한국에서 차별금지법 제정에 있어서 성적지향을 둘러싼 갈등과 전망

Abstract

International human-rights institutions have dealt with anti-discrimination as an important agenda to realize equality and prevent human-rights violation, and the obligation of comprehensive prohibition on discrimination has become a universal duty of advanced countries in the area of human rights. In particular, most of advanced countries in human rights adopt the anti-discrimination law which prohibits all sorts of discrimination. One of issues which are placed in the center of most fierce controversies and conflicts on the enactment of domestic anti-discrimination law in Korea is the prohibition on sex orientation-based discrimination. Sex orientation has been eliminated from the government bill for anti-discrimination law, and the standpoint that although sex orientation is not stipulated in the anti-discrimination law, discrimination can be prohibited for it is an exemplary rule, can cause the problem of neglecting and allowing discrimination in the practical application of the law. In other words, discrimination against sexual minorities who have been customarily and historically discriminated for a long time has become a daily routine and caged them in a closet. Therefore, the legislation of anti-discrimination law for sexual minorities whose sex orientation and sexual identity are different can be a starting point to protect their human rights and realize practical equality. The anti-discrimination law is not yet enacted in Korea for the present, but the National Human Rights Commission Act and so on prescribe prohibition on discrimination. However, the prohibition on discrimination by the National Human Rights Commission Act and so on has no legal binding force in reality, and only takes corrective action through advice, thus resulting in no practically effective prohibition on discrimination. On this account, the legislation of law that has a legal binding force in reality and with which discrimination can be effectively eliminated is urgent, and this law must stipulate sex orientation as well as main causes of prohibition on discrimination. In order for the anti-discrimination law to be enacted as a basic law for equal rights, it must be legislated as a comprehensive anti-discrimination law, and such a standpoint that the National Human Rights Commission Act and so on can exemplify the causes of prohibition on discrimination seems to overlook practical difficulties in the application of law. In this regard, the discrimination of which history is long and which is routinized in everyday life, such as sex orientation, must be stipulated with the reasons of prohibition on discrimination. In addition, in order to realize practical rights to equality, it is necessary to have the court take positive action to stop and correct discrimination, and a means to stop and correct discrimination practically must be established by stipulating the provision of punitive damage reimbursement. The legislation of anti-discrimination law encounters with the conflicts and resistance on sex orientation for the present and its enactment is uncertain. Religious standpoints of sex orientation can be different, but it is impossible to force others to adopt their religious beliefs. Furthermore, the attempt of changing the attitudes towards sex orientation through education can be discriminative behavior and violence against sexual minorities. Sexual minorities also have rights not to be discriminated. The standpoint of National Human Rights Commission for homosexuality is that it is only a sexual orientation an individual can make a choice freely. Now, it is time to realize practical equality for sexual minorities, and remove such discriminative activities against them as harassment and hatred, thus making them carry on normal life. In addition, it is necessary to guarantee sexual minorities equal rights to legislation as people of Korea, and rights to pursuit of human dignity, value and happiness must be realized for them. In order for the principle of prohibition on discrimination, which is guaranteed by constitutional law, to be realized practically, the anti-discrimination law which stipulates sex orientation must be legislated.