights Watch, Nov. 27, 2019, https://www.hrw.org/news/2019/11/27/south-korea-shouldnt-backslide-lgbt-rights.

[17] Human Rights Watch and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School, “I Thought of Myself as Defective”: Neglecting the Rights of LGBT Youth in South Korean Schools, Sept. 14, 2021, https://www.hrw.org/report/2021/09/14/i-thought-myself-defective/neglecting-rights-lgbt-youth-south-korean-schools.

[18] Raphael Rashid, “LGBT+ South Koreans Gird for Christian Protests at Pride Event,” Nikkei Asia, July 15, 2022, https://asia.nikkei.com/Politics/LGBT-South-Koreans-gird-for-Christian-protests-at-pride-event.

[19] “Hecklers Outnumber Gay-Festival-Goers in South Korea,” The Economist, Sept. 5, 2019, https://www.economist.com/asia/2019/09/05/hecklers-outnumber-gay-festival-goers-in-south-korea.

[20] Third Party Intervention by the Council of Europe Commissioner for Human Rights, Fedotova and Others v. Russia, para. 41.

[21] Human Rights Watch, “During Pride Month, a Look at LGBT Rights,” https://features.hrw.org/features/features/marriage_equality/index.html (accessed Jan. 26, 2023).

[22] Ibid.

[23] Randy Thanthong-Knight, “Thai Court Stops Shy of Granting LGBTQ Marriage Rights,” Bloomberg, Nov. 17, 2021, https://www.bloomberg.com/news/articles/2021-11-17/thai-constitutional-court-stops-shy-of-granting-marriage-rights; Elaine Lies, “Japan Court Upholds Ban on Same-Sex Marriage but Voices Rights Concern,” Reuters, Nov. 30, 2022, https://www.reuters.com/world/asia-pacific/japan-awaits-same-sex-marriage-ruling-crucial-future-lgbtq-rights-2022-11-30.

[24] Xave Gregorio, “Same-Sex Civil Unions in the Philippines: What You Need to Know,” PhilStar, Aug. 13, 2022, https://www.philstar.com/headlines/2022/08/13/2202445/same-sex-civil-unions-philippines-what-you-need-know.