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The Seoul High Court has ruled a transgender person who had been persecuted in their country based on their gender identity must be recognized as a refugee under the Korean Refugee Act. By overturning a prior ruling, this latest decision has become the country's first court ruling to recognize persecution for an individual’s trans identity as grounds for granting asylum.

The Seoul High Court’s 1-2 administrative division, under Justice Kim Jong-ho, stated Thursday that it ruled in favor of a Malaysian woman, “K,” in a lawsuit she filed against the Seoul Immigration Office for denying her refugee status, overturning a preceding ruling against the plaintiff. In this most recent ruling, it was judged that K meets the criteria for refugees set by the Refugee Act.

K was assigned male at birth but has identified as a woman from the age of 10. She wears effeminate clothing and makeup as an expression of her gender identity. After attending an acquaintance’s wedding celebration in Malaysia, she was arrested for “appearing as a woman and wearing women’s clothing” along with 16 fellow Muslims and charged a fine of 950 ringgits (around US$200) and placed in detention for seven days.

In Malaysia, same-sex sexual activity is a crime that is punishable by law. Muslims are also subject to Sharia criminal law, which entails punishment that can include imprisonment, fines and flogging.

In order to avoid persecution, K left Malaysia in October 2015, and applied for refugee status in Korea in July 2017. However, neither immigration authorities nor the court of first instance accepted her refugee application.

The appellate court reversed the previous judgment and ruled that K was a refugee based on the Refugee Act. The court judged that since revealing that one is transgender can often lead to discrimination and that K’s country of birth does not provide protection for that status, being transgender can mean one has the status of a member of a specific social group (a term used in the definition of refugees in the Refugee Act), making K a refugee.

The court viewed K as having a “well-grounded fear” of persecution. The court stated that K suffered discrimination, and consequently punishment, for revealing her gender identity and that the discriminatory law appears to still be in effect in her home country.

It also said that K is not able to ask the state for protection against the threats she faces, arguing that this constituted not only an unfair social constraint, but the kind of threat in which serious infringement or discrimination against the dignity of human beings occurs, which corresponds to persecution as defined by the UN’s Refugee Convention.

The Minority Refugee Human Rights Network (MRHRN), a civic group that advocates for the rights of social minorities, said that this ruling should be a jumping-off point to further expand the scope of refugee recognition. The MRHRN stated that “refugee recognition when, in cases such as this, there is official evidence of persecution such as possession of criminal rulings,” but that “most refugees are unable to bring evidence because they are unable to procure evidence while evacuating.”

They went on to argue that “even in dubious circumstances, determinations should lean in favor of the applicant, and they should not be given the heavy burden of trying to prove their status.”

By Choi Min-young, staff reporter

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