Sex change

Sex change (성전환/性轉換) refers to the court ruling that allows the gender on the public documents including the resident registration number to be changed from male to female, and vice versa.

Regarding the sex change surgery, see sex reassignment surgery (SRS).

Key words
sex change, transgender, family registry, resident registration number

Background
Until recently, transsexuals have troubles with their resident registration cards. While the first group of the resident registration number means the birthday (yy/mm/dd), the following seven digits denote the sex and residential information of the holder. So it is troublesome to hold a card which shows a different sexual identity from his/her appearance.

Some transsexuals filed a lawsuit with the court to change the sex digit, but only a few succeeded. Until June 2006, when the Supreme Court approved the change of sex in the family census registry, judges would not have allowed such change.

Supreme Court 2006 case
In 2006, the Supreme Court Full Bench allowed the sex change for the first time.

Traditionally the gender has been decided by the sex chromosome and genital characteristics. These days other factors such as awareness of his/her own sexual identification, socially approved action, attitude, propensity and other sexual role as psychological and social factors may decide the gender. Therefore, psychological and social factors as well as biological factors shall be taken into consideration to decide the gender of a person.

Summary of Decision
In the past, a person's gender was determined by the biological factors such as the sex chromosomes and the entailing reproductive and sexual organs. But recently, not only the biological factors but also the psychological and social factors, in other words the individual's own sense of belonging to male or female and the aspect of playing his or her sexual roles which are accepted by the society as matching with his or her gender, including the behaviors, attitudes and characteristic traits, etc, have become recognized as one of the factors that determine a person's gender and thus, a determination of a person’s gender should be made after a comprehensive consideration of the biological, psychological and social factors.

The legal gender of a transsexual, at the time of birth, should be evaluated by the biological gender characteristics in light of ordinary social norms, because even a transsexual does have either male or female sex chromosomes and is born with the reproductive and sexual organs that have been formed and developed in accordance with the sex chromosomes, while his or her psychological and social gender cannot be recognized yet. But a transsexual should have the opportunity to be recognized to have the physically changed sex in light of the ordinary social norm according to the criteria for the evaluation of gender, if he or she persistently has the feeling of discomfort and inappropriateness about the biologically assigned gender and the sense of belonging to the opposite sex, has played the role of the opposite sex as he or she grows up after birth, strongly wants to acquire the genitals and other sexual characteristics of the opposite sex, has been diagnosed as having transsexualism by a psychiatrist and received psychiatric treatment and hormone therapy for a long time, which failed to cure the (above) symptoms, rather has been adapted to the opposite sex mentally and socially, thus according to the general medical criteria receives an sex reassignment surgery to acquire the opposite sex's genitals and other bodily characteristics, furthermore feels satisfied as a person with the changed gender with a solid sexual identity, wears the clothes and hair matching with the changed gender and plays the role of the changed sex in both personal areas such as sexual relationship and social areas such as occupations, accordingly is accepted as the changed gender by people around him or her, and can get social approval of the changed gender because it causes neither a serious change to the relations with other people nor negative effect on the society. And the legal gender of such obvious transsexual should be evaluated as the changed gender, unlike that of the time of birth.

The case reversing the order of the court below that dismissed an application for correction of a family register and a change of name for lack of legal basis, on the ground that there are sufficient reasons for permitting correction of a family register and a change of name since an applicant is obviously a transsexual who can be recognized as a male in light of the ordinary social norms, in the case where a person, who was recorded as a female on the family register, but had the feeling of inappropriateness about being a female and the sense of belonging to the male as the person grew up, has actually lived as a male for a long time upon coming of age, and had sexual reassignment surgeries, to acquire a genital and the bodily appearance of a male, applied for correction of a family register and a change of name.

Majority Opinion
For a transsexual, as the gender at the time of birth is different from the present legal gender, and the statement on his or her gender in the family register cannot announce the true present status relationship, the present legally evaluated gender should be reflected on the family register. The current Family Register Act ("FRA") does not have provisions on the procedures to correct the gender that has been recorded on the family register at the time of birth in accordance with the changed gender.

But in consideration of the basic principle of the family register to record the true personal status relationship and (also) other grounds as follows, it is reasonable to permit an obvious transsexual to correct the statement on the gender in the family register in accordance with the procedure stipulated in Article 120 of the FRA; other grounds include (1) a transsexual also should be assured of worthiness and dignity as a human-being, have the right to pursue and be entitled to a life worthy of humans beings, such rights should be protected as long as they are not against the maintenance of law and order or the public welfare; (2) a reason why the FRA does not have the provisions on the procedures for a transsexual to correct the gender on the family register is not because the lawmakers decided not to allow it but because they failed to consider such possibility and necessity at the time of enactment of the law; (3) in interpreting 'there is a statement in the family register which is not permissible by Act' as one of the causes for the correction of the register provided in Article 120 of the FRA, a case should not be ruled out from that cause, where the statement in the family register becomes apparently impermissible by the current legal system due to changes in the situation such as changes of the law after recording it in the family register.

Moreover the fundamental purport of the correction procedure of the family register under Article 120 of the FRA is to correct the statement in the family register which is obviously impermissible by laws or against the truth, according to a simple procedure rather than a court judgment, so considering those aspects in the case where a person is obviously proved a transsexual after examination, it would be reasonable interpretation in accordance with of the purport of Article 120 of the FRA to make the statement on his or her gender in the family register comply with the changed gender according to the procedure of that Article so that the family register can reflect the true personal status relationship.

Where an obvious transsexual is permitted to correct the family register in accordance with the procedure in Article 120 of the FRA and accordingly the changed gender is recorded on the family register, such permission for the correction of the family register is the decision to identify the true present gender that has been newly evaluated by law following the change of gender, and thus, such permission and a consequent correction of the gender in the family register should not affect his or her existing personal status relationship and the rights and obligations.

Dissenting Opinion

 * Justices Son Ji-yol and Park Jae-yoon

Since the case of a transsexual should be distinguished from a case where en erroneous gender is recorded on the family register by an error or a mistake at the time of the birth report for a person who was born with incomplete sexual characteristics, Article 120 of the FRA, which purports to correct such innate errors in the family register retroactively to the birth date, cannot be applied to that case. The terms "mistake" and "the correction of the family register" stipulated in Article 120 of the FRA have clear meanings and no room for questions in interpretation exists, and the legislative intent of the FRA was to correct errors or omissions which were existing from the initial recording on the family register.

It is obvious that the family register which legitimately reflected the true personal status relationship at the time of the original recording, should not be an object to correct. Since the Majority Opinion would bring the same effect of adding, deleting or modifying some provisions of Article 120 of the FRA, which are clear and plain in their meaning, regardless of the literal (grammatical) interpretation of Article 120 of the FRA or its legislative intent, it goes beyond the limit of justifiable inferential interpretation. The issue of permitting that the substantial change of the gender for the changes in circumstances after the birth report was filed, unlike the issue of correcting the family register in order to confirm the gender at time of the birth, entails the creation of a new personal status relationship or changes in the existing one, including the consequent legal relations.

Therefore, the matter of whether to permit the change of the gender or not and what requirements and procedures are to be needed for the change should be determined in detail not by the FRA but by other substantive laws, and only after the change of gender is effective in accordance with such requirements and procedures, it should be reported and recorded in the family register with the purport of public notice and announcement. On the contrary, permitting a gender change through a simple procedure of correcting the family register while there is no law applicable concerning the requirements and procedures of a gender change, would go beyond the original purpose and function of the system of a family register, which are to provide the public notice and announcement of personal status relationships only.

On the other hand, the interpretation made by the Majority Opinion cannot be regarded as being really proper and effective in resolving the new social issue of transsexualism or providing legal remedy to the people who suffer from such an issue. In the current situation, it is more important for the court to point out the urgent necessity for the legal and institutional complementation regarding a change of gender and its criteria to declare that Article 120 of the current FRA cannot solve this problem, and to urge the National Assembly to gather the public opinion in the society and legislate laws that provide for the requirements, procedures and effects of a gender change, thereby helping create conducive environments where transsexual applicants can be fundamentally and effectively salvaged. In conclusion, it should not be permitted that a transsexual corrects the gender on the family register in accordance with Article 120 of the FRA.

Supplementary Opinion to the Majority Opinion

 * Justice Kim Ji-hyung

In the light of the above, if a transsexual can be recognized that his or her gender that was identified and reported at the time of birth does not fit the gender that is confirmed by ordinary social norms through certain courses resulting from the revelation of his or her own sense of gender after birth, changing the gender accordingly should be deemed to be included in the concept of "correction" in Article 120 of the FRA.

The nature of the transsexual issue is that their genders were determined and reported just by the biological factors at the time of birth, due to unidentified psychological and social factors, but their genders under the ordinary social norms are confirmed to be the opposite to the reported ones only after a certain amount of time has passed after the birth, and this is why we need the system of correcting their family registers to settle their problems.

It goes without saying that it is ideal to newly establish legislative regulations on the procedures concerning the gender correction of a transsexual, but as it is currently hard to expect any form of visible legislative measures, it would be the best choice not to let the unconstitutional situation continue with the complete legislative loopholes but for the court to examine the specific and individual cases and permit confirmed transsexuals to correct their family registers.

Reference Provisions
Article 15 (Matters to be Entered in Family Register) of the Family Register Act
 * The following matters shall be entered in the family register:
 * 4. Full name, origin of surname, sex, date of birth and resident registration number of the family head and members;
 * [This Article Wholly amended by Act No. 4298 of Dec. 31, 1990]

Article 49 (Report on Birth) of the Family Register Act
 * (2) The following matters shall be stated on the birth report: 
 * 1. Name, origin of surname and sex of the child;
 * 2. Whether the child was born in or out of wedlock;
 * 3. Date and place of birth;
 * 4. The names, origins of surname, and permanent domiciles of the child's parents (where the child's father or mother is a foreigner, his or her name and nationality);
 * 5. Name and permanent domicile of the family head in whose family register the child's name is to be entered; and
 * 6. Where a child establishes a new family, the reason and cause thereof and the place where the establishment took place.

Article 120 (Correction of Inadmissible Statement in Family Register) of the Family Register Act
 * If it is considered that there is a statement in the family register that is not permissible by Act or there is an error or omission in the statement, the interested person may, after obtaining permission from the family court which Has jurisdiction over the place where the family register exists, apply for the correction of the family register. 

Supreme Court 2011 case
In 2011, the Supreme Court established a new criterion on sex change on the family registry. The Supreme Court ordered that a transgender who has a marital status and/or has a child of age under 20 (minority) shall not be allowed to change the gender on the family registration registry.

In a case where X, registered as male on the family relations register, married Y and had a minor child Z, but after undergoing psychiatric treatment on several occasions due to severe gender identity disorder received sex reassignment surgery and filed for rectification of gender in the family relations register, the Court affirmed the ruling of the court below to deny X's rectification of gender, on the grounds that this could not be allowed for a transsexual person who is currently married or has a minor child, as this would cause difficulties for X's spouse and minor child in their legal status and social perceptions surrounding them.

Majority Opinion
When a person has already transferred to the opposite sex they were born with through sex reassignment surgery, and is perceived as being of the transferred gender from a medical perspective as well, there are no grounds for the law to involve itself in the personal and social activities of this person. But in cases where the transsexual person is married or has a minor child, they cannot be allowed to rectify the gender recorded on their family relations register, as this would cause difficulties for the legal status of their spouse or minor child, or confuse social perceptions about the state of affairs.

Therefore, a transsexual person cannot be allowed to rectify their gender when they are currently married or have a minor child.

Dissenting Opinion

 * Justices Yang Chang-soo, Lee In-bok

Ultimately, when it comes to the circumstance of having a minor child, it should be sufficient for the court to take this fact into consideration as one of the several elements to determine whether a transsexual person can be perceived as a member of the sex he/she has transferred to under social norms, together with the age of the child and whether they are in school, whether the child understands or agrees with their parent's rectification of gender, the level of protection, education and support they provide their child and other various circumstances forming the family environment. The circumstance of having a minor child should not be set as an independent negative criterion for the issue of rectification of gender.

Dissenting Opinion

 * Justices Park Si-hwan, Kim Ji-hyung, Jeon Soo-ahn

Whether to allow rectification of gender remains an issue of legislative policy, and there are cases where a natural familial relationship has been formed after the parent's transfer of sex, where not allowing rectification of gender in the family relations register could hinder the welfare of this minor child. While agreeing with the majority opinion in regard to ruling out a previous history of marriage as being grounds to restrict rectification of gender, we cannot agree with its stance of viewing the circumstance of currently being in a state of marriage as independent negative criteria for rectification of gender.

Even when a person is in a state of marriage, it would be sufficient to decide whether to allow rectification of gender in their family relations register based on whether doing so would cause confusion to status relationships in their life, upon comprehensive consideration of all relevant circumstances such as whether the marital relationship has been actually dissolved at the time of filing for rectification of gender and the reasons behind this, the amount of time since the actual dissolve of marital relations, the possibility of this actually dissolved marital relationship to be renewed again, etc.

Reference Provisions
Article 10 of the Constitution
 * All citizens shall be assured of human worth and dignity and have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.

Article 36 of the Constitution
 * (1) Marriage and family life shall be entered into and sustained on the basis of individual dignity and equality of the sexes, and the State shall do everything in its power to achieve that goal.

Article 909 (Custodian) of the Civil Act
 * (1) Parents shall have the parental authority of their minor child. In cases of an adopted child, the adoptive parents shall have the parental authority.

Article 912 (Standards for Exercise of Parental Authority) of the Civil Act
 * In exercising parental authority, priority shall be given to the welfare of a child.

Article 913 (Rights and Duties to Protect and Educate Child) of the Civil Act
 * A person of parental authority shall have rights and duties to protect and educate his or her child.

Article 104 (Rectification of Inadmissible Records Entered in Family Relations Register) of the Act on the Registration, etc. of Family Relationship
 * When it is deemed that any record entered in the register is inadmissible by law or there is an error or omission in such record, any interested person may apply for rectification of the register, obtaining permission of the family court having jurisdiction over the original domicile of the person to the case.