Korea Times graphic by Cho Sang-won

Korea has been celebrated for its achievements in various fields, including rapid economic growth, the development of democracy in a relatively short period, and the captivating cultural content that has gained global recognition through music, film and food.

However, despite its elevated status, few are aware that Korea falls significantly short of global standards in legal protections for minority rights. Among OECD countries, it remains one of only two, along with Japan, without a comprehensive anti-discrimination law.

By definition, an anti-discrimination law is legislation that prohibits all forms of discrimination without reasonable cause across all areas of life, including politics, economics, society and culture. This principle aligns with Article 11 of Korea's Constitution, which states, "No one shall be discriminated against in any area of political, economic, social or cultural life on the basis of gender, religion, or social status."

So why has such a seemingly common-sense law, which reflects the spirit of the Constitution, sparked decades of controversy in Korea over its potential enactment?

Since the early 2000s, numerous efforts by lawmakers and the government have aimed to pass anti-discrimination legislation, with many bills introduced at the National Assembly.

However, none have successfully overcome the legislative barrier. One government-backed bill was repealed during its pre-announcement phase due to strong opposition from conservative Christian groups, while other bills proposed by lawmakers have stalled and been automatically scrapped when the Assembly was newly formed every four years, never reaching substantial parliamentary discussion.

A view of the National Assembly in Yeouido, Seoul / gettyimagesbank

Opposition and support for anti-discrimination law

The main opponents of the law are conservative Christian groups, who argue that it would promote homosexuality, which they view as a sin. On Sunday, they held a large prayer gathering in central Seoul to oppose both homosexuality and the establishment of a comprehensive anti-discrimination law.

Their views, though varied, can be encapsulated by remarks from Ahn Chang-ho, the chairperson of the National Human Rights Commission of Korea and a devoted Christian.

During his confirmation process at the Assembly in September, the former Constitutional Court justice stated that enacting a comprehensive anti-discrimination law would infringe on freedom of expression and religion and could result in reverse discrimination. He also argued that it might impose legal penalties on "reasonable criticism" of homosexuality and potentially incite a "communist revolution."

When liberal opposition Democratic Party of Korea Rep. Boo Seung-chan asked him to clarify his comments, Ahn replied, "Many cultural Marxists claim that 'our main enemy is Christianity' and argue that homosexuality is a means of socialist revolution. From this perspective, I expressed concerns that the anti-discrimination law could be used to promote a communist revolution."

The rights commission, which had called for the establishment of a comprehensive anti-discrimination law since its founding in 2001, recently changed its stance following Ahn's inauguration.

While not as extreme as Ahn's views, some scholars and business groups contend that an anti-discrimination law is unnecessary, arguing that it would be redundant within the existing legal framework. They point out that Korea already has specific laws prohibiting various discriminatory acts, including those against gender and people with disabilities in employment.

In response to the argument that a comprehensive anti-discrimination law is unnecessary within the Korean legal system, professor Hong Sung-soo from the College of Law at Sookmyung Women's University emphasizes two key reasons why such legislation is essential: first, it would address the legal loopholes left by existing individual anti-discrimination laws; and second, it would enhance the effectiveness of remedies for discriminatory practices.

"While an anti-discrimination law is not a cure-all, it will hold significance as a foundational law aimed at prohibiting discrimination and promoting equality in Korean society," Hong told The Korea Times.

He further noted that the law could serve as a symbolic starting point for Korean society to publicly declare its commitment to prohibiting all forms of discrimination and to implementing anti-discrimination policies across all sectors.

His perspective echoes that of the South Korean Coalition for Anti-Discrimination Legislation, which comprises various civic organizations advocating for the enactment of a comprehensive anti-discrimination law. The coalition emphasized the necessity of this legislation based on two main pillars: the need for an effective mechanism for addressing discrimination and the importance of broadly defining and addressing discriminatory practices.

gettyimagesbank

Silent majority

What is noteworthy is that, despite the longstanding failure to legislate an anti-discrimination law for over two decades, a majority of Korean citizens support its enactment.

Gallup Korea surveyed 1,000 adults nationwide in May 2022 and found that 57 percent of respondents expressed support for the enactment of a comprehensive anti-discrimination law, while only 29 percent opposed it.

Christopher Jumin Lee, a Harvard law graduate and attorney in the U.S., elucidated this paradox in his book, "Why Anti-Discrimination Law?" by applying the theory of "regulatory capture," also known as the "theory of economic regulation," introduced by the late Nobel laureate economist George Stigler.

The theory demonstrates that a small group with a strong stake is more proactive in voicing its opinions, building relationships with decision-makers and lobbying to influence policy, while a larger majority with weaker stakes remains passive. Consequently, the influence of this minority is disproportionately represented, leading to policies that favor them at the expense of the majority.

"This is the case with the anti-discrimination law, where the desires of the majority are obstructed by a vocal minority," Lee told The Korea Times in a recent email interview. "Although many people support the non-discrimination law, the overall level of engagement among supporters is low. In contrast, the opposing Christian groups, though relatively small in number, are highly motivated to prevent the legislation. They actively engage in lobbying efforts, contact lawmakers' offices, and organize large-scale protests whenever the anti-discrimination law is discussed at the Assembly."

U.S. Attorney Christopher Jumin Lee / Courtesy of Christopher Jumin Lee

Lee's explanation resonates with the experience of former Rep. Lee Sang-min, who introduced the Equality Act in June 2021. In a media interview, the former lawmaker expressed frustration over facing countless protest texts, phone calls, and demonstrations outside his constituency office from individuals and organizations opposing the bill. He noted that, with elections approaching, lawmakers were hesitant to support such legislation due to the intense opposition.

Kim Ji-hye, a professor at Gangneung Wonju National University and an expert in international human rights law, criticized the phenomenon of "active complaints" from determined opposing groups that pressure government officials and lawmakers, effectively compelling the state to institutionalize discrimination against specific groups.

"The government is no longer merely complicit in discrimination; it has transformed into an entity that actively perpetrates discrimination using its authority. This is not about unintentional discrimination during policy implementation; rather, it involves catering to the demands of those who insist on enacting discriminatory practices," Kim wrote in an essay contributed to a periodical published by the rights commission.

Lagging behind

These repeated setbacks have increasingly positioned Korea as unresponsive regarding minority protections. International organizations, including the United Nations Human Rights Council (UNHRC), have consistently urged Korea to enact anti-discrimination laws, expressing concerns about the ongoing discrimination faced by various minority groups.

One of the most recent appeals came from the UNHRC in late November 2023, urging Korea to "adopt comprehensive anti-discrimination legislation that explicitly addresses all spheres of life and defines and prohibits direct, indirect, and intersectional discrimination based on race, ethnicity, age, nationality, religion, migration status, disability, sexual orientation, and gender identity, while ensuring access to effective and appropriate remedies for victims of discrimination."

The global call for action will be even more pressing as Japan's parliament passed the LGBT Understanding Promotion Bill in June last year, its first law safeguarding rights regardless of sexual orientation or gender identity, leaving Korea as the only OECD country without legal protections for sexual minorities.

"This should not be considered pie-in-the-sky progressive rhetoric. We now lag substantially behind not just Western democracies but Asian peers such as Japan, Thailand and Taiwan. While the rest of the world has made rapid strides toward equality over the past two decades, Korean politics have largely stood still on this issue. We need to face the reality that if we continue to stand still, we will soon become the most regressive liberal democracy in the entire world on the issue of anti-discrimination," the attorney emphasized.

Lessons from global peers

Against this backdrop, ambassadors to Korea from Canada, Germany, and Norway — countries all renowned for their robust diversity policies — shared their insights and experiences with The Korea Times regarding the adoption and implementation of anti-discrimination laws in their nations.

From left, Canadian Ambassador to Korea Tamara Mawhinney, German Ambassador to Korea Georg Schmidt and Norwegian Ambassador to Korea Anne Kari Hansen Ovind / Courtesy of each embassy in Korea

Canadian Ambassador Tamara Mawhinney emphasized that Canada views its diverse population as a significant source of strength. She noted that communities that experience greater respect for human rights contribute to improved social cohesion, long-term economic prosperity and innovation. However, she also pointed out that achieving equality and equity demands "time and political, legal, and social leadership," adding that Canada took several decades to reach its current state.

"For instance, while homosexuality was decriminalized in Canada in 1969, it took another 27 years for the Canadian Human Rights Act to be amended specifically to include sexual orientation as a prohibited ground for discrimination. Our experience shows that progress didn't happen all at once, and there is still more work to be done," the ambassador said.

"Anti-discrimination laws provide a clear, predictable legal environment, reducing risks and encouraging investment. Long-term prosperity requires investing in the people, attracting and retaining talent, and a comprehensive anti-discrimination legislation helps with that. Inclusive policies helped Canadian companies better understand and access diverse global markets," the Canadian ambassador underscored, noting that LGBTQI+ inclusive countries attract three times more foreign direct investments, according to the 2020 Open For Business report.

German Ambassador Georg Schmidt expressed a similar perspective, noting that "statistics and studies have shown that diversity means richness of ideas and talents, experiences and knowledge." He highlighted that the business sector, which previously opposed the anti-discrimination law known as the General Equal Treatment Act enacted in 2006, now seeks to uphold it.

"The business sector initially rejected the anti-discrimination law, but all fears of high costs and numerous lawsuits have not materialized. Businesses do not want to lower the current level of protection," the German ambassador said.

"A robust protection from discrimination with effective enforcement mechanisms is very beneficial and makes any country even more attractive to foreign investment but foreign talents. Furthermore, the experience in companies has been for a long time that diversity is beneficial and drives innovation and profits. Diverse teams are more likely to be change-ready, innovation leaders, better at HR and higher performing measured by business, financial and talent outcomes," he added.

Norwegian Ambassador Anne Kari Hansen Ovind also pointed out that her country's "focus on diversity and inclusion has proven to significantly contribute to economic growth at the company level, driving innovation, creativity and employee satisfaction," boosting productivity and overall economic performance.

The ambassador emphasized the essential role of establishing the Equality and Anti-Discrimination Ombud and public awareness campaigns in fostering a culture of inclusivity in her country.

"Norway's experience shows the importance of a comprehensive legal framework that protects against discrimination based on factors such as gender, ethnicity and disability. Establishing dedicated institutions to enforce these laws, along with raising public awareness, is essential for fostering inclusivity," the ambassador said.