The writer Jung Myung-Hwa, on the basis of her experience working as an intern at Gonggam and at the Women’s Council at Yonsei University, shows us the human rights situations of sexual minorities through analyses of lawsuits and precedents.

 

Repercussions of the “X Zone incident”

 

In August of 2000, the government made a big mistake. It decided to declare an Internet site called “X Zone’” harmful media for teens, and limit teenagers’ access to the site, on the basis of the Youth Protection Law. X Zone was the first domestic online gay community and it had many actively-participating members. 

 

At that moment, a tidal surge no one had anticipated began building. After the government’s declaration in August, sexual minorities’ human rights groups gathered together to form “Joint Action against Discrimination against Gay and Lesbian People” (hereafter “JADGLP”). Nineteen organizations and individuals participated, including the Organizing Committee of the Queer Film Festival, Solidarity for LGBT Human Rights of Korea, and openly-gay television personality Hong Suk-Cheon. 

 

The movement led by these people grew fiercer and many groups of civil society started lending their support, including the Task Force Against National Censorship of the Internet, Human Rights Movement Sarang-bang, the Korean Federation of Medical Activist Groups, and CAMPUSmon (a Christian students’ coalition). This momentum did not subside, and so a year later, in July of 2001, Internet sites geared towards sexual minorities underwent joint strikes and protested against the government. In August of that year, related groups and individuals gathered to hold a rally in front of the Korea Internet Safety Commission. These people submitted a 300-person petition questioning the court about the constitutionality of the relevant provision of the Youth Protection Law. Twelve hundred more citizens gave signatures to a separate petition supporting their claim.

 

What I respected most was that sexual minorities marched through Myeong-dong, a busy shopping district, and held a rally denouncing the Youth Protection Law. When I found that out, I was so moved that it was as if static electricity coursed down my spine. The people that were present in Myeong-dong 12 years ago must have felt like lightning had struck their bodies. Because this was the first ever incident in which the issue of sexual minorities was put so boldly out into the open. It was the first movement in which a variety of people created a political force under the name “sexual minority” and revealed their faces before numerous citizens, voicing the demands of sexual minorities.

 

The precious terrain of sexual minorities: the Internet community 

 

This is where one question can arise. Why were sexual minorities so strongly enraged by the “X Zone incident"? Many factors certainly contributed, but the one I’d like to focus on is the fact that the X Zone was an internet community. 

 

“Communities” have special meaning for sexual minorities. In a heterosexualist society, many people relate to one another with the assumption that the other person as well as him or herself is heterosexual. If someone reveals their existence as not corresponding to this assumption, they are at risk of losing the entire network of relationships they formed up to that time. This is why in most places and at most times, the sexual minority must hide their sexual identity with extreme caution and repeat uncomfortable lies. In this situation the gay and lesbian community becomes a space in which many sexual minorities are finally reborn as social beings. 

 

▲ The 2003 Day of Action to Abolish Discrimination Against Homosexuality, which took place on the 30th of August. ©Jinbo Network Center

Some people cannot maintain the conviction that they fully exist when they are alone. The existence of human beings as social animals obtains a concrete basis and content when they reveal themselves before others and create relationships based on that revelation. In online communities, sexual minorities can fearlessly voice their sexual identity, form a series of experiences through which they are publically acknowledged, hold discussions with others and share emotions about or on the basis of sexual identity. 

 

In this way, the ee-ban(異般, 이반 - sexual minorities refer to themselves in this way as a sarcastic way of pointing out the perspective that considers heterosexuals as il-ban, or “normal” people), whose “absence” was forced through heterosexualism, find the precondition for the possibility to finally “exist” as themselves. For many sexual minorities, the community is a precious terrain on which their sexual identities can attain vitality. 

 

Online communities are especially important to sexual minorities in their teens. According to one survey, gay or lesbian teenagers mostly approach the community through the Internet (70%), with their friends (23.1%) coming a distant second.

 

Many teenage sexual minorities realized their sexual identity during their childhood, but the spaces in which they can manifest that identity are very limited. The main areas where ee-ban can gather offline are either age-restricted areas like clubs or tented bars (pojang-macha,) or open public spaces like the Shinchon park, where the threat of being unwillingly outed persists. 

 

Also, one reason is that teens’ revelation at home or school of their identity as sexual minorities often leads to punishment or exclusion from that space or , but if they leave home or school, then the odds are high that, because they are teens, they will not be able to receive a fair wage or procure a legal base of residence. In this situation, many teenage sexual minorities create their own identities through the Internet. 

 

As of 2012, teenage sexual minorities’ online communities such as “Rateen,” “Teenage Dong-in-ryeon,” and “TG Net” are numerous. The members of Rateen number around 5,700 (as of September 2012). Here, teenage sexual minorities consult each other on their concerns and share their joys and sorrows, planning offline meetings or encountering human rights movements for sexual minorities for the first time. 

 

Between the schools, where no counselor or teacher has a systematic understanding of sexual minorities, and family members, who either chase their children out of the home or try to reform them, the internet community is a vital foothold where teenage sexual minorities can exist as ee-ban. 

 

Therefore, the government’s decision to deprive those children of their right to access Internet communities such as X Zone is a demand that they deny one of their core identities, and it is a coercive demand that they withstand the experiences of everyday discrimination and violence on their own. It is heartless and unjust treatment that snatches away one of the very few bases on which teenage sexual minorities can exist at all.  

 

What the two lawsuits left behind 

 

Therefore, the fight to defend X Zone was close to an attempt to defend a world in which sexual minorities could live on their own terms. In this process the JADGLP carried out two lawsuits. One was a lawsuit on unconstitutionality, arguing whether the method of indicating that certain Internet content was harmful media for teens when it was judged to be so was actually constitutional. This lawsuit was brought before the Constitutional Court in 2001 and the decision was made on January 29th, 2004.

 

The other lawsuit argued whether or not the government’s administrative measure determining and declaring X Zone as harmful media for teens was effective or null and void. This lawsuit was a long battle which received three decisions in 2002, 2003, and 2007, from the Administrative Court, High Court, and Supreme Court, respectively. In each sentence, the attitude of the judges towards same-sex sexual orientation is made clear. Through the sentences, we can glimpse what kind of entities gay and lesbian teenagers are designated as in the legal system of the Republic of Korea. 

 

In the case of the 2004 decision of the Constitutional Court, the object of the ruling was on whether the “electronic indication method” of declaring media harmful for teens was fair. So the judgment essentially decided whether the method of blocking the site through certain programs or placing the title page of ‘harmful media for teens’ instead of the site’s screen was constitutional or not.

 

But when the Constitutional Court ruled the electronic indication method to be constitutional, much of the press reported inaccurately that “the act of blocking a gay or lesbian site is constitutional.” This absurd misreport was not only the result of existing prejudices considering gay-and-lesbian-related media illegal, but also was an indicator of what social expectations had been regarding this particular lawsuit.

 

Because X Zone had asked in the trial whether their site could be considered harmful media for teens simply because they had dealt with matters of same-sex sexuality, the press and the JADGLP were focusing their attention on how the Constitutional Court would respond to this question. But in the actual ruling, these questions were flatly spurned as being “irrelevant to the object of adjudication in this case.” 

 

Also, a sufficient response to whether designating the site harmful media to teens was an infringement on the teens’ right to knowledge or the freedom of conscience of the site’s moderator was not provided. The response was simply that there was no more to discuss on this topic, even if such rights had indeed been infringed, because “this had occurred in concurrence with the specific declarations and system of deliberation and decision-making on harmful media for teens.”

 

In this way, the Constitutional Court, without making any judgment on the initial declaration designating a gay and lesbian site as harmful media for teens (and thus ignoring one of the key problems brought forth by X Zone), simply ended up providing a ruling on the electronic indicator format- the secondary consequence the main issue. 

 

This gave deep disappointment to the human rights movement camp, who had anticipated a ruling that would find the administrative measures discriminating against same-sex sexuality problematic under the constitution and acknowledge the diverse sexual orientations of teenagers. 

 

The following lawsuit, to declare the administrative measures null and void, showed similar aspects. X Zone underwent three trials, questioning the justness of the administrative measure that blocked netizens’ access to X Zone as well as the designation of that site as harmful media for teens. In the trials that continued for five years thus, all courts focused only on the fact that the lawsuit X Zone filed was flawed in terms of formality, and avoided making active value judgments on same-sex sexuality or discrimination against same-sex sexuality. 

 

Of course, as the courts say, the lawsuits to cancel administrative measures are requests to cancel the effectiveness of the measures, and these should be filed within a year of the declaration of the relevant measures. But X Zone did not receive any notices from the Korea Internet Safety Commission or the Commission on Youth Protection until more than a year had passed after they had been designated and declared harmful media for teens. That was why they had been unable to request the cancellation of the decision. 

 

Ultimately, X Zone was to remain harmful media for teens even after the trials. The Youth Protection Law labeling [and discriminating against] gay and lesbian media was also retained. The possibility of gay and lesbian sites’ being censored was not removed. 

 

The successful revision of the Youth Protection Law Enforcement Ordinance

 

Although it isn’t explicitly stated in the results, the rulings of this incident do include the court’s opinion on gay and lesbian media, albeit mentioned passively. In the rulings, the court acknowledged that whether X Zone’s contents were obscene or not was not objectively clear, but “possibly different for each viewer.” The declaration was that “if X Zone is acknowledged as harmful media for teens, the personal rights and right to pursue happiness of the individual, freedom of expression of or the right to knowledge regarding same-sex sexuality, which are guaranteed by the constitution, are under threat of infringement.” 

 

In addition to that, the Supreme Court expressed its opinion that “it is also questionable as to whether same-sex sexuality comprises sexual relations intolerable according to social convention such as perverted sexual acts including incest or orgies, as listed in Youth Protection Law Enforcement Ordinance, Article 7.”

 

Of course, ultimately, the court does conclude that the Youth Protection Law Enforcement Ordinance including gay and lesbian media is still effective because “the Supreme Court has not declared it null and void, and while the flaws of the Enforcement Ordinance may be said to be considerable, they cannot be called objectively clear.” Because this was the first case finding fault with the Youth Protection Law Enforcement Ordinance regarding discrimination against homosexuals, there had been no Supreme Court rulings declaring this Enforcement Ordinance null and void. 

 

But even on this matter, a positive interpretation is required. We need to keep in mind that the Constitutional Court’s rulings up to that point had not mentioned anything at all about teens’ rights to access and utilize media related to same-sex sexuality. In comparison, the High Court’s ruling on this case did mention that the Youth Protection Law’s articles regarding same-sex sexuality were potentially unconstitutional. There is certainly an element of a step in the right direction here.

 

While the trial was ongoing, numerous changes occurred. On April 2, 2003, the National Human Rights Commission of Korea declared that the article mentioning “homosexuality” in a discriminatory way in the Youth Protection Law constituted a violation of constitutional values such as right to pursue happiness, freedom, and freedom of expression, and recommended that the Youth Protection Committee remove it. 

 

After that, on the 29th of April, the JADGLP held a panel discussion  on “Homosexuality, Freedom of Expression, and Teenagers,” opening a forum of debate on the legal status of gay and lesbian people and ways of supporting gay and lesbian teens. The next year, on February 2, 2004, the Youth Protection Committee pre-announced the adoption of an amendment to the Enforcement Ordinance mainly consisting of the deletion of the homosexuality article. 

 

Considering that it was included in the list of media regulated by the Youth Protection Law in 1997, the article discriminating against same-sex sexuality effectively ended its life at the age of seven. In that short period that lasted less than a decade, gay and lesbian media became an icon among the objects of restriction for teenagers’ human rights.

 

It is certain that a great part of these drastic changes resulted from the efforts of countless activists, sexual minorities, and legal professionals. They fought relentlessly and won bit by bit, so that the society to come would not be composed solely of failure and submission. This is a history of victory that we must remember with distinction. 

 

Published: October 25, 2012

Translated by Chung Yongkyung

*Original article: http://ildaro.com/6178

 

◆ To see more English-language articles from Ilda, visit our English blog(https://ildaro.blogspot.com).

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