South Korea has the makings of a broad legal framework to protect LGBT people from discrimination and violence, but it lacks provisions for enforcement and remedy.
You can help by writing to the Korean president and urging the government to institute tangible mechanisms to hold perpetrators of anti-LGBT discrimination accountable. Only then can the LGBT community in South Korea receive the equal protection from the laws that they deserve.
In Korean society, same-sex relationships are not recognized or widely accepted.
- According to a 2017 Gallup poll, 58% of Koreans opposed same-sex marriage, only 34% supported, and 8% were undecided.
- The South Korean President Moon Jae-in expressed his opposition to legalizing same-sex marriage in a televised debate during his presidential campaign.
LGBTQ Legal Status
- South Korea does not explicitly prohibit homosexual relations; however, there are few protections that guard against actual discrimination.
- South Korea does not recognize same-sex marriage or legal unions.
- Same-sex couples are denied rights enjoyed by heterosexual couples, such as medical self-determination, pensions, and inheritance.
- Since same-sex couples are unable to marry, they are also unable to adopt children, since “single” parents are generally prohibited from doing so.
- Korean courts can grant a legal change of gender, but only if the applicant complies with stringent requirements that deprive them of other civil liberties. People also cannot change their gender in the official family relations register if they are currently married or have a minor child.
- South Korea’s constitution prohibits discrimination based on sex, religion, or social status, which the Ministry of Justice has said applies to LGBT people. However, these “protections” act as rights without any enforcement power or remedy behind them:
- South Korean laws neither specify punishment for people who discriminate against LGBT people nor provide remedies to victims of discrimination or violence.
- The National Human Rights Commission of Korea is tasked with protecting LGBT rights, but it too lacks any enforcement power, and its recommendations are non-binding.
- Over the past decade, pushback from Korea’s strong conservative and Christian lobby has repeatedly foiled attempts to pass an LGBT-inclusive anti-discrimination law.
In the Military
- Under military laws, same-sex relations are automatically deemed harassment (regardless of consent) and punishable by up to a year in prison and dishonorable discharge.
- In April 2017, the South Korean military began identifying and punishing gay military servicemembers by confiscating cell phones of suspected gay soldiers and demanding that they identify others on their dating apps and contact list.
- There have been repeated incidents of gay servicemen facing beatings and bullying inside army bases, shrouded from public sight.
Freedom of Expression
- Samsung and Google banned popular gay social networking apps from their online stores. In 2013, Samsung rejected the gay app Hornet from its South Korean store, citing local values and laws that disallow LGBTQ content. The Google Play store has blocked Jack’d.
- The government denied the charity status application of an LGBT organization for three years until 2017, where the Supreme Court ordered the government to reverse its discriminatory stance.
Signs of Progress
- According to a 2017 Gallup Korea poll, 90% of Koreans surveyed said they supported equal employment opportunities for sexual minorities.
- In 2015, a court overturned the Seoul Metropolitan Police’s decision to ban a gay pride parade, stating that “unless there is a clear risk of danger to the public, preventing the demonstration is not allowed and should be the absolute last resort.”
- In 2014, South Korea voted in favor of a UN resolution aimed at overcoming discrimination based on sexual orientation and gender identity.
- In 2003, the Youth Protection Committee stopped classifying homosexuality as “harmful and obscene.” Previously, the law had justified censorship of LGBTQ websites, with the “logic” of protecting youth from homosexual content.
Call to Action
Write the Korean president to support of LGBTQ rights.
Send a message to the Korean government in support of LGBTQ protections—encouraging policymakers to do right by the country’s constitution and establish tangible mechanisms for uplifting and enforcing LGBT equality.
President of South Korea Moon Jae-In
Address: 1 Cheongwadae-ro, Jongno-gu, Seoul 03048, Republic of Korea
The National Queer Asian Pacific Islander Alliance is a federation of lesbian, gay, bisexual, and transgender (LGBT) Asian American, South Asian, Southeast Asian, and Pacific Islander (APIs) organizations. NQAPIA builds the capacity of local LGBT API groups, develops leadership, promotes visibility, educates the community, invigorates grassroots organizing, encourages collaborations, and challenges anti-LGBT bias and racism. NQAPIA acknowledges the pro bono assistance of Weil Gotshal & Manages LLP in researching country laws. Additional sources include Human Rights Watch and OutRight Action International.
NQAPIA Immigration Relief Executive Action Fact Sheet
People can currently apply for the DACA program that was announced on June 15, 2012. The expanded DACA program and DAPA is being delayed by partisan politics. We encourage people to prepare for the new programs. We will email our list as we have more information on the executive order.
President Obama announced several executive actions on immigration that can change the lives of millions of individuals. His announcements came after years, if not decades, of organizing and advocacy from immigrant communities.
NQAPIA commends the President for his actions and so many LGBT people, especially those who are Asian American, South Asian, Southeast Asian, or Pacific Islander will enjoy relief from deportation. Yet, we also urge law-makers to consider those still left behind. Many LGBTs will not benefit if they are not married or have children. Those who got into trouble with the law, no matter the reason or if dues have been paid, are excluded. NQAPIA will press for more comprehensive solutions that include all of our community and we encourage those who qualify to APPLY for current programs.
What is an executive action on immigration?
What does the executive action do, and who qualifies?
Deferred Action for Childhood Arrivals (DACA)
Deferred Action for Parental Accountability (DAPA)
How do I prepare?
Where can I find assistance to apply?
Are there any risks?
Other people who will benefit.
Enforcement of immigration laws.
Where do we go from here?
On June 15, 2012, the President announced the Deferred Action for Childhood Arrivals (DACA) program. This program allowed certain undocumented individuals to lawfully stay in the U.S. and gain work authorization. Since June 30, 2014, 685,544 people have participated in DACA. The Asian countries with the largest estimated number of youth eligible are South Korean (33,000), Philippine (15,000), China (15,000), India (11,000), and Pakistan.
On November 20, 2014, President Barack Obama announced expansions to the DACA program and a new Deferred Action for Parental Accountability (DAPA) program. This was done through a series of executive memoranda issued by the Department of Homeland Security. DACA and DAPA will provide temporary relief from deportation for up to 5 million undocumented immigrants.
The programs are not a permanent fix to our broken immigration system, which only Congress can do.
Administered by USCIS, DACA provides temporary relief from deportation for certain people brought to the United States as minors. It allows individuals who qualify to stay in the U.S. and obtain a work permit. DACA is granted on a case-by-case basis and does not provide a path to lawful permanent residence or U.S. citizenship. The DACA program was expanded by the November 20th announcement but the revisions are not yet in place. Check www.uscis.gov for updates.
Eights guidelines to qualify for the DACA program:
- Under the age of 31 as of June 15, 2012. The expanded DACA program will eliminate the age ceiling.
- At least 15 years of age at the time of application or in removal proceedings.
- Entered the United States before the age of 16.
- Continuously resided in the United States (U.S.) since June 15, 2007 to the present time. The expanded DACA will change this date to January 1, 2010.
- Physically present in the U.S. on June 15, 2012 and at the time of applying for DACA.
- Had no lawful status on June 15, 2012.
- Either currently in school, graduated from high school, completed a GED or equivalent, or a veteran honorably discharged.
- Not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
In coming months, work visas will be extended from two to three years. Current DACA recipients should check with USCIS about how these changes will impact them. DACA recipients must reapply every two years. Recipients should start the process between 120-150 days before expiration.
Find videos about DACA in Mandarin, Cantonese, Korean and Thai as well as receive legal advice in these languages at Asian American’s Advancing Justice and guides in Bengali, Urdu and Hindi at South Asian Americans Leading Together.
To apply for DACA or renew DACA, visit www.uscis.gov/childhoodarrivals.
Many LGBT young people, who were undocumented, have benefited from the DACA program and have gained legal status and work authorization.
DEFERRED ACTION FOR PARENTAL ACCOUNTABILITY (DAPA)
The Deferred Action for Parental Accountability (DAPA), administered by USCIS, provides temporary relief from deportation and work authorization to undocumented parents of U.S. citizens or Lawful Permanent Residents (LPRs). DAPA lasts for three years and should be ready for application in late May 2015.
- Have a U.S. citizen or LPR son or daughter (by blood or adoption) as of November 20, 2014
- Continuously resided in the United States since before January 1, 2010
- Physically present in the United States on November 20, 2014, and at the time of applying
- Have no lawful immigration status on November 20, 2014
- No criminal convictions (including a felony, significant misdemeanor, or three or more misdemeanors), no gang involvement or terrorism, not a recent unlawful entrants, and others
- Pass a background check that includes a criminal and immigration background check
Check www.uscis.gov to confirm start dates and the application process.
Now, parents of LGBT people can benefit and gain legal status.
- Save money (at least $465 for the application fee).
- Get proof of identity such as a government-issued passport, birth certificate or ID card.
- Gather proof of relationship to U.S. citizen or lawful permanent resident (LPR) son or daughter.
- Gather proof of how long you have been in the U.S.
- Gather any criminal records.
- If you have a criminal conviction, check with an attorney to expunge, vacate, or modify this conviction.
- If you have a prior deportation or removal order, check with an attorney.
- Stay informed and know your rights!
For more information go to http://nilc.org/toptenwaystoprep.html.
Fees to apply for DACA and work authorization are currently $465, with limited fee waivers for people in need. USCIS is expected to begin accepting applications for expanded DACA in February 2015 and DAPA in May 2015. Seek advice from trusted legal immigration service provider and be aware of scams.
For clinics who serve API and/or LGBT populations, please email email@example.com
Every person who applies for administrative relief must go through a national security and criminal background check. Anyone who qualifies for relief will be entered into a national database, and there will be a simple fine for the unauthorized entry. We encourage people to apply, and be prepared. BE AWARE OF FRAUD. Work with trusted legal immigration service providers. This is temporary relief, and we can work together to change our nation’s immigration laws and create a permanent pathway to citizenship.
EMPLOYMENT AND STUDENT VISAS
President Obama’s executive actions also included proposed changes in the visa programs. Individuals should talk to an immigration lawyer, and check www.uscis.gov for updates.
- Expansion of degree programs eligible for Optional Practical Training (OPT) program, which authorizes foreign students from U.S. schools to gain work experience after graduation. Students in the science, technology, engineering, and mathematics (STEM) fields will be allowed to work for a longer period in the United States.
- Greater visa portability for employment-based permanent resident status.
- Provide employment authorization (H4 visa) to spouses (including same-sex spouses) of H1B foreign workers who have been approved for a green card.
Several other changes are being proposed, and a task force is working to modernize the visa processing system. Check http://www.dhs.gov/immigration-action for more information.
Many LGBT Asians and South Asians come to the United States on professional worker (H1B) visas or as foreign students (F-1). These changes will extend the time that they can stay in the US and improve their experience with securing a visa.
DHS has discounted the problematic the Secure Communities program as a result of organizing and advocacy around the nation. However, a new Priority Enforcement Program (PEP) focuses on national security, border security, and public safety. Unlike Secure Communities that focused on pre-conviction arrests, PEP prioritizes detention and deportation post-conviction and continues to rely on cooperation with local, state, and federal law enforcement agencies. DHS programs such 287(g) and Criminal Alien Program still exist. DHS continues to expand the opening of new detention centers including those for families and children. If you need support with immigration enforcement concerns, please contact American Immigration Lawyers Association.
Work permits for foreign students graduating in the Sciences, Technology, Engineering, and Maths (STEM) are expanded for 2.5 years under Optional Practical Training (OPTs). OPT will be expanded to include many more fields of study. A significant number of LGBT students studying in the United States as F-1 student visa holders are from Asian countries. Oftentimes, they come to the US to study, and then they come out. Moreover, the administration is considering an expansion of the fields of study that qualify for OPTS.
This is a step in the right direction, but NQAPIA and our allies will still monitor the programs for the impact on LGBTs.
Administrative relief is a temporary solution. Our community must organize and press Congress for a permanent solution to our broken immigration system. The executive action also excludes community members with criminal convictions and LGBT people who do not have legally recognized partnerships or supportive families. The administrative action allows for profiling of communities under concerns of “national security” or “gang violence” with limited civil liberty protection.
- US Citizenship and Immigration Services: Executive Actions on Immigration
- How To Seek Prosecutorial Discretion from ICE
- Department of Homeland Security: Executive Action Key Facts
- Department of Labor Immigration Fact Sheets
- CRS Report on the President’s Immigration Accountability
- American Immigration Council’s “A Guide to Immigration Accountability Executive Action”
- Asian Americans Advancing Justice Executive Action Resource Page
- National Immigration Law Center
- Administrative Relief Resource Center
Contact us at firstname.lastname@example.org with any questions.
The National Queer Asian Pacific IslanderAlliance (NQAPIA) is a federation of lesbian, gay, bisexual, and transgender (LGBT) Asian American, South Asian, Southeast Asian, and Pacific Islander (AAPI)organizations. We seek to build the organizational capacity of local LGBT AAPIgroups, develop leadership, promote visibility, educate our community, enhance grassroots organizing, expand collaborations, and challenge homophobia and racism.
This week, the Indian Supreme Court issued a ruling that allowed for the creation of a “third gender” to broaden the country’s gender classification systems. Many of NQAPIA’s partner groups, especially those focusing on serving South Asian LGBT communities, have been following events unfolding in India with respect to the LGBT communities there. As Indians and South Asians in diaspora, activists here in the U.S. and across the world remain connected in ways large and small.
KhushDC, Washington, DC’s local South Asian LGBT organization issued a statement in response to the Indian Supreme Court decision. “We hope the Indian government will make it a priority to enact accessible laws that will actually empower and protect India’s transgender communities not just on paper, but in all spheres of life,” said Sapna Pandya, KhushDC President.
The statement also made the connection to the Indian Supreme Court’s previous decision last fall to revisit “Section 377” that in effect, re-criminalized homosexual behavior. South Asian LGBT organizations around the country and indeed, around the world, reacted immediately and urgently to this decision, calling for an end to homophobia and transphobia. Many organizations and activists came together to set up “377 No Going Back,” through IDEX (International Development Exchange) that connects U.S. based philanthropy to local, grassroots organizations in India directly working for LGBT communities in response to the Section 377 decision.
NQAPIA is pleased to support KhushDC, including through fiscal sponsorship of their 20th anniversary this year and stands in solidarity with the organizers of the 377 No Going Back campaign.