[In-Depth Review] Prerequisites for Enacting the Anti-Discrimination Act

Controversy is intensifying over the Anti-Discrimination Act proposed last June. Supporters argue that all forms of discrimination must be prohibited to establish a true human rights society. Opponents claim that it infringes on religious freedom and could actually set back human rights. The Anti-Discrimination Act aims to eliminate unreasonable discrimination in all areas of society. Judging by its intent alone, it is difficult to readily understand those who oppose it. Are those who oppose the enactment of the Anti-Discrimination Act truly anti-human rights and proponents of discrimination?

Those opposing the Anti-Discrimination Act feel wronged. They say they are trapped in the frame of "Opposing the Anti-Discrimination Act = anti-human rights discriminators" set by supporters. They claim that they firmly reject discrimination based on gender, race, disability, status, region, and so on. However, most of them being Protestants, they argue that discrimination is necessary only in the case of homosexuality, which the Bible defines as a "sin." They say that if they cannot criticize homosexuality according to the Bible due to the Anti-Discrimination Act, it constitutes an infringement on religious freedom.

Regardless of whether the Bible's content is correct, the Anti-Discrimination Act includes provisions that impose fines of tens of millions of won for discrimination based on sexual orientation. There are also clauses that impose criminal penalties if discriminatory acts resulting in disadvantageous treatment are recognized. Employment disputes related to homosexuality may also arise.

It is proper for the law to be enacted in a direction supported by the public. If a significant portion of the public opposes the enactment, a consensus should be reached through dialogue and persuasion with them. At the very least, the law should minimize conflict. If the law is enacted or amended without such a process, it will inevitably lose its effectiveness shortly after. A representative example is the recently implemented amendment to the Lease Protection Act. Just days after its passage, talks of another amendment are already underway. This chaos arose from overlooking concerns about landlords' property rights. The so-called "Minsik Law," which imposes heavier penalties on illegal drivers in school zones, is also controversial due to its enactment without sufficient consensus.

Hasty passage of laws demands high social costs. The Act on Compensation for Victims Related to the Gwangju Democratization Movement in 1990 did not sufficiently consider the concerns of 5.18-related groups, resulting in conflicts over the law’s implementation lasting a staggering 1,458 days. The amendment to the Pharmaceutical Affairs Act also took 1,014 days after enforcement before conflicts were resolved and proper functioning began.

Although trust in the United States has eroded due to the COVID-19 pandemic, the long history of democracy in the U.S. can still offer helpful examples. When enacting or amending laws that may cause social conflict, the U.S. employs a "negotiated rulemaking" approach that involves stakeholders in advance to create consensus. The U.S. Environmental Protection Agency, until the mid-2000s, enacted about 20 contentious regulations by facilitating agreements among stakeholders, and two-thirds of these agreed-upon regulations have been implemented without conflict. The French National Commission for Public Debate (CNDP) also leads discussions among stakeholders on laws expected to cause conflict to derive solutions.

These methods may require additional time and costs. However, considering the social conflict costs incurred after premature legislation, enacting laws through sufficient consultation is more efficient. If stakeholders have concerns about the enactment or amendment of laws, compromises or exceptions that alleviate those concerns should be found. The Anti-Discrimination Act should also be enacted only after thorough discussion and consensus.

Heo Yoon, Chief Spokesperson, Korean Bar Association

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