Citation: 2020 RLLR 164
Tribunal: Refugee Protection Division
Date of Decision: January 9, 2020
Panel: Becky Chan
Counsel for the Claimant(s): (no information available)
Country: South Korea
RPD Number: VB9-05340
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000186-000190
— PROCEEDINGS COMMENCED
[1] PRESIDING MEMBER: This is the decision of the Refugee Protection Division in the claim for refugee protection of XXXX XXXX XXXX a citizen of South Korea who claims refugee protection pursuant to Sections 96 and 97 [1] of the Immigration and Refugee Protection Act.
[2] I have considered the evidence in this case and I am ready to render my decision orally. Written reasons will be sent to you and your Counsel and the written version will be a transcript of what I am saying now.
[3] I have considered and applied the Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation, gender identity and expression. I find that you are a Convention refugee as you have a well-founded fear of persecution in South Korea.
[4] I will summarize your allegations as follows. You fear persecution in South Korea based on your sexual orientation and your gender identity as a bi-sexual transmasculine person. Your assigned gender at birth was female. You are non-binary and you express yourself as masculine. You are attracted to both males and females.
[5] You disclosed your sexual orientation to your mother at age XXXXorXXXX XXXX. She attempted to kill you and herself first with a kitchen knife and later by jumping off a building you lived in. Both of your parents have rejected you by reason of your sexual orientation and gender identity. You spent a great deal of time outside of South Korea while you were growing up. You studied in Thailand and the United States. You completed your university studies in Chicago. You travelled to and remained in South Korea during your breaks from school.
[6] Beginning in 2012 you started hormone replacement therapy and you have been taking testosterone injections since. You physical appearance changed over time and became more masculine as the hormone replacement therapy progressed. You have had romantic and sexual relationships with males and females. You have been in a common-law relationship with a person who identifies herself as pansexual named XXXX (phonetic) for seven years. You lived together in the United States. She is a citizen of Bhutan.
[7] You face discrimination in employment in South Korea because you are transgender. You physical appearance does not match your assigned gender on your identity document which states that you are female. You encountered sexual harassment and discrimination at work. You also encountered ridicule from medical staff when you sought health care in South Korea.
[8] You fear that you will continue to endure such a significant level of discrimination that you will not be able to secure employment, access to health care services and to be able to live openly as a transmasculine bi-sexual in South Korea with a basic level of dignity. You lived for a number of years in the United States on a student visa. When your student visa expired you came to Canada on XXXX XXXX XXXX 2019 and made a refugee claim in XXXX 2019.
[9] I find that you have established your identity as a citizen of Korea through copies of two of your passports in Exhibit 1. I find that you have provided a significant amount of evidence to establish your gender identity and sexual orientation as a transmasculine bi-sexual. Your passport indicates that your assigned gender if female. A West Coast medical imagining has provided a copy of your pelvic ultrasound in Exhibit 4 at page 1. This corroborates your assigned gender and the documented West Coast medical imagining further corroborates that you are on testosterone therapy.
[10] You provided numerous letters from many different people you have known through different stages of your transition corroborating your gender identity and your sexual orientation, in Exhibit 4. Many of the authors of these letters identify themselves as sexual minorities. You have corroborated your relationship with XXXX (phonetic) through her letter and her sister’s letter as well as a lease showing that you lived together in Chicago. These documents are in Exhibit 4.
[11] You provided evidence of your connections with transgender friends in Vancouver and other places. As well as your involvement in the LGBTQ community in Vancouver you have been involved in Rainbow Refugee in Vancouver and the I Belong group an LGBTQ group that is part of a mosaic, a local organization that supports immigrants. You have also been involved in the local organization called Pride and Art society which organizes the queer arts festival and other events. I find that you have established that you are transmasculine bi-sexual.
[12] I find that the fear you face sorry — I find that your fear of societal discrimination and harassment is corroborated by the country condition documents. Documents in your disclosure in Exhibits 4 and 5 as well as documents in the National Documentation Package demonstrate that transgender persons face a serious level of discrimination in employment, access to health care and various facets of life in South Korea.
[13] One of the significant hurdle faced by a transgender persons is Korea is the difficulty in legally changing your assigned gender on your national identity documents. The Response to Information Request on the treatment of transgender people, NDP Item 6.2 as well as the Kaleidoscope report NDP Item 6.2 talk about this. While it is possible to change one’s gender legally the requirements have been described by the report of the Kaleidoscope Human Rights Foundation NDP Item 6.1, as being incredibly complex discriminatory and restrictive.
[14] In 2006 Supreme Court decision gave transgender persons in South Korea the right to be recognized according to their preferred gender. However the Supreme Court drafted a number of restrictive guidelines on when legal change of gender can occur. A transgender person could be recognized according to their preferred gender if the following conditions exist. The person is an unmarried Korean citizen over 19 years of age with no minor children; has suffered from continued gender diaspora and has the sense of belongingness to the opposite due to being transsexual; after having undergone psychiatric treatment or hormone therapy still wish to receive surgical treatment and alter his or her physical appearance including external genitalia through sexual reassignment surgery; has become sterile as a result of sexual reassignment surgery with zero or extremely remote possibility that they will return to their former gender; does not show indications that he or she filed the application for the purpose of committing a crime or abating the law; and has parental consent. The Response to Information Request also states that sources say that recognition of gender reassignment is only possible after gender reassignment surgeries and sterilization.
[15] You have indicated that you do not wish to have surgery due to the invasive nature of the procedure and the many risks associated with the procedure. Another impediment you face in having your gender legally reassigned is that you would not be able to secure parental consent. Neither of your parents would be supportive of your petition for gender reassignment. You have no contact with your father at all. You have contact with your mother but she does not accept your sexual orientation or gender identity. You would not likely be able to change your gender assigned legally in South Korea. The test outlined by the court is highly onerous as it requires you to undergo medical procedures against you will including sexual reassignment surgery. I find that this requirement is in itself persecutory.
[16] Individuals who cannot obtain a legal change of gender are by extension unable to change their gender on their identity documents. In South Korea all persons are issued a national identity card which is essential for securing employment, shelter and various governmental services. Each persons’ national identity number reveals their date of birth and their gender. The identity number is an all purpose lifetime number. It prevents transgender person who do wish to — it prevents persons who do not wish to reveal their gender identity from using legal documents in most areas of society including the labour market, medical institutions and financial institutions.
[17] I find that you will face a significant level of stigmas in South Korea as you have in the past if you are identified as a female on your identity documents but you present as a male. You have documented the discrimination you face in securing and maintaining employment in South Korea in your Basis of Claim form and the sources in the country condition documents corroborate that the transgender person experience discrimination related to employment in the similar manner that you have.
[18] According to the Kaleidoscope Foundation report, the LGBTI community continues to suffer significant degree of stigma, abuse, harassment and discrimination. Marriage of same sex couples remains illegal. The same report states that transgender persons experience physical harassment and assault including rape.
[19] I find that your fear of persecution has a nexus to a Convention ground of membership in a particular social group as a transmasculine bi-sexual. I find that the level of discrimination you would face in employment, accessing health care and other services as well as the threat of harassment and violence is sufficiently serious to be persecution. You cannot live openly as a transmasculine bi-sexual in Korea without facing a serious possibility of persecution.
[20] I find that the presumption of state protection has been rebutted by clear and convincing evidence. There is very little legal recognition and protection of the rights of sexual minorities in general in Korea.
[21] According to the US Department of State report, NDP Item 2.1, no law specify punishment for persons found to discriminate against lesbians, gay, bi-sexual, transgender or intersex persons or provide remedies to victims of discrimination or violence based on sexual orientation. I note also that the military criminal act criminalizes consensual sex between men in the military with up to two years of imprisonment.
[22] According to the Kaleidoscope Foundation document there is an absence of any anti- discrimination laws to protect LGBTI persons resulting in a failure to protect against widespread discrimination in a range of areas such as employment and health care. The government has failed to provide access and acceptable processes for individuals to legally choose their gender without discrimination or violation of their human rights. The government does not recognize same sex relationships. There is also lack of protection for same sex couples with respect to domestic violence and a lack of equal protection for sexual minorities with respect to sexual assault.
[23] I find that state protection is not available to you in South Korea.
[24] I also find that there is no viable internal flight alternative for you in South Korea. There is no objective evidence that a particular part of South Korea would be more safe for you as a transmasculine bi-sexual. I find that you would face a serious possibility of persecution throughout the country.
[25] For the foregoing reasons I find that you are a Convention refugee and I therefore accept your claim.
— PROCEEDINGS CONCLUDED