[1] Whether rectification of gender shall be permitted in cases where a transsexual person is married or has a minor child (negative)

[2] The case affirming the judgment below which rejected Gap's rectification of gender on the family relations register in a case where Gap had married with Eul and had a minor child Byung, who received sex conversion surgery and applied for rectification of gender on the family relations register, and Gap's rectification of gender is not allowed

[1] [Majority Opinion] If a sex change had already been made to the opposite sex to the sex at the time of birth through a sex change surgery, and is recognized as having already been transferred from a medical point of view, there is no way to involve in the law in personal and social activities of the transferred sex. However, in cases where a transsexual person is married or has a minor child, the rectification of the gender recorded in the family relations register cannot be permitted to cause difficulties in legal status of the spouse or minor child and social perception thereof. Thus, the rectification of gender of a transsexual person who currently is married or has a minor child is not allowed.

[Dissenting Opinion by Justice Yang Chang-soo and Justice Lee In-bok] The circumstance of having a minor child is sufficient when the court determines whether to grant permission for rectification of gender according to specific cases, including the age of the child, whether the child was enrolled in school, whether the parent's understanding or consent is given to the rectification of gender, the form and degree of protection, education, support for the child, and all other circumstances including family environment, and whether the transsexual person can be perceived as a person with the sex converted from the socially accepted social norms. The circumstance of having a minor child should not be set as an independent ground for denial of rectification of gender.

[Dissenting Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Jeon Soo-ahn] Whether to allow rectification of gender for a transsexual who has a minor child falls under the issue of legislative policy, and furthermore, where a natural family relationship has been formed based on the parent’s converted sex, not allowing rectification of gender may hinder the welfare of a minor rather than hindering the welfare of the minor. Meanwhile, we cannot agree with the Majority Opinion that the current circumstance of marriage does not restrict rectification of gender on the ground of the past marriage does not constitute an independent ground for denial of rectification of gender. Even if a transsexual is in a marital relationship, it is sufficient to determine whether rectification of gender on the family relations register might cause confusion in the status relationship at the time of filing an application for rectification of gender, by comprehensively taking into account all the circumstances such as whether and why the marital relationship is actually resolved, the period after the actual resolution of marriage relationship, and the possibility of de facto dissolution of marriage relationship.

[2] In a case where Gap, who is registered as a male on the family relations register, has married with Eul and has a minor sick child, but has been treated several times due to a serious gender identity disorder, has undergone a sex change surgery, and applied for rectification of gender on the family relations register, the case affirming the judgment below which rejected correction of gender of a transsexual person Gap, on the ground that, in the case where a transsexual person is married or has a minor child, correction of the gender recorded on the family relations register cannot be allowed to cause difficulties in his spouse or minor child's legal status and social awareness about him/her, and it is not allowed to correct the gender of a transsexual person Gap who currently is married or has a minor child, on the grounds that it is not allowed

[1] Articles 10 and 36(1) of the Constitution of the Republic of Korea; Articles 909(1), 912, and 913 of the Civil Act; Article 104 of the Act on the Registration, etc. of Family Relationship / [2] Articles 10 and 36(1) of the Constitution of the Republic of Korea; Articles 909(1), 912, and 913 of the Civil Act; Article 104 of the Act on the Registration, etc. of Family Relationship

[1] Supreme Court en banc Order 2004S42 dated June 22, 2006 (Gong2006Ha, 1341)

Applicant

Ulsan District Court Order 2009B1 dated September 15, 2009

The reappeal is dismissed.

The grounds of reappeal are examined.

1. Determination of the gender of a transsexual and correction of the gender on the family relations register for a transsexual person

A. The current legal system, including the Act on the Registration, etc. of Family Relationship, is based on the premise that all persons belong to one of men or women, but does not have any separate provision concerning the criteria for determining gender, that is, the distinction between men and women.

B. The previous decisions have been made in accordance with the biological factors, such as a person’s sexual chronology and subsequent sexual organs. However, in recent years, not only the biological factors but also the sense of belonging to men or women who are perceived by an individual as being male or female, and the aspect of performing the sexual roles, such as the behavior, attitude, and character characteristics, which are socially recognized as appropriate, became recognized as one of the factors determining a person’s sexuality.

C. In the case of a person with a sex transition certificate, one of men or women has a sex color and forms and develops a sex instrument consistent with that color body. However, at the time of birth, it is not possible to recognize that the person's sex is still in the mental and social sense, so legal gender shall be assessed according to the biological physical sex.

D. However, consistently in the growth process after the birth, while suffering the opposite sense of inconsistency with the biological sex at the time of birth and suffering the opposite sense of belonging to the opposite sex, the role of opposite sex as well as the physical appearance of the opposite sex may vary in a certain case from a person who has been sexually formed in the opposite sex. In particular, even after the diagnosis of the sex transition certificate, the above symptoms still have been cured, and the mental and social adaptation to the opposite sex was made without recovering the above symptoms for a considerable period of time, and the physical sex including the external sex organs, etc., upon receiving the sex transition operation in accordance with general medical standards, have changed the opposite sex with the opposite sex, as well as with the awareness of the converted sex identity, which has given public notice of the opposite sex identity, if the appearance of the opposite sex, including the two sex organs, etc., and both of the opposite sex areas and occupation, etc., have been changed in the sex of a transsexual person as well as with the changed sex being recognized as a transsexual person in light of social norms and other social norms.

E. In addition, in the case of a transsexual, the legally assessed gender changes at the time of birth, and the entry of the family relation register is prohibited from disclosing the current true status relationship. Thus, it is reasonable to allow rectification in accordance with the procedure of Article 104 of the Act on the Registration, etc. of Family Relationship, inasmuch as such permission for rectification of the family relation register is determined to confirm the current true gender that has been legally assessed according to the sex transformation, and thus, the effect of the correction permission decision or the correction of the gender column on the family relation register based thereon should be interpreted as not affecting the existing status relationship and the rights and obligations.

The Supreme Court has already declared these legal principles in the en banc Order 2004S42 dated June 22, 2006.

2. Whether rectification of gender is permitted in cases of a married child or a minor child;

A. Even if the converted gender in the course of physical characteristics or social activities due to sex conversion surgery, etc. is recognized as the gender of that person, in order to permit rectification of the gender indication on the family relations register, various circumstances such as where changes in the status relationship with other persons are caused or negative impacts are not adversely affected to society are considered, and thus, rectification of gender should not be allowed in extenuating circumstances, such as where a significant change in the status relationship with a spouse or child is caused or where a significant negative impact on society is significantly affected by rectification of gender.

B. When a transsexual is married

Article 36(1) of the Constitution declares, “Marriage and family life shall be established and maintained on the basis of individual dignity and gender equality, and the State shall ensure that they will be the same.” Since a false marriage is established by physical and mental combination between men and women, our Civil Act does not allow only the same-sex marriage and the same-sex marriage. However, if allowing rectification of gender to a transsexual currently in a marriage, it would be difficult to recognize same-sex marriage by withdrawing the appearance of the same-sex marriage that is not permitted by the Act, which would result in significant impact on the legal and social status of the other spouse, such as the other spouse’s status relationship. Accordingly, a transsexual currently in a marriage cannot be evaluated as a person’s sex, and as a result, rectification of gender in the family relations register is not allowed. However, even if a transsexual currently in a marriage is not in the past, there is no reason to deny rectification of gender as above, even if there is a fact of marriage in the past, or as it is unlikely to adversely affect society.

C. When a transsexual person has a minor child

The Civil Act provides that a parent shall be a person with parental authority over a minor child (Article 909(1)), a person with parental authority shall have the right to protect and educate a minor child (Article 913), and a person with parental authority shall give priority to the welfare of a minor child when exercising the parental authority (Article 912). If a transsexual child has a minor child, priority should be given to the welfare of the minor child in legally assessing the gender of the person with parental authority. However, if a transsexual child is permitted to correct the gender despite the minor child, the situation where the father or mother, who is a minor, can unilaterally change from the male to the female to the female, can easily be exposed to mental confusion and shock. Considering that it is difficult to allow rectification of the gender, it is difficult to view that the child’s sex recorded in the family relation register cannot be seen as being a “child or his/her family relation register,” and that there is no particular reason to view that the sex of the person with parental authority cannot be seen as an “child or his/her family relation register,” and thus, it cannot be seen as an “child or family relation.”

D. Sub-committee

If a transsexual person is married or has a minor child, it cannot be permitted to correct the gender recorded in the family relations register even if it causes difficulties in legal status of his/her spouse or minor child and social recognition thereof. Thus, the rectification of the gender of a transsexual person who currently is married or has a minor child is not allowed. However, the rectification of the gender of a transsexual person who is currently married or has a minor child is not allowed.

3. The court below affirmed the first instance court's decision on October 21, 199, on the ground that there is room to see the applicant as a female, considering the applicant's external sexual organ and physical appearance of a female who had been registered as a male on the family relations register, but she has seen female inclinations, such as the applicant enjoying female uniforms from the school flasing time to the female, and the female's flasing, and the applicant has been treated several times, and the mental disorder has been given treatment on August 8, 2006, and has been continuously administered by the flasing country, and there is room to see the applicant as a female, but the applicant has been married on October 21, 192, and the applicant has been born on November 8, 1994 between the denial and the rejection at the time, to correct the applicant's gender on the family relations register to a female in relation to his status relationship.

In light of the above legal principles, the decision of the court below as if the rectification of gender was rejected based on the past marriage history is erroneous, but the decision of the court of first instance which rejected the request for rectification of gender by the applicant with a minor child is just in its conclusion and there is no error as alleged in the grounds for reappeal.

4. Conclusion

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Jeon Soo-ahn, as to whether the circumstance of having a minor child is considered as an independent passive requirement for rectification of gender, and whether the circumstance of having a minor child is considered as an independent passive requirement for rectification of gender.

5. Dissenting Opinion by Justice Yang Chang-soo and Justice Lee In-bok

A. The role of the law is to protect the freedom and rights of the people. Accordingly, the legal protection of the new sex is necessary for transsexuals who are minority in this society, and each individual legally recognizes the sex they want and living on the basis of this, has an essential meaning in pursuing their happiness. In this regard, the Supreme Court en banc Order 2004S42 dated June 22, 2006 is legally approved the rectification of their gender.

In addition, given that a person’s sexual identity has a fundamental nature as a decision on his/her own form of existence or the basic form of life that belongs to his/her individual territory, this ought to be legally respected, but on the other hand, as long as transsexuals also live in the community as a member of the society, the social meaning of his/her act cannot be entirely expressed. As stated in the above Supreme Court en banc Decision, we accept that, in determining whether to permit rectification of gender recorded in the family relations register within the scope of rectification of gender, it is sufficiently acceptable to consider the impact of rectification of gender on the other person’s status relationship or the social consequences therefrom.

However, the decision on sexual identity or sexual orientations constitute an individual’s existence itself, which is not legally recognized is nothing more than the most fundamental right to maintain human dignity and pursue happiness according to their chosen values. Therefore, a transsexual person need to have an extremely prudent attitude in restricting the rectification of gender in society on the grounds of social perception, common sense, etc. Therefore, a transsexual person’s rectification of gender is based on his/her intent to ensure that he/she cannot be supported and consented from liquor in our society, and is based on the pursuit of happiness that can be enjoyed as human beings in this society. Accordingly, in this context, the legal meaning of a transsexual person’s rectification of gender should be clearly avoided. In particular, in determining whether to permit rectification of gender recorded in the family relations register, a court should consistently establish certain criteria and process them accordingly, thereby infringing on the legal stability and stability of a transsexual person’s right to pursue happiness, and thus, cannot be considered as one of the essential elements of a transsexual person’s right to pursue happiness.

B. The conversion of gender is a public confirmation through a trial on whether or not the court would allow rectification of gender in the family relations register. The determination of “sex” is not a mere confirmation of facts, but a legal judgment on which person’s sex falls under anywhere in light of the content and standard of judgment of the legal concept of “sex”.

If a transsexual’s minor child is likely to suffer harsh social discrimination and prejudice due to the sex change of his/her father or mother, it is sufficient for the court to consider such circumstance as one of the important elements in deciding whether to permit the rectification of gender, and the situation where a minor child has a minor child does not naturally establish an absolute passive requirement that does not allow the rectification of gender. In short, this is a specific balance between the transsexual’s interest due to the legal approval for the sex change and the disadvantage of the minor child, and it does not need to be uniformly decided.

As stated in the Dissenting Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Jeon Soo-ahn, a minor child of a transsexual can always be presented to the case where he or she takes a transsexual as his or her child, like before the sex change. In such a case, the benefit of a transsexual due to the legal approval for sex change is significantly larger than the disadvantage of a minor child.

In addition, in the event that a transsexual person suffers from confusion in sexual identity and becomes an obvious transsexual after having his/her child, forcing him/her to live his/her life based on the previous sex until he/she reaches the age of majority by reason of having a minor child at that time cannot be deemed to have any ground to justify such discrimination compared with a transsexual person who has no such limitation.

When allowing the rectification of gender, the Majority Opinion states that “If a person’s gender recorded in the “ father” column of the family relation certificate is indicated as “man” or “man” as “man (man)” and that the appearance of same-sex marriage will inevitably disappear. However, the father or mother’s entry in the family relation certificate refers only to a person whose father or mother is a father or mother of a person, and does not mean that there is a matrimonial relationship between him or her. On the other hand, since the same-sex marriage is not allowed at present is known to anyone, the “the appearance of same-sex marriage” is not likely to be established through the entry in the family relation register. However, the entry in the above family relation certificate is merely the fact that the father or mother has changed his or her sex.

Ultimately, it is sufficient for the court to decide whether to grant permission for rectification of gender according to specific cases, and the circumstance that a person has a minor child does not constitute an independent ground for denial of rectification of gender, in addition to various elements to determine whether a transsexual person can be perceived as a person with the sex converted from social norms, together with the age of the child and whether to attend school, whether the parent's understanding or consent to rectification of gender is given, the form and degree of protection, culture, and support for the child, and other various circumstances such as family environment.

On the other hand, this issue may not be discussed at the same level with a person who is married and a person who has a minor child. The recognition of a sex conversion to a person who is in a marriage is to recognize same-sex marriage as stated in the Majority Opinion, which leads to a shaking of the foundation of the marriage system. The issue of how to change the marriage system so that it can be included in this matter is separate from the issue of how to change the marriage system, and it cannot be said that the current effective law is denied.

For example in foreign countries, the circumstance that a minor has a minor is not treated as an independent passive requirement for rectification of gender, while it is a general tendency at the present point of time to not allow rectification of gender in the case of marriage.

According to the above legal principles, although the circumstance of having a minor child is nothing more than an individual element of consideration in whether to permit rectification of gender, the court below erred by misapprehending the legal principles on rectification of gender, which affected the conclusion of the judgment by maintaining the decision of the court of the first instance that dismissed the application for rectification of gender of this case without examining the remaining overall circumstances solely on the ground that the circumstance of having a minor child is considered as an independent passive element of rectification of gender, and the existence of such circumstance alone. Therefore, the judgment of the court below should be reversed.

6. Dissenting Opinion by Justice Park Si-hwan, Justice Kim Ji-hyung, and Justice Jeon Soo-ahn

The Majority Opinion states that, as a transsexual person’s entry in the family relation register is prohibited from disclosing the current true status relationship, rectification of the gender recorded in the current family relation register should be permitted to conform to the current changed gender relationship, and such permission for rectification of the family relation register is a decision to confirm the current true gender that is legally newly assessed according to the sex conversion, but the rectification of the family relation register requires that there should be no circumstances such as serious changes in the current status relationship or significant negative impacts on the society due to the denial of the rectification of the gender, and that there should be no minor child. However, we cannot agree with the Majority for the following reasons.

A. The full text of the Constitution and Article 10 of the Constitution declare that all citizens have the right to express human dignity and value, the right to pursue happiness, and the ability of citizens to the highest. The disclosure of their gender by each citizen to conform to the current biological and legal gender is an essential element in realizing such fundamental rights. In the case of a transsexual, it is not likely that the legal gender according to his/her gender identity is confirmed or verified, and it does not directly harm other members of society. Rather, if a transsexual is found to have the true gender identified by his/her gender identity but the state of being in conflict with that registered in his/her family relation register is left alone, there is a greater possibility that confusion and mistake may occur among other members of society. Nevertheless, the Majority Opinion permits rectification of the family relation register. As a result, not only sets up a large number of members of society, but also a transsexual should have the right and value equivalent to the majority of people who have not been discriminated due to the problem of gender, and thus, it cannot be said that a transsexual has the right and value of fundamental rights.

On June 16, 2011, the UN Human Rights Council passed a resolution on sexual orientation and gender identity" at the 17th session of the 17th session of the UN Human Rights Council, and our government consented to the resolution as a member of the UN Human Rights Council. The above resolution requires that each country investigate and disclose discriminatory laws and practices with regard to sexual orientation and gender identity. The Majority Opinion’s view also runs counter to the legislation and the trend of these times requiring institutional supplementation to prohibit discrimination against the so-called sexual minoritiess, such as transsexuals and the same-sexs.

B. The majority opinion states that where a transsexual person is currently married or has a minor child, rectification of gender in the family relations register shall not be allowed, and it shall be understood as a passive requirement for permission for rectification of gender. However, this is inconsistent with the opinion expressed in the Supreme Court en banc Order 2004S42 dated June 22, 2006 cited by the majority opinion.

The supplementary opinion to the majority opinion in the above en banc decision states that whether or not to allow a transsexual person to correct the gender according to whether a transsexual person is married or his/her child is within the scope of the legislative discretion, and that the current state where there is no clear legislation on this, marriage or having a child cannot be uniformly determined as a ground for not allowing a transsexual person to correct the family register. The majority opinion explicitly states that the majority opinion does not intend to set it as a passive requirement, but it is confirmed as a true transsexual person in a true sense, and that even if a correction of the family register is made, if it can be viewed as effective only within a limited extent because it does not have a serious effect on the existing personal relationship, etc., the correction of the family register can

However, in this case, the majority opinion argues that just because a person who has a minor child is the reason for denying rectification of gender, and in particular, even if the applicant is not in a state of marriage, the reason for denying rectification of gender is that the applicant is the person who is not in a state of marriage, should be considered as a ground for denial of rectification of gender. Unlike the above en banc decision, the majority opinion should have carefully taken into account that “the transsexual person should not cause a change in the status relationship with others or not have an improper effect on society.” In accordance with the majority opinion, the opinion stated in the above en banc decision should have been changed.

C. The Majority Opinion states that when permitting rectification of gender to a transsexual who has a minor child, the appearance of the same-sex marriage must inevitably appear in the family relations register, leaving the minor be exposed to realistic social discrimination and prejudice, thereby adversely affecting the welfare of the minor child, and thus, rectification of gender should not be allowed if there is a minor child.

However, the above opinion of the majority opinion is difficult to agree with the point that allowing rectification of gender in the case of a transsexual who has a minor child falls under the issue of legislative policy, and that allowing rectification of gender in the case where a natural family relationship has been formed according to the parent's already converted sex can rather hinder the welfare of the minor.

First of all, the Japanese "Act on Special Cases concerning Gender Handling of Persons with Sexual Disabilities" stipulates that there shall not be a minor child, etc. as the requirement for rectification of gender, but in Germany and England, whether an adult or a minor child is a child is not required as the requirement for rectification of gender. Although there is no legislation yet in Korea, the rectification of gender is permitted after the Supreme Court en banc Order 2004S42 supra, and the concerns pointed out by the majority opinion in the case where a transsexual has an adult or a minor child is left is mostly a problem that can be solved by interpretation such as that the legal relationship between a transsexual and a child is not changed despite rectification of gender.

In addition, the Majority Opinion states that it would assist the welfare of a transsexual person to not allow rectification of gender in a lump sum until his/her minor child reaches the age of majority, and even if it does not allow rectification of gender of a transsexual person who has a minor child in light of our social welfare center, it is a minimum request for consideration to allow a transsexual person to have married with his/her own choice and to have a child born and to have a family.

However, it is doubtful whether allowing rectification of gender to a transsexual person is for the welfare of a minor child and a minimum request for consideration that our society may require our society, in cases where a transsexual person has already formed a real family relationship between a transsexual person and a minor child in cases where a transsexual person has given birth to a child during marriage or in a de facto marital relationship and has, on his/her own, brought up his/her child as a converted gender for a long time, or where he/she has given birth to a minor child as a father or mother without any marital relationship or has already changed sex after the adoption of a minor child or has already changed sex and has already brought up a minor child due to such changed sex without rectification of gender, if the transsexual person and a minor child have already been adopted and has already brought up his/her changed sex, the court does not allow rectification of gender to a transsexual person on the ground that he/she has a minor child. The majority opinion of the majority opinion is not different from allowing rectification of gender only in cases where he/she intends to protect the minimum fundamental right as a human being through rectification of gender, in light of the majority of the members of our society.

Therefore, the lower court erred by misapprehending the legal doctrine on the rectification of gender in maintaining the first instance court’s decision, which dismissed the application for rectification of gender without examining the aforementioned circumstances, based on its independent passive element of rectification of gender. The lower court’s order should be reversed.

D. Meanwhile, we cannot agree with the Majority Opinion that the rectification of gender is not restricted on the grounds of past marriage facts, but we cannot agree with the view that the current state of marriage is in a state of marriage as an independent passive requirement for rectification of gender.

The degree of average understanding of transsexuals in our society is increasing, and there is a change in view of them more significantly, and the negative elements of social norms also change in the changing times and changes in perceptions. Nevertheless, it is not desirable to regard the circumstance of marriage as independent and absolute passive requirements for rectification of gender.

Even if a person is married, there may be cases where rectification of gender is not likely to cause a substantial change in his/her status relationship even if rectification of gender is permitted by reason of the fact that the person is actually in a state of marriage or in a divorce lawsuit, and it is not reasonable approach to make rectification of gender impossible on the ground that there is no reason to consider other circumstances requiring rectification of gender is in a state of marriage.

Ultimately, even if a person is in a marriage, it is sufficient to determine whether the rectification of a gender in the family relation register might cause confusion in the family relation register, by comprehensively taking into account all the circumstances such as whether the marriage relation was actually resolved at the time of applying for rectification of a gender, the reason therefor, the period when the marriage relation was actually resolved, and the possibility of the restoration of the marriage relation actually dissolved.

As the applicant of this case is not in a state of marriage, it does not affect the conclusion of this case even according to the majority opinion, but it is different from the majority opinion that regards that the applicant is not in a state of marriage as an independent passive requirement for rectification of gender, and therefore, I also point out

Chief Justice Park Si-hwan (Presiding Justice)