The Question Raised by the Olympics: "What Is Gender?"

At the 2024 Paris Olympics, Imane Khelif (Algeria) and Lin Yu-ting (Taiwan), who have XY chromosomes (the chromosomal combination representing males) but competed in women's boxing events, sparked significant attention and controversy. The International Olympic Committee (IOC) stated that the two athletes are "female on their passports" but did not clearly disclose biological information such as chromosomes and hormone levels. Ultimately, the IOC decided that even with XY chromosomes, they can be recognized as women. Both athletes were disqualified last year at the World Championships due to chromosome issues during gender eligibility tests, which also ignited heated debates about gender criteria at that time.

[Image source=Beomryul Newspaper]

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The controversy over gender criteria is not limited to sports alone. In South Korea, social discussions surrounding the standards for transgender gender correction have been ongoing for a long time. While there is a growing call to ease gender correction procedures to protect transgender human rights and respect sexual self-determination, concerns about social confusion remain strong.

In January, the Supreme Court announced that it would consider abolishing the guidelines requiring sex reassignment surgery for transgender gender correction. The current Supreme Court’s “Guidelines on Handling Applications for Gender Correction of Transsexuals” Articles 6 and 3 list the confirmation of sex reassignment surgery status as a “reference matter” when applying for gender correction approval. In February 2020, the Supreme Court revised these guidelines, relaxing the requirement from an “investigative matter” to a “reference matter” regarding sex reassignment surgery during the gender correction approval process.

Lower courts have issued rulings permitting gender correction for transgender individuals who have not undergone sex reassignment surgery. In February 2023, the Seoul Western District Court approved gender correction for a transgender person without surgery, stating that “the individual has undergone hormone therapy for eight years and is clearly evaluated as female in the mental domain” (2022Beu2). In April, the Yeongdong Branch of the Cheongju District Court ruled that the Supreme Court’s guidelines on sex reassignment surgery violate the 2022 Supreme Court plenary decision, which stated that the Constitution and external genital surgery should not be prerequisites for gender correction (2023Hogi1033, etc.).

However, some courts still consider sex reassignment surgery as a substantive criterion for gender correction approval, failing to adequately protect transgender rights. Lawyer Jo Sook-hyun (52, Judicial Research and Training Institute Class 30) of Law Firm Won said, “It would be good to consider the sex reassignment surgery guidelines as merely a reference, but in practice, many cases still use it as an approval criterion,” adding, “There is a need to review these guidelines to ensure consistency in court rulings.”

An official from the Court Administration Office stated, “There is a risk of misunderstanding that the Supreme Court guidelines present prerequisites for gender correction approval applications or standards for court judgments,” and added, “We are carefully reviewing these guidelines from multiple perspectives.”

Globally, the trend is toward easing the requirements for transgender gender correction. Around 2010, international human rights norms such as the Universal Declaration of Human Rights and United Nations (UN) reports recommended removing the requirement for sex reassignment surgery for transgender gender correction, deeming it a harsh measure.

In response, in 2011, the German Federal Constitutional Court ruled that requiring sex reassignment surgery for gender correction violates the Constitution. This ruling became an important precedent protecting transgender sexual self-determination and bodily integrity, leading to similar rulings in Asian countries such as Hong Kong and Japan.

In February 2023, the Hong Kong Court of Final Appeal ruled that government policies requiring sex reassignment surgery as a condition for gender correction are unconstitutional. In October of the same year, the Japanese Supreme Court also decided that the “Act on Special Cases in Handling Gender” which forces sex reassignment surgery, violates the Constitution.

Furthermore, some countries allow gender correction without medical diagnosis. In February last year, Spain passed a bill allowing legal gender changes without evaluation by medical professionals. In March of the same year, Finland passed a law permitting gender correction based on the self-declaration of transgender individuals without a doctor's diagnosis.

According to the human rights organization Human Rights Watch (HRW), Belgium, Ireland, Luxembourg, Malta, Portugal, and others also follow simplified legal gender correction procedures based on self-declaration. These countries recognize individuals’ rights to determine and decide their own gender identity.

While simplifying gender correction is seen as an important advancement in protecting transgender individuals’ rights, concerns remain about potential social confusion. Some argue that gender correction could be abused for criminal purposes, infringing on women-only spaces. For example, in 2018, a transgender person forcibly molested a 5-year-old girl in a girls’ restroom at an elementary school in Georgia, USA.

The fairness of women’s sports also remains a continuous subject of debate. Transgender participation in women’s categories may undermine fairness due to biological differences. Lawyer Bae In-gu (56, Class 25) of Law Firm YK explained, “In sports, there is a need to reconsider the criteria distinguishing male and female categories,” suggesting, “Similar to how boxing divides weight classes, a comprehensive approach considering ‘physical limits’ could be used to decide transgender participation in women’s competitions.”

He added, “It is natural for citizens to feel discomfort if a transgender person with a male appearance enters a women’s locker room,” emphasizing, “If society respects the sexual freedom and self-determination of sexual minorities, sexual minorities should also act with mature civic consciousness as integrated members of society.”

On the other hand, some argue that claims linking eased gender correction criteria to abuse crimes lack evidence. Lawyer Jang Seo-yeon (46, Class 35) of the Public Interest Human Rights Foundation Gonggam said, “Raising the threshold for gender correction based on vague, unproven fears could infringe on transgender individuals’ fundamental rights,” stressing, “Gender correction is a very important matter for the individuals involved.”

Lawyer Ryu Min-hee (46, Class 41) of the Public Interest Lawyers’ Group Hope Making Law stated, “There is no evidence that easing gender correction criteria leads to violence against women or social confusion,” adding, “The trend of many countries abolishing the requirement for sex reassignment surgery as a condition for gender correction supports this. Our country’s awareness should also change through reasonable dialogue and discussion.”

Jinyoung Lee, Sungkyu Lee, Legal Times Reporters

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