Same-Sex Partnership Rights Litigation

Introduction

Same-sex partnership rights in South Korea have been advanced primarily through litigation before the Constitutional Court and Supreme Court. While the Constitution does not explicitly address same-sex marriage, Article 36 provides that “marriage and family shall be entered into and founded on the basis of individual dignity and equality of the sexes.” Landmark decisions in 2024 by the Supreme Court regarding spousal health insurance benefits and ongoing constitutional complaints have significantly advanced LGBTQ+ rights in Korean law.

Historical Context

South Korea does not recognize same-sex marriage or civil unions. The lack of comprehensive anti-discrimination legislation has left LGBTQ+ individuals without explicit statutory protections. However, social attitudes have shifted significantly since the 2000s, with growing public support for relationship recognition.

Early Constitutional Complaints

In 2015, the Constitutional Court dismissed a complaint challenging the Civil Code’s definition of marriage as between a man and a woman (2010Hun-Ba43), holding that the legislature had discretion over marriage definitions. The Court noted, however, that this was subject to change as social consensus evolved.

Health Insurance Benefits Case (2024)

Factual Background

A same-sex couple, Kim Yong-min and So Seong-wook, entered into a marriage-like relationship and held a public wedding in 2019. When Kim, a public-sector employee, applied for spousal health insurance coverage for So, the National Health Insurance Service (NHIS) denied the application on the grounds that same-sex partners were not recognized as spouses under the National Health Insurance Act.

Lower Court Decisions

The Seoul Administrative Court initially dismissed the couple’s challenge, and the Seoul High Court affirmed, holding that the NHIS interpretation was within its lawful discretion.

Supreme Court Decision

On July 18, 2024, the Supreme Court of Korea (en banc) reversed, holding that the NHIS must provide spousal health insurance coverage to same-sex partners. The Court reasoned:

• The National Health Insurance Act’s reference to “spouse” should be interpreted in light of evolving social norms
• Denying coverage constitutes discrimination based on sexual orientation
• The constitutional right to human dignity (Article 10) and the right to health require inclusive interpretation

The decision was the first recognition by Korea’s highest court of same-sex partnership rights in the context of spousal benefits.

Constitutional Challenges to Marriage Definition

As of 2024, multiple constitutional complaints challenge the Civil Code’s marriage definition. The Constitutional Court has held hearings on whether the failure to recognize same-sex marriage violates:

• Equality rights (Article 11)
• Right to marriage and family (Article 36)
• Right to pursue happiness (Article 10)
• Human dignity (Article 10)

International Law Arguments

Petitioners cite the International Covenant on Civil and Political Rights (ICCPR) , the UN Human Rights Committee’s Toonen v. Australia decision, and comparative jurisprudence from the European Court of Human Rights and the US Supreme Court (Obergefell v. Hodges, 2015).

Conclusion

South Korean same-sex partnership litigation has achieved significant progress through judicial recognition of spousal benefits equality. The 2024 Supreme Court decision represents a milestone, and ongoing constitutional challenges may lead to broader recognition of same-sex relationships. The trajectory suggests incremental judicial progress toward marriage equality in South Korea.