The Underlying Factors Contributing to a
Lack of Social Acceptance Against the Sexual
and Gender Minorities: A Comparative Study
Between South Korea and Japan.
Camilia El Sayed
Human Rights
Bachelors Thesis
15 Credits
Spring Semester 2019
Supervisor: Jon Wittrock
ABSTRACT
In this thesis I am putting the sexual and gender minorities in South Korea and Japan under the limelight. I am discussing the topic of LGBT social acceptance, and the connection between the level of social acceptance and how the sexual and gender minorities have been perceived through history, and are currently being perceived within the law, culture and religion, politics, and Socio-economic areas in South Korea and Japan. In both countries there is still a visible lack of social acceptance towards LGBT persons, and the hypothesis of this paper is that all of the factors contributing to that outcome, except for religion, are evidently similar. The aim is to analyze and show the connection between these factors and how the sexual and gender minorities are viewed and treated, as well as to compare the outcome in respective country and discuss the similarities and differences.
Keywords: Sexual and Gender Minorities, LGBT Social Acceptance, Comparative Method,
South Korea, Japan
Table of Contents
List of Abbreviations
5
1. Introduction.
6
1.1 Research & Aim.
6
1.2 Relevance to Human Rights
7
1.2.1 Non-Discrimination & Equality
7
1.3 Delimitation
9
1.4 Chapter Outline
9
2. Theory
10
2.1 LGBT Social Acceptance.
10
3. Method & Material
13
4. Sexual and Gender Minorities in South Korea
16
4.1 Historical Background
17
4.2 Legal Perspective
18
4.3 Cultural and Religious Perspective
22
4.4 Political Perspective
25
4.5 Socio-Economic Perspective
26
5. Sexual and Gender Minorities in Japan
29
5.1 Historical Background
30
5.3 Cultural and Religious Perspective
35
5.4 Political Perspective
36
5.5 Socio-Economic Perspective
38
6. Conclusion
39
7. Future Prospects
40
8. Bibliography
42
List of Abbreviations
LGB - Lesbian, Gay, Bisexual
LGBT
-
Lesbian, Gay, Bisexual, Transexual
LGBTI
-
Lesbian, Gay, Bisexual, Transexual, Intersex
1. Introduction
Japan and South Korea (hereafter Korea) are two countries where belonging to the sexual and gender minorities is still not fully socially accepted, which is explained in “Society at a Glance”; a book written by the Organization for Co-Operation and Economic Development (OECD). The book offers a biennial overlook of the direction of the social well-being across OECD countries, and includes a special chapter on LGBT persons and their situation (OECD 2019a, OECD 2019b). In the 2019 report it is made clear that both Korea and Japan have made progress when it comes to accepting homosexuals, but that the acceptance levels are still limited. A study measuring the acceptance of homosexuals on a scale from 0-10 between two time periods, 1981-2000 and 2001-2014, showed that Korea started on a level 2 on the scale in the 1980s and ended up reaching a level 3 in 2014; and Japan, who did slightly better, started out on a level 3 and reached a level 5 in 2014. Statistical results from 2019 also
showed that, as of 2017, Korea is included in the 89% of OECD countries that have an anti-discrimination law prohibiting against anti-discrimination of LGBT persons in the workplace. Japan, however, was not included on that list, and both countries have still not legalized same-sex marriage (OECD 2019a, OECD 2019b). These statistics shows that a lack of social acceptance have been in existence for many years, and that even though progress towards reaching higher acceptance levels of LGBT persons has been made, there is still a long way to go. But what are the underlying factors that contribute to such an outcome? My hypothesis is that the factors contributing to whether the sexual and gender minorities are socially accepted or not are very similar in both the cases of Korea and Japan, namely the history, laws, culture and religion, politics, and socio-economics; with only religion seemingly being a dissimilar factor. Christianity is a religion that has a presence in both countries, but it exists on a much larger scale in Korea and Christian groups visibly only contributes to the lack of LGBT social acceptance in Korea. That being said, in this thesis I will analyze, and compare each of these factors, as well as discuss the similarities and differences of the outcomes that these factors contribute to in each country.
1.1 Research & Aim
The research in this thesis will be on the factors that evidently contributes to a lack of LGBT social acceptance; the historical events, laws, culture and religion, politics, and economics. The aim is to, on the one hand, highlight these factors and discuss if, and how each factor is contributing to the lack of social acceptance towards LGBT persons, but also to compare the
two countries to see if the outcomes are similar, or if there exist some differences. With that said the research question of this thesis is “How does the underlying factors contribute to a lack of LGBT social acceptance in Korea and Japan?”. The topic of LGBT social acceptance and the connection with factors such as law and economics is something that has been written about before; however, I have not been able to find a comparative study between Korea and Japan specifically, and therefore I find this research to be quite unique. Furthermore, when it comes to the analyzation of the legal, political and socio-economic connection with the lack of LGBT social acceptance I am using more recent material than what have been used in past works; and therefore I will be able to provide a more recent picture of how each factor contributes to the lack of LGBT social acceptance in respective country.
1.2 Relevance to Human Rights
1.2.1 Equality and Non-Discrimination
As written about in Andrew R. Flores and Andrew Park’s report “Polarized Progress: Social Acceptance of LGBT People in 141 Countries, 1981-2014 ” , not being socially accepted within a society usually leads to people facing stigmatization and being discriminated against. The discrimination can occur on an inter-personal level, but it can also be on a legal level; resulting in that the LGBT people don’t receive the same legal protection as the general population(Flores & Park 2018a, p, 2).
The current situation of the sexual and gender minorities in Korea, when it comes to equality and non-discrimination, is explained in the Korean Society of Law and Policy on Sexual Orientation and Gender Identity’s, (SOGILAW), 2017 report. In the report it is discussed that for the past years anti-LGBTI groups and conservative Christians have been attempting to nullify existing human rights laws and commands, by engaging in activities to remove “sexual orientation” from the accounts of non-discrimination that are presented in the National Human Rights of Korea Act (SOGILAW 2018, p, 96). In 2017 the anti-LGBTI groups and conservative Christians became more aggressive in their tactics opposing to the existence of anti-discrimination legislation for sexual minorities; and 17 lawmakers of the Liberty of Korea political party took their opinions into account, proposing the partial amendment bill of the National Human Rights Commission of Korea Act on September 19 that same year. The partial amendment bill would remove “sexual orientation” from the 19 accounts of non-discrimination which are specified in article 2 paragraph 3 (discriminatory
act violating the equal right), but due to enormous criticism from civil society the bill did not pass. However, not even 2 months after the first try of instating the bill, one of the lawmakers tried to prepare the amendment bill again; and this time on the basis that the term “sexual orientation” advocated for homosexuality and misleadingly supported a positive attitude towards it, and should therefore be removed. The lawmaker did not succeed and withdrew his attempts with the bill since most of civil society went against him (SOGILAW 2018, p, 96), but I believe that these kinds of activities shows what the sexual and gender minority groups have to face, and that they are being discriminated against and not seen as equals within the Korean society.
In Japan the current process towards acknowledging the existence and creating laws that protects the sexual and gender minorities is a slow one (Kim 2018, p, 8). In October 2018, the Tokyo Municipal Government (TMG) approved a LGBT non-discrimination law, obliging the TMG to address discrimination based on sexual orientation and gender identity, but also motivates companies, schools, and private schools into doing the same. The law is the first non-discrimination law concerning sexual and gender minorities, but it is only a prefectural level-law and there is still no such law existing on a national level (HRW, 2019b).
Furthermore, members of the current leading political party, the Liberal Democratic Party (LDP), does also not fully comprehend the rights of the sexual and gender minorities and has publicly discriminated against them; which is an obstacle that hinders the enactment of laws that protects the sexual and gender minorities. On top of that, these views that the leading political party holds are views that influences and creates misunderstanding and prejudiced views against the sexual and gender minorities (Kim 2018, p, 9). This shows that even in Japan there exist a visible discrimination against the sexual and gender minorities, and they aren’t treated as equals to those in the general population.
In summary, the relevance between human rights and this topic on the factors contributing to a lack of LGBT social acceptance is that it is connected to everyone’s right to equality and non-discrimination. Not being socially accepted within the Korean and Japanese communities has lead to the sexual and gender minorities having to face discrimination, and it clearly goes against the international human rights treaties which states that everyone should be treated as equals before the law and not be discriminated against. As stated in the International
without any discrimination to equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status ” (United Nations General Assembly 1966, art.26).
1.3 Delimitation
The delimitation done within this thesis is that instead of doing two separate case studies, and simply discussing the factors contributing to a lack of LGBT social acceptance in Korea and Japan separately, I compare them to discuss the similarities and differences of the outcomes. Furthermore, instead of looking at the lack of social acceptance of the sexual and gender minorities in many countries and researching the contribution of one factor, say culture, within each country, I have narrowed it down to two countries and have done a deeper research into several contributing factors. A comparative study between Japan and Korea, writing about the lack of social acceptance and several contributing factors causing it, is something that has not specifically been done before and that is why I chose to delimit myself into only looking into these two countries.
1.4 Chapter Outline
The first chapter introduces general information about my topic on the lack of social
acceptance of the sexual and gender minorities in Korea and Japan, as well as discussing the research that will be conducted and what the goal with the research is. The topic’s relevance to human rights is also mentioned, and last but not least the delimitations done within the thesis is brought up. The second chapter explains the theory that has been chosen and the third chapter discusses the method that will be used in writing this thesis, as well as the material that will be used in order to gain information on the topic. The fourth and fifth chapter discusses the historical background, the legal, cultural and religious, political and socio-economic aspects when it comes to the sexual and gender minorities in Korea and Japan respectively. In the fifth chapter I also include a comparison between Korea and Japan, discussing the similarities and differences between the contributing factors in these two countries. The sixth chapter offers a summation and conclusion of what has been discussed in the thesis; and chapter seven brings up what the future looks like for the sexual and gender minorities when it comes to being socially accepted within their communities.
2. Theory
In both Japan and Korea there is a lack of social acceptance against the sexual and gender minorities; and my hypothesis is that the lack of social acceptance is likely due to the contribution of certain factors, namely historical events, laws, culture and religion, politics, and economics. The contributing factors, except for religion, are all evidently similar in both countries. Analyzing the historical, legal, cultural and religious, political and socio-economic aspects of each country will therefore be the analytical tool that I will use in this thesis. Below, I will explain more in depth about why I chose these factors and in what way I believe that they are connected to the lack of LGBT social acceptance.
2.1 LGBT Social Acceptance
The article “Polarized Progress: Social Acceptance of LGBT People in 141 Countries, 1981-2014 ” by Flores and Park is a 2018 report that both discusses the topic of LGBT social acceptance and does a study that measures the level of LGBT social acceptance in 141 countries by using an advanced statistical model , that was developed by the authors, called the LGBT Global Acceptance Index (GAI) (Park & Flores 2018a, p, 1). The main focal point of the report is the studies measuring LGBT social acceptance globally on a scale from 0-10 with the use of the GAI. One study conducted between the years of 2004-2008 and the other between 2009 and -2013. But they also go into detail of what social acceptance is and what it contributes to, as well as what a lack of social acceptance can lead to (Flores & Park 2018a, p, 2). According to the authors LGBT social acceptance is the positive and inclusive views that the general population has against LGBT persons, both on a personal and on a legal level regarding their legal rights (Flores & Park 2018a, p, 2). In Korea and Japan the point
average of LGBT social acceptance presented only differ by a small amount, but the statistics show that Japan has become more acceptant towards LGBT persons through the years, going from an average of 4.22 between 2004-2008 to a 4.50 between 2009-2013, whilst Korea went from a 3.42 average between 2004-2008 to a 3.19 between 2009-2013 (Flores & Park 2018a, p, 27-29). The statistical result shows that even though Japan experienced an increase in LGBT social acceptance, and Korea a decrease, they are both lacking when it comes to accepting the LGBT community. Flores and Park explains that when it comes to the social acceptance of LGBT persons, it pretty much lies in the hands of the general public; as it is the attitudes of the general public that decide whether LGBT persons will be included or
the LGBT persons from a negative perspective, this in its turn can serve as the foundation for the urge to exclude and reject them, which often leads to discriminative and violent actions against LGBT persons. These kind of negative beliefs are known as stigmas, which can also be explained as a belief you have about a person due to a characteristic or mark that they possess. Stigmas can derive from tradition, media, religion, law, or other powerful sources in society. Stigma against LGBT persons can cause them to be excluded from society, but it can also lead LGBT persons to not get the same legal protection as the general population. So, in other words the lack of social acceptance of LGBT persons can lead to exclusion on a personal level but also on a legal level (Flores & Park 2018a, p, 2).
In the report ”Examining the Relationship Between Social Acceptance of LGBT People and Legal Inclusion of Sexual Minorities” Flores and Park brings up the topic of how the way the public view people belonging to the LGBT community can affect a country’s legal
inclusiveness of LGBT persons. Legal inclusiveness meaning the length to which LGBT persons are acknowledged and protected within the official, and normative legal standards of a country. Flores and Park uses the Legal Environment Index (LEI), which measures a
country’s legal inclusiveness each year, on a scale from 0-5, ranging from no inclusion to full inclusion (Flores & Park 2018b, p, 6, 8) In this report, the LEI measures 133 countries legal inclusiveness between the years 1990-2016, but only on a scale from 0-4 since no country reaches level 5. The LEI relies it’s information on secondary material regarding seven different legal norms, which have been established either judicially, legislatively or by executive action. The laws are “decriminalisation of homosexuality”, “Open Military Service”, “Employment Non-Discrimination Protections”, “Public Accommodations Protections”, “Adoption Rights for Same-Sex Couples”, “Legal Marriage Recognition” and “Constitutional Provisions Ensuring Sexual Orientation Non-Discrimination”. A country that has adopted all these laws mentioned would be considered the most inclusive, whilst those countries who has not adopted any or most of the laws would be considered the least inclusive. Both Korea and Japan from the start in the 1990s until 2016 only reached a level 1 on the LEI scale (Flores & Park 2018b, 1, 7-8, 22,24)
Flores, Park and Badgett in their article “Links Between Economic Development and New Measures of LGBT Inclusion” discusses the connection between the inclusion of LGBT persons within a country and the economic development within that country. Organizations and leaders working within the field of economic development has made comments on that
the treatment of LGBT persons might affect the economy, since LGBT persons having to face stigma, violence and discrimination, hinders them from fully contributing to the economy, and it also makes them hold back from fully participating. Current research also states that there is a linkage between the existence of rights related to homosexuality in a country and said country’s economic development (Flores, Park & Badgett 2018, p, 2).
The authors mentions three forms of exclusion of LGBT persons that can occur within the socio-economic area, the first one being the discrimination that LGBT persons might face within the work place. Discriminating against LGBT persons when it comes to employment means that they are not used to their full capacity, which thereby leads to that less people is working full-time and contributing to the economic development. Harassment against LGBT persons in the work place can also lead to them not fully contributing, as it is not optimal to work in a hostile work environment (Flores, Park & Badgett 2018, p, 4). The second example is the harassment and/ or discrimination that LGBT persons face during their educational years; resulting in them struggling and not being able to gain the skills, abilities, and knowledge needed to be able to contribute to the economy, also known by the term “human capital” by economists. Fewer years in school, and a lack in the knowledge needed reduces the amount of human capital in an economy. The third example that is brought up is a second form of human capital, namely health. LGBT people facing several challenges in their daily life reduces their health, and with that they can not contribute as much when it comes to working and the economy. Furthermore, LGBT persons has to deal with discrimination when it comes to receiving health care, since there are health care providers who denies LGBT persons treatment. Therefore, in comparison to non-LGBT persons, LGBT persons also has to face other health challenges. The discrimination, stigmatization, and violent action against them does not only affect them physically but also mentally, which leads to the existence of certain health differences between LGBT persons and the general public; and this in its turn also leads to them not being able to contribute to the economy as effectively as non-LGBT persons (Flores, Park & Badgett 2018, p, 4).
The reason for choosing these factors in particular is because, tradition, religion and law is explained to be power sources in society, that can bring forward negative views towards LGBT persons and create stigmas (Flores & Park 2018a, p, 2). Furthermore, people being discriminated within the socio-economic areas, such as the workplace, in the schools, or at health centres because they identify as something else than straight, can lead to LGBT
persons not feeling comfortable attending school, working, or visiting the hospital; which can lead to them not being able to fully contribute to the economy (Flores, Park & Badgett 2018, 4). Historical events, such as the AIDS epidemic in the 1980s, influenced the people to think that homosexual males were the carriers, and people started to fear them (Mclelland & Suganuma 2009, p, 336-337). Moreover we have the political factor, which is about how the sexual and gender minorities are treated politically. How political leaders discriminate against, and don’t care about the rights or take the issues of the sexual and gender minorities into proper consideration (Henry 2018, p, 5-6).
3. Method & Material
This segment will discuss the method, model and material that I will use in order to gain the information needed for this thesis.
In the article “Comparative method and Comparative Politics” by Arend Lijphart, the
comparative method is one of the basic methods, along with the statistical, experimental, and case study methods, that you use when you want to establish a general factual theory. In my case I want to establish the fact that law, culture, politics, and socio-economics are factors that contributes to the lack of LGBT social acceptance (Lijphart 1971, p, 682). Secondly, the comparative method is explained to be, and I quote, “a method of discovering empirical relationships among variables” which is what I am trying to establish in this thesis; I am trying to find out the relationship between law, culture, politics, socio-economics and the lack of LGBT social acceptance (Lijphart 1971, p, 683). The comparative method is also
described as a method to be used when analyzing a small number of cases but several variables, which since I will be analyzing four variables in only two countries makes sense (Lijphart 1971, p, 684-685). In summary, since I will compare the legal, cultural, political and socio-economic aspects of the sexual and gender minorities in Korea and Japan, and write about how each aspect contributes to the lack of social acceptance and discrimination against the sexual and gender minorities, and then conclude and compare the contribution of the factors in Korea and Japan to see if the occurrence within each country is similar, the comparative method fits in well.
Furthermore within the comparative research method I will take help of the Most Similar Systems Design (MSSD). This thesis won’t fully be following the MSSD, as the outcome is a
bit too similar than what the MSSD asks for, but the MSSD is the design that is the most applicable to this thesis and I have therefore chosen to incorporate it anyway. The MSSD, as Carsten Anckar explains it in his article “On the Applicability of the Most Similar Systems Design and the Most Different Systems Design in Comparative Research”, is a system where the objects that are being researched are as similar as possible, and only the resulting
phenomenon differs. The MSSD is a system where the occurrence is already visible, and what we are interested in researching are the objects that resulted in such an occurrence (Anckar 2008, p, 389). This will also be a thesis where I analyze many factors in only two countries and compare them, instead of following the more common method of comparing fewer factors in several countries. In this thesis the occurrence is that there is a lack of social acceptance towards the sexual and gender minorities in Japan and Korea; and the contributing factors have been narrowed down to the historical events, law, culture and religion, politics, and socio-economics. The contributing factors are very similar in both countries, with only religion seemingly standing out as its contribution is only clear in Korea and not in Japan. Furthermore, the current situation that these factors contribute to are very similar as well, but a vague difference can be seen. Although the contributing factors are very similar, Japanese people are evidently a bit more accepting towards the LGBT community than Korean people (OECD 2019a, OECD 2019b). Another difference is that legally Korea is a country that has enacted a non-discrimination law protecting the sexual and gender minorities against discrimination in the workplace, which does not yet exist in Japan (OECD 2019a, OECD 2019b). Thus, there is a high similarity between the factors contributing to a lack of LGBT social acceptance, and only a vague difference can be seen when it comes to the resulting phenomenon in respective country, but the MSSD is still the systems design that explains the occurrence the best.
The material that I will use to gain the information needed to write this thesis will be secondary sourced material, and two primary source materials in the form of legal documents, that I briefly quote in order to strengthen my thesis (United Nations General Assembly 1966, art.26) (Military Criminal Act, 2016). I will use reliable material, such as three chapters of the ”Korean Society: An Introduction”, which is an edited book by Andrew Eungi Kim consisting of written essays by several Korean university professors on the topic of all aspects concerning Korean society; culture, religion, ethics and so on (Kim A, 2017a, Kim A 2017b, Kim 2017c). An annual report written by the Korean Organization
(SOGILAW, 2018), and an article published in the Asia-Pacific Human Rights Information Center’s (HURIGHTS) newsletter, Focus. The newsletter contains of reports on the human rights situation in whole of east asia, but the text used in this thesis is written by Halim Kim and is about the LGBT situation when it comes to laws and policies in Japan (Kim, H 2018). I will also refer to the reports written by Andrew Flores, Andrew Park and M.V Lee Badgett from the Williams Institute at UCLA School of Law, who writes reports and does studies on LGBT social acceptance, economics and LGBT inclusion, and social acceptance and legal inclusion (Flores & Park 2018a, Flores & Park 2018b, Flores, Park & Badgett 2018). Furthermore, I will use the paper written by Lijphart to discuss the use of the comparative method and the MSSD (Lijphart, 1971). I will use reports by, amongst others, human rights organizations such as Amnesty International (AI) and the Human Rights Watch (HRW) (AI 2019, HRW 2019a, HRW 2019b), and material that focuses on the LGBT persons in OECD countries that are written by the organization OECD themselves (OECD 2019a, OECD 2019b). Several per reviewed academic journals written on the topic of the historical background and the cultural, legal, political and socio-economic situation of the sexual and gender minorities in Korea and Japan respectively will also be included, such as the works by Mark Mclelland and Katsuhiko, Suganuma (Mclelland & Suganuma 2009), and Todd A. Henry (Henry, 2018), and many more.
4. Sexual and Gender Minorities in South
Korea
4.1 Historical Background
Peters mentions cross-time comparisons in his book on comparative politics, meaning that analyzing a certain event during time within a country can contribute to the understanding of why a certain changes within that country occurred (Peters 1998, p, 24). With that said, in this part I will discuss the historical background of the sexual and gender minorities in Korea. Discussing historical events and how the sexual and gender minorities were looked at through the times in Korea will open up the readers eyes to how the sexual and gender minorities were treated in the past and how they are treated today. If they were looked at differently in the past, what was it that created the social exclusion, stigmatization and discrimination that they are facing today?
Young-Gwan Kim and Sook-Ja Hahn in “Homosexuality in Ancient and Modern Korea” takes us back to the Silla Dynasty (B.C. 57- A.D. 935) and the Hwarang. Hwarang were the leaders of a military group, consisting of hundreds of men, and chosen by the sons of highly esteemed noblemen due to popular election. The Hwarang’s first an foremost task was to fight a common enemy and to advance the common welfare by increasing national power. However, they were not only elite warriors, they also concern for eroticism and ecstasy. This is hinted in the poems written in the everyday language of the times (Kim & Hahn 2006, p, 61). During the Koryo Dynasty, one of the Kings, Kongmin (A.D 1352-1374), was known for engaging in sexual intercourse with boys that he kept with him especially to do such
activities. Same-sex sexual relationships, during these times, were described as the dragon and the sun, which has the meaning of two male characters coming together(Kim & Hahn 2006, p, 62). In the Chosun Dynasty (1392- 1910) homosexual practices were seen as an immoral practice amongst the upper- middle classes, but such actions were still believed to be commonly practiced: both amongst the upper middle-classes, and the lower classes in the countryside (Kim & Hahn 2006, p, 62). Furthermore, from the middle of this era,
homosexual men that earned a living engaging in prostitution, known as namsadang, were a common feature within the rural Korean life. In modern times there also exist terms deriving from those times that is used within Korean informal conversational language. For example, the term Hwarang has brought forward other modern terms, such as hwallyangi, meaning playboy, and the word Hwarangnyeon, meaning slut or prostitute. Modern Hwarang, playboys, are also seen as a group consisting of homosexuals (Kim & Hahn 2006, p, 62).
In the modern times this view of homosexuality has changed for the worse. Homosexuality is often described as a disease, a mental sickness, and if you identify as homosexual you are committing a sin. The HIV/AIDS epidemic in the 1980s brought a lot of attention towards the gay males, as they were misunderstood as being the carriers. People feared them, thinking that they were gonna spread it to the normal people. Both in the past and today still, homosexuals are believed to be feminine, and enjoyers of wearing clothes of the opposite gender (Kim & Hahn 2006, p, 62). However, the contemporary Korean views of the homosexuals is a mix of the modern and the historical way of seeing them. In public, the performance of sexual activities are governed by strict laws stating that sex is only allowed to occur between a man and a woman in a monogamous marriage. But there are still many opportunities for men and women alike to have social and non-sexual physical contact with people of the same sex; both during and after their school years. In this way, two people of the same gender are easily able to enjoy a close and emotional relationship with each other (Kim & Hahn 2006, p, 62-63). Generally, due to a lack of knowledge regarding what homosexuality is and how it is expressed, it is seen as an act of perversion. Some see it as a mental illness, others as a genetic disorder. But most commonly, however, homosexuality is believed to be a perverted act that can be stopped at ones will (Kim & Hahn 2006, p, 62-63).
When Park Geun-Hye stepped down from her position as president and Moon Jae-In took over, many of the marginalized groups felt optimistic that they would gain better legal
protection, cultural acceptance and social welfare rights, but that was not the case. The stigma and discrimination towards the sexual and gender minorities are highly present, and their issues are not being prioritized. LGBTI activists are fighting to make their voices heard but the leaders pay little attention to their needs (Henry 2018, 5-7) (SOGILAW 2018, p, 98).
4.2 Legal Perspective
Regarding the legal perspective of belonging to the sexual and gender minorities in Korea I will write a bit about the past laws concerning the sexual and gender minorities discussed in Laurent’s 2005 article, but my main focus will be on SOGILAW, discussing a bit about who they are, and write about the most recent dated Sexual Orientation and Gender Identity (SOGI) laws I could find; and that are discussed in their 2017 report.
To create a contrast between how the laws looked in the past and how they currently look, I will start by mentioning Korea’s legal situation regarding the sexual and gender minorities looked in 2005 when Laurent wrote his article on the subject. In 2005 Laurent’s article discussed that there did not exist any laws that hindered same-sex relationships, and this was seemingly because of the Japanese colonialist legacy. The legal age of consent for sexual acts is 13 years old for both straight and homosexual persons. Furthermore, the “National Human Rights Law”, that was established in 2001, states that “any discrimination on the basis of sexual preference is not allowed”. Transsexuals who has gone through gender reassignment surgery were still not legally allowed to change their gender; since within the law, gender reassignment surgery was seen as mere plastic surgery, and not as actual gender transition. Also, the 2000 Youth Protection Law, claims that material consisting of homosexuality are not allowed to be distributed (Laurent 2005, p, 206). Laurent also writes that, when it comes to putting laws in action, the Korean government stepped in and shut down the first Seoul Queer and Video Film Festival in 1997; and even when the festival moved their screening to another location it was claimed to be illegal by the government. According to text the government interrupted and cancelled events due to their own personal homophobic views (Laurent 2005, p, 206-207).
SOGILAW is a group, created in 2011, that consists of human rights lawyers and researchers that works with advocating for the LGBTI community, and with advancing the intellectual discussions on the issues concerning sexual orientation and gender identity. Furthermore, SOGILAW is working with bringing change to the social and legal policies in order to
protect the human rights of the LGBTI community. As mentioned above, in 2005 transgender people were not allowed to legally change their gender even if they had had gender
reassignment surgery. SOGILAW is a group that has worked on projects including lawsuits towards changing the illegality of transgender people changing their gender. Surveys and annual reports regarding the human rights situation of the LGBTI community is something that SOGILAW also works with (SOGILAW 2018, p, 5). Every year on the international day against homophobia, SOGILAW publishes their annual review, where they write in both Korean and English about the human rights situation in Korea for LGBTI people in different areas, and also brings up current Korean laws concerning sexual orientation and gender identity. The report updates us on laws regarding the sexual and gender minorities in
following areas, the general area, the military, correctional facilities, legal gender recognition, criminal procedure, public health, Korean immigration service, basic local government, and
regional local government (SOGILAW 2018, p, 11-12, 91-143, 147-157). With the help of their most recent 2017 review I will discuss some of the current available laws that visibly shows a lack of inclusion and social acceptance towards the sexual and gender minorities in Korea.
The first law that I would like to bring up, is a Korean law that has received a lot of attention from human rights organizations and activist groups for going against the international human rights of equality and non-discrimination; namely the military criminal act. The act that was enacted in 1962, under article 92 (disgraceful conduct) stated in the past that, “A person who commits Gyegan or other disgraceful conduct shall be punished by imprisonment with prison labor for no more than one year”. Gyegan, meaning the act of anal sex between males, was an act that was punished with one year imprisonment even if the sex was
consensual. In, 2013 a revision of article 92 paragraph 6, “A person who commits anal sex or other disgraceful conduct on any person falling under provision of article 1(1) through (3) shall be punished by imprisonment with labor for not more than 2 years”, was made (SOGILAW 2018, p, 147) (Military Criminal Act, 2016, art. 1(1)-3) Henceforth the punishment of engaging in homosexual relations in the military increased from 1 year to 2 years.
SOGILAW’s 2015 annual review mentioned that in 2014 a bill for the abolishment of the crime stated in chapter 92-6 of the military criminal act was suggested, and the following year human rights organizations and human rights activist groups started to speak out more actively for the nullification of the provision. In June 2015, before the opening ceremony of the Korea Queer Cultural Festival (KQCF), a press conference was held by the KQCF Organizing committee and the Rainbow Action against Sexual Minority Discrimination; where they spoke out for the annulment of article 92(6). The groups voiced their opinions on that the clause spread hate towards the LGBTI community, violated sexual autonomy and went against LGBTI people’s rights to equality. The UN human rights committee also expressed worry regarding that article 92-6 punished men that had consensual sex in the military, and for the first time recommended that it should be abolished (SOGILAW 2016, p, 29-30). In March this year the human rights watch (HRW) also wrote a report stating that article 92(6) went against Korea’s international human rights obligations, since it punishes males who engage in sexual intercourse no matter if its consensual or within or outside military territory. But despite these criticisms and voices demanding the abolishment of the
law, it still remains intact. The Korean government has continuously defended the law stating that a law against sexual intercourse is necessary in order to preserve discipline within the predominantly male military (HRW, 2019a).
Under the area of legal gender recognition, the principle being “Guidelines on the Clerical Processing of Cases of Transgender People’s Application for Legal Gender Recognition (Supreme Court established rules on family relationship registration)” discusses the process that transgender people has to go through in order to be able to apply for legal gender recognition. The requirements include that the transgender person needs to be at least 19 years of age, but even if a person is older than 19 they are not allowed to apply if they have a child that is younger than 19 years of age. The transgender person needs to have been
diagnosed with transsexualism by a professional, handed in documents; signed by either the doctor who performed the gender transition surgery, or under special circumstances an other identified professional, confirming that he/she currently has the external genitals of the opposite sex. Furthermore a licensed physician needs to have documented that he/she is sterile and won’t ever be able to have children, and the transgender person also needs to have parental consent in order to be able to receive legal recognition for having changed his or her gender (SOGILAW 2018, p, 149). Thus, even though the conditions under which a person can apply to legally be recognized for changing his or her gender has slightly improved, they still need parental consent, acquire numerous documents that states that they have the external genitals of the opposite gender and are sterile, and if they have children that are below the age of 19 they are not allowed to apply no matter their own ages.
The last law that, of those mentioned in the report, visibly discriminates against the sexual minorities is the “Blood Donation Questionnaire Form (Minister of Health and Public
Welfare)” regulation, which states that males who have engaged in sexual relations with other males, within the last year, are not allowed to donate blood. Therefore, since the same does not go for males who have had sex with females or vice versa it is a law that discriminates against gay males, and also shows that they aren’t being considered as equals to those who are straight (SOGILAW 2018, p, 153).
Despite still struggling with socially accepting the sexual and gender minorities, however, some positive developments have been happening in Korea. A transgender woman that had not gone through genital reassignment surgery got to change her gender legally. It was the
first case of a transgender woman getting to legally change her wonder, and it is a step forward for transgender women. Furthermore, an ex officio request for the adjudication on the constitutionality of Article 92-6 of the Military Criminal Act, which as mentioned above punishes consensual same-sex sexual acts within the military; and has received a lot of criticism from both local human rights organizations and activist groups, was filed by the Incheon District Court in February 2017. Through a legislation petition the National Assembly also introduced a bill to eliminate the law within the Military Criminal Act that punishes “sexual conduct” (SOGILAW 2018, p, 83-84).
4.3 Cultural and Religious Perspective
In this section I will speak about the influence that mainly culture, but also religion has, when it comes to the Social acceptance of the sexual and gender minorities in Korea. As was already discussed in Flores and Parks report on LGBT social acceptance, tradition and religion is a power source in society that can have a great influence on how the public views LGBT persons.
In the book “Korean Society: An Introduction”, a compilation of works edited by Andrew Eungi Kim, the introductive chapter “Trends and Changes in Contemporary Korean Society” informs the reader about the most important aspects of Korean culture. This chapter explains that there exist five important aspects when it comes to understanding a new culture,
symbols, language, beliefs, values and norms; with values being the one that is the most complex but also the one of most importance. Within Korean values the most fundamental ones has been instructed by confuscianism, and it is no overstatement to say that almost every Korean person is practicing it. There are many Korean values, but the most essential ones involves filial piety, patriarchy, ancestor worship, hierarchy, education, familism, and
collectivism. Other values that are key to understanding Korean culture are showing affection towards in-group members, prioritising the mood of a collective group over ones own, being very watchful of what others thinks; especially when it comes to your superiors, and always save-face in public; meaning that you only do things that is not seen negatively by others (Kim 2017a, p, 20).
Kim’s words is strengthened by the article by Kim & Hahn where it is also mentioned how Confucianism highly influences Korean culture, and that Confucianism is a system of
education, ceremony and civil administration. Confucianism is built up of Sam-Kang-Oh-Ryun, the three fundamental and five moral laws, which has ruled the social and political life of Koreans for much of the country’s existence. It has been an influence in how the social order within the family system is built up, as well as the way Korean’s think, philosophize, and how they lead their lives. The three fundamental laws are, “the king is the mainstay of the state” , “the father is the mainstay of the son”, and “the husband is the mainstay of the wife”; and the five moral laws, “Between father and son it requires friendship”, “Between king and courtier, righteousness”, “between husband and wife, deference”, “between old and young, degree”, and “between friends, faith” (Kim & Hahn 2006, p, 60). So, these are the fundamental and moral laws that are the backbone of how Korean’s see things. The king rules the state, the father rules over his son, and the husband rules over his wife. Furthermore, morally the younger should respect their elders, the wife is submissive to the husband, and so on. Confuscianism speaks for ranked relationships, family/ patriarchal conservatism, an unwillingness to accept change, and believes that a central focus should be on the family. To the Korean people, the family is more than an emotional and physical unit, it is a model of social construction and life; the way the family functions is believed to be connected to social harmony. Furthermore, within confuscianism the society is an extension of the family (Kim & Hahn 2006, p, 60). Filial piety is one of the key values within korean culture, which is mentioned above, and it is a moral standard that is not only important for individuals, but it is also a key principle when it comes to human relations and social institutions. Filial piety implicates that individuals should put the interests and wishes of the collective group before their own. This is explained in Kim’s text “Nation-Building in South Korea: The role of Civil Religion in the Making of National Identity and Community” (Kim 2017b, p, 66). These important elements, in their turn, seeps in and influences the everyday life of Koreans, and it is therefore many koreans also believe that heterosexuality is a key social and ethical norm (Kim & Hahn 2006, p, 60).
Laurent speaks of that it was Buddhism and Confucianism, coming in from China, that influenced the view Koreans has on homosexuality: with Buddhism showing greater tolerance towards same-sex sexual relations, as long as it is practiced in moderation. Confucianism, however, emphasizes the importance of the social order and family, and has the opinion that male same-sex sexual relations is a threat, whilst female same-sex sexual relations are just simply not given any thought to. Combined these two ways of thinking has
resulted in a general view that homosexuality can be accepted as long as it does not interfere with marriage, family, and procreation (Laurent 2005, p, 205).
However, it is not only Confucianism and Buddhism that has an influence on how Koreans view homosexuality. Kim, in the book on Korean Society, writes about that Protestantism is the second biggest religion in Korea, and that for the last four decades it has been the religion that has grown the fastest (Kim 2017c, p, 278). In Korea it is conservative Christians that has shown the biggest opposition against LGBT persons in Korea, and in many instances has Koreans belonging to the Christian religion shown huge negativity towards the sexual and gender minorities. The 2017 article “Evangelical Christian Discourse in South Korea on the LGBT: the Politics of Cross-Border Learning” by Joseph Yi, Gowoon Jung, and Joe Phillips explains that Korean evangelical activists claims that they need to follow the examples of their western counterparts and go against any concession to gay rights. As a result 1000 of conservative Christians where at the 2015 Queer Culture Festival publicly showing their disapproval (Yi, Jung & Phillips 2017, p, 31). Todd A. Henry’s article, “Queer/Korean Studies as Critique: A Provocation”, discussed that Moon’s highly conservative opponent, Hong Joon-Pyo, publicly stated that he found the military criminal act’s conservative punishment for anal sex between males within the military to be legitimate, since such acts was a security concern that called for intrusive surveillance and cruel penalizing. This homophobic viewpoint that Hong was taking was also stated to be echoing the political arguments from an increasing number of fundamentalist Christians. Current president Moon Jae-In’s reply to Hong was that he also did not support the sexual and gender minorities, and this was because he was afraid of loosing conservative supporters (Henry 2018, p, 6).
Furthermore, in SOGILAW’s 2017 report it is mentioned that when it came to equality and non-discrimination anti-LGBTI groups along with conservative christians were the ones that were most against, and tried to prevent The LGBTI community from benefitting from the non-discrimination laws (SOGILAW 2018, p, 96). This shows that whilst the culture has a huge influence on how Koreans think and lead their lives, Koreans following Christian values are the ones that try to interfere the most with the legal protection and freedom of the sexual and gender minorities in Korea.
4.4 Political Perspective
Under the political perspective, I will discuss how the sexual and gender minorities are treated politically. Are political parties and political leaders supportive of that there should be laws or other ways to protect sexual and gender minorities or should they simply be cast away? These are the questions that will be discussed in this part.
Henry’s article “Queer/Korean Studies as Critique: A Provocation” from July 2018, which was mentioned above, is the latest article I have been able to find mentioning the political situation in Korea and its connection to the current situation of the sexual and gender minorities. In the article it is discussed that in early 2018 Moon Jae-In took over the role as president of Korea, after the former president Park Geun - Hye had been sentenced to 24 years in prison for coercion and abusement of power. Moon was a student activist in the 1970s and later became a human rights lawyer. This in its turn led to LGBTI activists and other activists who were marginalised to voice their optimism that discrimination against them would now be over. The LGBTI activists and other marginalized groups felt that with Moon as their country’s leader they would have more legal protection, social welfare, and cultural acceptance. However, before Moon had even been formally elected, he made it clear to the people that, even under his liberal ruling, sexual and gender minorities would not get the protection they had hoped for (Henry 2018, p, 5-6). In the insightful debate where Moon’s opponent, Hong, voiced his opinion on that he thought that the military’s debatable
oppression of gay soldiers was a licit issue, and that the solution to end gay sexual relationships within the army was inhumane punishment, Moon, afraid to lose culturally conservative supporters, responded to Hong’s homophobic statement that he too was against the rights of the sexual and gender minorities (Henry 2018, p, 5-6) (SOGILAW 2018, p, 98). Moon’s statement infuriated the activists who viewed the response as hate speech and
demanded an apology: one particularly brave woman even ran upon stage with a rainbow flag during one of his speeches; leading to Moon offering the protesters a deceitful utterance where he stated that he did not support the discrimination of sexual and gender minorities, and distancing himself from Hong. However, Moon has still continuously repeated his opposition of gay marriage and other basic legal protections (Henry 2018, p, 6).
In SOGILAW’s 2017 report it is mentioned that one of the main demands from civil society during the 19th presidential election in 2017 was the enactment of an anti-discrimination law
that clearly prohibits discrimination against the sexual minorities, and none of the presidential candidates except for Shim Sang-jung took a clear stand on the matter. Moon had pledged to make a comprehensive anti-discrimination law during the 2012 presidential election, but in the 2017 election he made no such promises, and when he spoke at a meeting with
conservative Christian organizations, he stated that, in order to not create unnecessary controversies, no more laws on homosexuality and same-sex marriage should be established. Even after Moon’s official election the enactment of an understandable anti-discrimination law was not part of any of the 100 major government policy tasks, since it might cause public controversies (SOGILAW 2018, p, 97-98).
It was in this way that the LGBTI activism that had been going on for twenty years resulted in the sexual and gender minorities being included into Korea’s national politics. But despite being on the national political agenda the issues concerning the sexual and gender minorities are currently being put on hold. It is a disempowering situation for the Korean LGBTI activists, however they have responded to their ongoing marginalization by taking on the motto “There is no later, only right now”. The motto, which is seen as a life-or-death demand for the LGBTI community to be acknowledged as humans and to receive proper legal
protection, could be seen worn on brightly coloured t-shirts and signs at the 2017 pride festival (Henry 2018, p, 6-7). In this way it can be seen that the issues concerning the sexual and gender minorities in Korea are issues that are not being prioritized due to the political leaders evidently not accepting them.
4.5 Socio-economic Perspective
The economic connection with LGBT social acceptance, which was mentioned in Flores, Park and Badgett’s article on the connection between a country’s economic growth and LGBT inclusion, is that exclusion of LGBT people can affect a country’s GDP per capita. Exclusion of LGBT persons, when it comes to employment and harassment within the
workplace, discrimination, stigmatization and violence within the schools; leading to a reduce in education, and discrimination within the health care are three examples that can result in LGBT persons not being able to fully contribute to the economy, and in its turn affect a country’s GDP per capita (Flores, Park & Badgett 2018, p, 3). This segment will focus on the ways that LGBT persons are excluded, discriminated, and stigmatized against in the
contribute to the economy in Korea, and with that show that discrimination within the socio-economic areas occur.
In 2017 a Korean language teacher was recommended to apologize since she had voiced hatred against LGBTI persons during her class at a middle school in Seoul, expressing that“AIDS will spread if we don’t prevent sexual intercourse between men. Those who commit bestiality are also sexual minorities”. Another case, that was forwarded by the Daegu Dalseo Police Station, included 3 daycare center employees in Daegu, and the center’s deputy director, who were prosecuted of child abuse. The employees made 18 5th and 6th graders, who were there to do volunteer work, watch a video clip that sparked hatred and
discrimination against sexual minorities. It was an edited version of a video clip that was initially created by the Seoul Mega-church, and it showed numerous detailed pictures of corpses and animal carcasses. Comments like”organizations that support sexual minorities and take part in the homosexuality movement are communist”, and ”sexual minorities engage in intercourse with animals and corpses”. The elementary school gave the teacher in charge a warning and she was removed from the position of taking care of the volunteers, and further measures against the day-care center was stated to be taken in accordance with the police investigation results (SOGILAW 2018, p, 104). On university level, Sogang university, had an occurrence where a transgender male student was looked down on by a professor at the university’s Character Development Center, because he asked for alternative ways of lodging during an event that required the students lodging together, and was told to sleep in the same room as the girls; since he was legally a woman. The student reported it and an apology was issued by the university and the Character Development Center. Furthermore, Handong Global University’s Office of the Chaplain had a declaration issued in May 2017. The declaration confirmed the university’s theological opinion on same-sex marriage and ‘homosexuality’, stating that “homosexual acts essentially brings harm and disease to individuals and the community”, and “curing homosexuality is the true restoration of human rights”. On the day after the issuance of the declaration a special lecture was held to spread the views of anti-LGBT organizations, and more than 400 students were present to listen. Also in September the same year a lecture was cancelled since the one speaking was a professor who had made a facebook post in support of LGBTI rights (SOGILAW 2018, p, 105).
When it comes to health the ‘Study on the Health of LGB Adults in Korea’, conducted by Professor Kim Seung-sup’s research team at the Korea University School of Health Policy and Management, and the LGBTI Suicide Prevention Project ‘Linking Hearts’ showed that the participants suicidal impulses during the past 12 months were 7.51 times higher, and suicidal attempts 9,25 times higher than that of the general population; which was highly alarming; and the attempts and suicides were found to be connected with social
discrimination. Out of the 2,314 LGB Adults, ages 19 or older, that participated in the study, 23% that had not been a victim of social violence in the last year stated that they had suicidal thoughts, whereas 34.2% of those who had experienced social violence had suicidal thoughts (SOGILAW 2018, p, 125).
When it comes to health the most common stigma is the one related to HIV/AIDS, and that it is connected to same-sex sexual relations in Korea. People with HIV/AIDS has stated that due to the stigma they don’t dare reveal their information in hospitals, as well as the prejudice of health carers against people with HIV/AIDS being a serious problem (SOGILAW 2018, p, 125-126).
5.1 Historical Background
As in South Korea, in Japan same-sex sexual relations has been in existence since far back in the times and Laurent discusses this in his article as well. Mentioning that there exist a good amount of documentation on sexuality in Japan since the 12th century: especially in the diaries written by people belonging to the court. There existed three areas were homosexual activities commonly occurred, Buddhist monasteries, the military, and the theatre world: and the existence of female-to-male transgender practices, cross-dressing and female same-sex relations could especially be attested within the Buddhist sphere. Furthermore, books like chigo monogatari, tells the story of the sexual relationships between buddhist monks and young ephebes, young boys between the age of 10-16, that was kept in the temples to be used for domestic purposes but also as sexual partners for the monks. These young boys were also known under the name Chigo (Laurent 2005, p, 208).
In the article “Sexual Minorities and Human Rights in Japan: A Historical Perspective” by Mark Mclelland and Katsuhiko Suganuma it is stated that homosexuality in Japan was considered more common than unusual in the past. The article starts by introducing same-sex eroticism that occurred during the edo-period (1603-1867), and how at that time no normative linkage was made between gender and sexual preference; because all men, no matter class, could engage in sexual relationships with whichever gender they preferred. During this period same-sex eroticism was ruled by ethical codes known as nanshoku (male eroticism) and Shudō (the way of youths), which were circumstances when high ranked men had the possibility to seduce young men and boys who had not yet had their coming of age ceremonies, and were not considered as adults (Mclelland & Suganuma 2009, p, 330). Furthermore, transgender males belonging to the lower classes could be found within the kabuki theatre scene. With that said, same-sex eroticism was not only a clearly visible social reality it was also widely represented within the cultural scene, in the arts, on stage, and in the literature. Nanshoku, which in kanji, is built up of the characters for male, and eroticism, has a synonymous term called joshoku; built up of the characters for female and eroticism, but whilst nanshoku speaks of the same-sex sexual relationships between males, joshoku is actually about the love relationships between a woman and a man. Even though there does exist some literary and artistic documentation on sexual acts between females, with male onlookers, these documentations were not granted the same recognition as male same-sex love; and because of this in the edo-period there did not exist a theory on female same-sex
relationships. This, however, does not conclude that female same-sex love did not widely exist, there just was not a lot of documentation on such happenings (Mclelland & Suganuma 2009, p, 330-331). The Meiji period (1867-1912) was the period when the development of sexology was happening within European medical circles, and also the period when Japan opened up to western influences. Sexology ‘scientifically’ criticized the legal and religious disapprobations of homosexuality, so when Japanese intellectuals and experts travelled to the west for knowledge they brought back the knowledge they had gained to Japan (Mclelland & Suganuma 2009, p, 331). The following era, the Taisho period (1912- 25), was the era when the first explosion of an interest in ‘queer sexuality’ took place. It was during this time period that the popular term “same-sex love” emerged, which was a rough translation of the
European idea of ‘homosexuality’. It was the first time in Japanese history that there had existed a term that included both female and male same-sex romantic and sexual
relationships. The early twentieth century was also a period when highly regarded female writers publicly wrote about their relationships with other women, one of them being the Japanese- Russian translator, Yuasa Yoshiko. The word rezubian (lesbian) was not a commonly used word in pre-war Japan but Yoshiko confessed in an interview, later in her life, that she indeed identified as a rezubian (Mclelland & Suganuma 2009, p, 331).
The 1930s, however, was a period when Japan fell into militarism and the government strictly controlled sexual discussions and practices, leading to that it was a very heteronormative and pro-natal time. But despite this the relationship between social groups became more and more homo-social. The 1930s was a time when many men had to join the military and were
separated from their wives. It was a time when romance was known as being dead, and homo-social brotherhood grew. One text, published in 1952, called “Homosexuality on the battlefront” also hinted at that homoerotic relationships occurred within the military, since there did not exist any women (Mclelland & Suganuma 2009, p, 331-332). The time that followed directly after the war showed signs that the traditional sex and gender roles had loosened and the public’s curiosities grew. The 1950s was a time when magazines where queer individuals talked about their lives was published (Mclelland & Suganuma 2009, p, 333). In the 1980s queer activism started and it was the term rezubian (lesbian) that was first connected with politics, and it was lesbians who first started creating group ties based on politics and not just sexual attraction (Mclelland & Suganuma 2009, p, 334). In the mid-1980s the political activism amongst the sexual minority groups increased and it can mainly be understood because of the panic that occurred around AIDS/HIV. Homosexual males were
undeservedly pointed out as the as carriers of the virus, and it was discussed that the Ministry of Welfare and Health blamed the gay males in order to cover the truth that the people that had contracted the infection where people who had received non-sterilized blood for haemophilia. The ministry even stated that homosexuality is what leads to HIV infection, which in its turn made people view homosexuals, and especially gay males in a very negative way (Mclelland & Suganuma 2009, p, 336-337).
The stigma against the sexual and gender minorities still persists, and it is especially visible in the fact that there does not exist any comprehensible laws that prohibits discrimination against the sexual and gender minorities. The Tokyo municipal government passed the first sexual and gender minority non-discrimination law last year, but it is only a law within the Tokyo prefecture, no such law exists on the national level (HRW, 2019).
Comparing Japan’s historical background to Korea’s we can see that both countries have a history were engaging in homoerotic activities have been in existence since many years back, and was also more acceptable in the past. For both countries certain events in history has had an influence on how belonging to the sexual and gender minorities is seen. In Japan,
militarism in the 1930s contributed to how the public viewed and judged people belonging to the sexual and gender minorities, and for both Korea and Japan, the events regarding
AIDS/HIV in the 1980s, and that the main carriers were believed to be gay males, influenced the general public’s view on homosexuality and created stigma.
5.2 Legal Perspective
Laurent’s texts from 2005 states that in Japan there did not exist any mention of homosexuality in any legal text. Within the law “sexual conduct” refers to the sexual relationship between a man and a woman. The term “homosexuality”, even though it was criticized by international human rights groups and Japanese citizens, was removed from the human rights guideline in 2000 since it was believed that the Tokyo citizens did not
understand the meaning of homosexuality (Laurent 2005, p, 210) A name for same-sex sexual relations in Japan, seikô ruiji kôi, which can be roughly translated into “behaviour similar to sexual conduct”, exists, but from a legal perspective homosexuals are non-existent. However, discrimination against homosexuals still exist, and this was something that The Council for Human Rights Protection (within the Ministry of Justice) brought up in their May
2001 report. A new human rights commission was to be established in 2003, or 2004 and the term “homosexuality” was reinstated into the human rights guideline. “Homosexuality” was considered a mental disability until 1995 when the Japanese Society of Psychiatry and Neurology removed it from the list of mental diseases (Laurent 2005, p, 210). Transsexuals has had the legal possibility to go through sex-reassignment surgery since 1998, but their names could not legally be changed on the family registry. Furthermore, transsexuals cannot marry persons of the opposite sex, since it, in such a case, was considered to be same-sex marriage. Marriage laws in Japan can be found in article 24 of the 1947 constitution, and book IV of the civil code. Article 24 of the 1947 constitution states that “Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through
co-operation with the equal rights of husband and wife as a basis”. Considering the law includes the words “both sexes”, the majority of family lawyers in Japan agrees that marriage is only allowed between a man and a woman (Laurent 2005, p, 210).
The current legal situation regarding the rights of the sexual and gender minorities in Japan are discussed in an article published in the Asia-Pacific Human Rights Information Center’s (HURIGHTS) newsletter, Focus, called “Rights of Sexual Minorities in Japan: Policies and Recent Developments” and is written by Halim Kim. It is explained in the article that the progress towards protecting and actualising the rights of the people belonging to the LGBT community in Japan has been very slow. Back in December 2008, Japan was one of sixty five countries attending the 70th plenary meeting of the United Nations General Assembly, reaffirming once again the human rights that should be enjoyed by “all human beings regardless of their sexual orientation or gender identity” (Kim 2018, p, 8). Furthermore, out of the attending 65, Japan was one of 23 countries that voted for the Human Rights Council’s resolution adopted in 2011, which spoke for a study to document “discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, in all regions of the world”. Action has been taken by both local and national
governments in order to further support and increase their understanding of LGBT persons, but coming up with effective policies that addresses the abuse of rights based on sexual orientation and gender identity is something that Japan has failed in doing (Kim 2018, p, 8).
The national government approved, in 2012, the General Principles of Suicide Prevention Policy, which was the first policy that fully acknowledged the high suicide rates of people belonging to the LGBT community; and that the need to advocate for the understanding and
reducing the prejudgment against LGBT youth amongst school teachers and other educators was an urgent matter (Kim 2018, p, 8). 4 years later, in 2016, the Ministry of Culture, Sports, Science, and Technology (MEXT) published a guideline for school teachers on how to handle kids in relation to their sexual orientation and gender identity (SOGI). A year later, MEXT made an update so that the sexual and gender minority would be covered under the Basic Policy for the Prevention of Bullying. MEXT’s latest update of the national school
curriculum, however, does not mention the sexual and gender minorities at all (Kim 2018, p, 8).
In January 2017 the National Personnel Authority’s regulation on prevention of sexual harassment in the work place was changed to specifically include “remarks and behaviour based on prejudice regarding sexual orientation or gender identity”. But the principle does not apply for local government offices and the private sector. Following in the same month, additional changes in the Sexual Harassment Guidelines for Employers was approved by the cabinet and prepared by the Ministry of Labor, Health and Welfare: now the guidelines states that sexual harassment should be appropriately handled by the employers, but it has not been clearly explained what forms of sexual harassment this entails (Kim 2018, p, 8).
The National Government has also acted in doing other legal improvements concerning LGBT issues, examples include the 2014 Act on the Prevention of Spousal Violence and the Protection of Victims, and the 2015 Fourth Basic Plan on Gender Equality. However, despite the existence of these legal improvements there still does not exist any easily understandable anti-discrimination law protecting sexual minorities from facing discrimination, legal
difficulties and discrimination within fields such as, education, housing, health, workplace, and marriage (Kim 2018, p, 8).
On the local government level in Japan, however, several cities and wards has, with a start in 2015, started issuing certificates that recognizes same-sex union. It started in Tokyo’s
Shibuya office in 2015, and then it spread to other cities and wards, for example Bunkyo ward in 2017, and Nakano ward in 2018. The issuance of this certificate is something that the cities and wards have done on their own initiative; only in the case of the Shibuya ward was it a command. Furthermore, most local governments that issue the certificate only issue it to same-sex couples, except for in the case of Sapporo, Fukuoka, and Osaka where they also recognize couples were one of the partners are an LGBT person (Kim 2018, p, 8-9).
