The Dynamics of Debate over Anti-Discrimination Act in Korea

The Dynamics of Debate over Anti-Discrimination Act in Korea

 

Abstract

Growing interests in equality and fairness led to public attention towards the bill of Anti-Discrimination Act of 2020 proposed by the Justice Party. Both the proposition and opposition to the bill fiercely put forward their arguments. The paper examined the dynamics of the debate and concluded that the most controversial issues included 1) the need for a ‘comprehensive’ Anti-Discrimination Act, 2) certain protected characteristics, and 3) the clause on the transfer of the burden of proof. On each issue, the proposition and opposition did not get along and various dynamics intermingled. After observation, it was shown that Korea’s major social issues such as the conflict between the Christian community and the sexual minorities, the rising importance of the ‘discourse of fairness’ among the MZ generation, and the debate on equality and reverse discrimination were included in this debate. Therefore, the paper suggests that the debate on the Anti-Discrimination Act may be the starting point where all social issues can come upfront to be freely discussed.

 

I. Introduction

Since 2007, when the first bill of the Anti-Discrimination Act was proposed in Korea, it has been actively debated. With strong objections first from the business world, then the religious world, attempts to enact the Act failed. However, with raised awareness on human rights and stronger voices of the minorities, another bill was put forward by minor opposition Justice Party in June 2020. Although a year has passed since its proposition, it is still pending at the Legislation and Judiciary Committee due to strong opposition. Yet, more than 100,000 people signed the online petition calling for Anti-Discrimination Legislation last June, showing rising support for the Act. In addition, the ruling Democratic Party, previously passive towards the Anti-Discrimination Act, also proposed an Equality Act last June 16th.[1]

Although the debate has been going on for over fourteen years, wasteful disputes frequently interrupted constructive proposals and criticisms. With both sides taking a strong stand, the Act has not been properly discussed in the National Assembly. Therefore, this paper aims to examine the debate over the Anti-Discrimination legislation and then find out the key issues that can come up during the discussion in the National Assembly, if there can be one. To that end, the paper will analyze both the proposition and the opposition side of the Act. The paper will mainly focus on the bill proposed by the Justice Party (henceforth Justice Party bill). This is because it is most noteworthy and has only minor differences from the bill of Equality Act.

 

II. Introduction to the Justice Party Bill

The Justice Party bill was put forward on June 29, 2020. The purpose of the bill is to prevent and prohibit discrimination without a just cause, to implement the constitutional ideology of equality, and to seek effective relief of discrimination towards the socially disadvantaged. The protected characteristics include gender, disability, age, language, country of origin, ethnicity, race, nationality, skin color, physical conditions, marriage status, pregnancy or childbirth, form of family, religion, ideological or political opinion, criminal record of which the punishment is invalidated, sexual orientation, gender identity, academic background, employment type, medical history, social status or any other reason.[2] The bill will act as a comprehensive Anti-Discrimination Act if enacted in that it covers various protected characteristics and opens up the possibility of adding more by the term ‘or any other reason,’.

The bill prohibits direct discrimination, indirect discrimination, indication of discrimination or act of causing physical and mental distress towards a specific individual or group, and advertisement that promotes discrimination. Victims of discrimination can file a petition with the National Human Rights Commission (NHRC) and the NHRC will recommend correction. If the recommendation is not carried out without justification, the NHRC can issue a corrective order and if the order is disobeyed, the NHRC can impose an enforcement penalty. In addition, other remedies include litigation support, punitive damages, and shifting of the burden of proof.

 

III. Debate over the Anti-Discrimination Act

1. The Need for a Comprehensive Anti-Discrimination Act

The Justice Party bill proposed to enact a comprehensive Anti-Discrimination Act. Anti-Discrimination legislations already exist in certain areas in Korea. For example, ‘the Act on the Prohibition of Discrimination against the Disabled,’ ‘the Act on the Prohibition of Age Discrimination in Employment and Elderly Employment Promotion,’ and ‘the Act on the Protection of Fixed Term, Part-time and Temporary Agency Workers’ respectively regulate discrimination against the disabled, the elderly, and workers.[3] Some question the necessity of a comprehensive Anti-Discrimination Act when individual Anti-Discrimination legislations preexist.

The opposition maintains that each individual law provides appropriate measures for each protected characteristic. They note that the individual laws take under consideration the level of public consensus on the gravity and seriousness of specific types of discrimination and provide different types of sanctions against them. On the other hand, they criticize the comprehensive law for setting fixed sanctions for distinguished types of discriminatory acts, regardless of underlying differences.

Some go on to argue that there is a hidden intention behind the comprehensive bill. This criticism often comes from the conservative Christian community. They question if all the protected characteristics share equal amount of significance. Since they believe that sexual orientation and gender identity do not share the same amount of significance as other protected characteristics such as disability or gender, they claim that the comprehensive bill cleverly treats all the characteristics equally with an intention to strengthen the legal status of LGBTI.[4]

The Christian community is not the only opposing side in this debate. Even those who agree with the fundamental purpose of the Anti-Discrimination legislation bring up a similar question. Kim and Lee examined Anti-Discrimination Acts in different countries. They concluded that individual special laws are preferable over the legislation of a new general law. They also suggested that if there should be a comprehensive law, its purpose should be limited to providing a legal concept. This is because they believe that it is more effective when individual laws deal with specific discriminatory acts and sanctions. Also, they express concern that top-down legislation without public consensus would go against public opinions on law.[5]

On the other hand, supporters of the bill stress the necessity of a comprehensive Anti-Discrimination Act. They tend to emphasize the complexity of discriminatory acts in real life. Rep. Jang Hye Young of the Justice Party stated that “individual laws contain only a small fraction of the 23 reasons that the bill contains and the limits of individual Anti-Discrimination laws are clearly evident when a combination of different discriminations occur in a person’s life.” Jang gives an example of a female immigrant with a disability. If she faces discrimination, it is difficult to specify the reason behind it.[6] Supporters of the bill claim that a comprehensive bill would address the complex issue of discrimination integrally and entirely in such cases.[7]

 

2. Protected Characteristics

The most controversial issue regarding the bill is the list of protected characteristics. The Justice Party bill suggests a total of 23 protected characteristics and uses the term ‘or any other reason’ to include possible characteristics. Among the 23, academic background, sexual orientation, and gender identity are the most controversial.

 

(1) Academic background

Conflicts regarding academic background escalated when the Ministry of Education put forward an opinion to exclude ‘academic background’ from the protected characteristics. The Ministry stated that “(Education) tends to be seen as a justifiable reason for discrimination in that the degree of achievement depends considerably on individual choices and efforts; rather than nature, such as gender, age, nationality, and disability.”[8] A few days after the opinion was put forward, the Minister of Education clarified that the Ministry does agree with the purpose of the bill that unreasonable discrimination based on academic background should be prohibited.[9] However, there is still ongoing debate on the issue.

There is an interesting stance to this dispute, namely the Millenials and Generation Z, often called ‘MZ generation’. Since they are receptive to new ideas and sensitive to equality issues, it was expected that they would be the main force behind the success of the bill. However, in terms of ‘academic background,’ they turned out to be part of the opposition. Some view this to be a result of ‘the discourse of fairness,’ which the MZ generation values nowadays. The discourse is centered on the concept of meritocracy and the belief that examinations are one of the fairest methods to evaluate one’s capabilities. Therefore, the generation opposing the inclusion of ‘academic background’ claim that academic achievement is a just cause for discrimination.[10]

Meanwhile, experts criticize this view, pointing out that examination is not the only standard for evaluating one’s capabilities. Hong Seong Soo, an Associate Professor of Law at Sookmyung Women’s University, stated that “It’s not that there should be no distinction based upon academic background, but that we should caution people to reconsider if ‘it is a job that only college graduates can perform’.”[11]

 

(2) Sexual orientation, gender identity

Sexual orientation and gender identity are major reasons why the Christian community is strongly against the bill. Since the bill intends to prohibit discrimination ‘without a just cause,’ there is an ongoing debate over whether sexual orientation and gender identity are just causes for discrimination. The opposition firmly maintains that if the bill is to be enacted, homosexuality will spread and bring about social harm. Since homosexuality is regarded as a sin in Christian perspective, they believe that it should be cured. This perspective is also shared by non-Christians who oppose to the bill. On the 22nd of June 2021, an online petition against the Equality Act gained over 100,000 signatures. Part of the petition stated that “Equality Act sanctions opposition to homosexuality, gender change, and third sex”, showing that the public share the concern.[12]

On the other hand, those who support the bill claim that it is unconstitutional to impose religious beliefs on others and that it is clear violence to unilaterally condemn the activities of other people as a sin.[13]

 

3. Shift of the Burden of Proof

Concerns also come from the legal circles, regarding the shifting of the burden of proof. Article 52 of the Justice Party bill prescribes that if the victim claims that there had been an act of discrimination, the other party should prove that there had been no such act. In other words, one should prove that it was not discrimination based on gender, or that there had been a justifiable reason. Meanwhile, the general rule of civil law requires victims to bear the burden of proof regarding tort liabilities. Although the shift in the burden of proof is exceptionally applied to medical accidents and environmental events, a question is raised whether such an exception should be permitted for the Anti-Discrimination Act mostly because it will act as a general law.[14]

 

V. Conclusion

The controversy over the Anti-Discrimination Act deals with major issues in Korean society. Conflict between the Christian community and the sexual minorities, rising importance of the ‘discourse of fairness’ among the MZ generation, and the debate on equality and reverse discrimination are all social issues that reflect our society today. Not only does the debate split into two sides, but it also carries various dynamics. While examining the stances of both sides, it could be observed that there are people who cannot be classified as opposition nor proposition: those that agree to the purpose of the Anti-Discrimination bill while being concerned about the effectiveness of the detailed clause, or those that agree with certain protected characteristics but oppose to others.

It is important to keep the debate in the right direction. Until now, the debate tended to revolve around biases and disruptive disputes. various dynamics were observed, but both sides did not go further to a constructive discussion. However, we should not rule out the possibility of the enacting of the bill. There are still a lot of detailed clauses that need further discussion, including the transfer of the burden of proof. Therefore, it is essential to have a constructive debate on this issue in the National Assembly. Although the bill is still pending at the Legislation and Judiciary Committee, we should come to a social consensus before a proper discussion. If appropriately dealt with, the debate may be the starting point to a society where all social issues can come to the fore and be freely discussed.

 

References

Ahn, Jae Myong. “차별금지법·평등법 추진, 법조계 ‘입증책임 전환 등 우려’.” Law Times, July 2021, https://www.lawtimes.co.kr/Legal-News/Legal-News-View?serial=171286

Ahn, Jean. “포괄적 차별금지법의 입법쟁점에 대한 일고찰.” Chonnam Law Review Vol. 36 No.1 (2018): 537-589.

Eum, Sun-pil. “포괄적 차별금지법에 대한 반론.” Church and Law Vol.7 No.1 (2020): 106-155.

Han, Ji Young. “차별금지법 제정을 둘러싼 쟁점의 비판적 검토.” Ewha Journal of Gender and Law Vol.3 No.1 (2011): 89-122, 91.

Han, Ye na. Lee, Young Kwan. Kim, Seung Hyun. “’23개 사유’가 뭐길래… 왜 차별금지법에 나라가 들썩이나” Chosun Ilbo, July 2021, https://www.chosun.com/national/national_general/2021/07/03/GNHCDU5DQFBVPFILMQEUDW7FYA/

Jang, Hye Young, et al. “차별금지법안 (장혜영의원 대표발의)”

Kang, Joo Hee. “차별금지법까지 번진 ‘공정성 담론’…교육부, 금지 항목서 ‘학력 빼자’ 제안 논란.” The Asia Business Daily, June 2021, https://view.asiae.co.kr/article/2021062816315848286

Kim, Dong Ho. “’민주당표 차별금지법’에 반대 맞불청원…10만명 동의 채워.” Yonhap News, June 2021, https://www.yna.co.kr/view/AKR20210622120700001

Kim, Jong-Heon. Lee, Seung-Gil. “차별금지법안의 쟁점과 개선방안.” Studies of Social Security Law Vol.42 (2020): 383-444.

Lee, Hwa Jean. “차별하면 형사처벌 받나요?…‘차별금지법’ Q&A.” KBS News, June 2021, https://news.kbs.co.kr/news/view.do?ncd=5221555&ref=A

Lee, Ji Hyun. “한국에서 차별금지법 제정에 있어서 성적지향을 둘러싼 갈등과 전망.” Chung And Law Review Vol.16 No.3 (2014): 107-139.

Lee, Seong Hee. “’학력’은 차별요소인가, 아닌가” The Kyunghyang Shinmun, June 2021, https://www.khan.co.kr/national/education/article/202106271829001#csidxed94de812e465fb963961d77c2bd49b 

Nam, Yoon Seo. “’석사 학위 이상’ 채용이 차별? 교육부도 헷갈리는 차별금지.” Korea Joong Ang Daily, July 2021, https://news.joins.com/article/24107850

 

[1] Han, Yena. Lee, Young Kwan. Kim, Seung Hyun. “’23개 사유’가 뭐길래… 왜 차별금지법에 나라가 들썩이나” Chosun Ilbo, July 2021, https://www.chosun.com/national/national_general/2021/07/03/GNHCDU5DQFBVPFILMQEUDW7FYA/

[2] Jang, Hye Young, et al. “차별금지법안 (장혜영의원 대표발의)”

[3] Ahn, Jean. “포괄적 차별금지법의 입법쟁점에 대한 일고찰.” Chonnam Law Review Vol. 36 No.1 (2018): 537-589.

[4] Eum, Sun-pil. “포괄적 차별금지법에 대한 반론.” Church and Law Vol.7 No.1 (2020): 106-155.

[5] Kim, Jong-Heon. Lee, Seung-Gil. “차별금지법안의 쟁점과 개선방안.” Studies of Social Security Law Vol.42 (2020): 383-444.

[6] Lee, Hwa Jean. “차별하면 형사처벌 받나요?…‘차별금지법’ Q&A.” KBS News, June 2021, https://news.kbs.co.kr/news/view.do?ncd=5221555&ref=A

[7] Han, Ji Young. “차별금지법 제정을 둘러싼 쟁점의 비판적 검토.” Ewha Journal of Gender and Law Vol.3 No.1 (2011): 89-122, 91.

[8] Lee, Seong Hee. “’학력’은 차별요소인가, 아닌가” The Kyunghyang Shinmun, June 2021, https://www.khan.co.kr/national/education/article/202106271829001#csidxed94de812e465fb963961d77c2bd49b 

[9] Nam, Yoon Seo. “’석사 학위 이상’ 채용이 차별? 교육부도 헷갈리는 차별금지.” Korea Joong Ang Daily, July 2021, https://news.joins.com/article/24107850

[10] Kang, Joo Hee. “차별금지법까지 번진 ‘공정성 담론’…교육부, 금지 항목서 ‘학력 빼자’ 제안 논란.” The Asia Business Daily, June 2021, https://view.asiae.co.kr/article/2021062816315848286

[11] op.cit., Lee, Seong Hee.

[12] Kim, Dong Ho. “’민주당표 차별금지법’에 반대 맞불청원…10만명 동의 채워.” Yonhap News, June 2021, https://www.yna.co.kr/view/AKR20210622120700001

[13] Lee, Ji Hyun. “한국에서 차별금지법 제정에 있어서 성적지향을 둘러싼 갈등과 전망.” Chung And Law Review Vol.16 No.3 (2014): 107-139.

[14] Ahn, Jae Myong. “차별금지법·평등법 추진, 법조계 ‘입증책임 전환 등 우려’.” Law Times, July 2021, https://www.lawtimes.co.kr/Legal-News/Legal-News-View?serial=171286

Posted in Autumn 2021.