성전환자의 성별정정 허가기준과 그 입법적 제안 — 대상결정: 대법원ﾠ2011.9.2.자 2009스117 전원합의체결정 —

Abstract

This paper is about the legal standards for the "sex correction" of transsexuals on the National Family Registration. A significant case regarding this issue was decided at the Supreme Court recently. In this case, the applicant has suffered from disorders of sexual identity for a long time. She has believed that she is a woman and the people around her have recognized her as a woman because she has put on the woman's clothing. But she was registered as a man because she was born a man. After receiving several psychiatric treatments to overcome her sexual disorders, she made up her mind to maintain her psychological sexual orientation. Finally, she had a sex reassignment surgery and mammoplasty on Aug. 8. 2006 in Thailand. After the operation, she has undergone the estrogen therapies. In the meanwhile, she was married on Oct. 21.1992 and had a baby on Nov. 8. 1994, but got a divorce. Afterwards, she petitioned the sex correction on the National Family Registration from male to female. The Supreme Court rejected it for these reasons. First, the Civil Law only permits marriage between different sex, even though there is no way for the government to intervene in identifying a person's sexual orientation who lives his or her social lives as a different sex after a sex reassignment surgery with others' recognitions. The government's permission on the sexual correction of the transsexuals especially during their marriage can be regarded as the acceptance of the same-sex marriage. It may cause an unconstitutional influence on the sociolegal status of the spouse. Furthermore, when a transsexual has children underage, the government should consider the welfare of minors when judging the sex of the parents. If the correction of sex is permitted, minors are supposed to face a psychological disorientation, and may undergo possible social discriminations and prejudices during their sensitive juvenile period because their parents' sex on the registration shows the marriage between same sex. The writer evaluates this Supreme Court decision introducing the theories on the sexual transformation and the correction of sex. Considering recent trends of other courts and legislations, she suggests an unbiased legislation policy for transsexuals. Marriage status and possession of a minor child should not be the decisive standard for a sex correction. First, this study suggests that the legal provides could be that if someone in marriage is to request the correction of sex, they should file a divorce or be in divorce. Second, minors do not suffer from a mental disorientation because of the display of their parent's transformed sex. Under the current system, minors cannot approach the legal registration of sex, so they will not have the related information. Moreover, their mental hurts that come from the changes of the parents' appearance will be much bigger than those from information regarding sex change on the registration. We have to understand that minors will not suffer from the mental confusion if they are accustomed to the sexually changed parents. Thus, the impact on a child from the parent's sex change on the registration may not be so serious. For an idea of a statutory change, the writer suggests the removal of the sex registration. If we remove the sex/gender blank from the National Family Registration form, the history of the sex correction will not be uncovered.