In 2020, the Korean National Health Insurance Service (NHIS) recognized the gay couple as legal partners. However, the NHIS overturned their decision. Now the couple is going through a lawsuit to be recognized as each other’s spouses. Currently, the appeal is in progress, and the court has alluded to the principle of equality as the main reference for the trial.
English Translation: Juyeon
Translation review: 동치
Writer of the original text: 레이
Review and amendments to the original text: Miguel
In February 2020, Kim Yong-min, 30, registered his spouse So Seong-wook, 29, as his beneficiary in the NHIS (see image 2). As Kim Yong-min is an employer-sponsored insurance subscriber, his employer partially pays for the National Health Insurance, allowing him to enjoy the benefits of the insurance at a much more affordable price. Besides, the spouse and siblings of the employer-sponsored insurance subscriber can be registered as beneficiaries and are exempt from paying the insurance if their income and wealth are below a certain standard. However, the gay couple had never been recognized as one another’s beneficiaries. In February 2020, Kim Yong-min inquired the NHIS about whether it was possible to register his spouse as a beneficiary informing them that they were "a same-sex couple in a de facto marriage." The NHIS replied, “Spouses in a de facto marriage that are not legally married can also obtain the beneficiary status.” In this context, So Seong-wook was able to register himself as Kim’s beneficiary. As a result, the NHIS recognized the two as spouses and recognized So’s status as a beneficiary.
Administrative error to recognize them as spouses?
However, when the case was revealed through the media, the NHIS unilaterally canceled So’s beneficiary status in October 2020, stating that same-sex spouses cannot be considered beneficiaries and that the registration was a mistake. The couple immediately filed a lawsuit.
At the hearing, So Seong-wook stated, “The NHIS has recognized the status of beneficiaries of employers for spouses in de facto marriage before marriage registration as long as they provided the required documents. Heterosexual couples would not need to file such a lawsuit as they would be undoubtedly recognized as married couples. [The only difference from heterosexual couples] is the gender difference. The plaintiff and his husband share a partnership with shared economic responsibilities in a community in which they live together, and it is a violation of a constitutional right to not recognize the beneficiary status just because of the spouse’s gender.”
However, in January of this year, the court ruled in favor of the Korean National Health Insurance Service. The court decided, "Examining all the precedents of the civil law, the Supreme Court, and the Constitutional Court, as well as the general perception of our society, the union of a man and a woman is considered the fundamental element in marriage, and there are no grounds for expanding this interpretation to the union of the same sex. The court added, “In the end, the marriage system is a matter of legislation in principle, as it is a determinant of socio-cultural implications. With the absence of specific legislation in the country, the significance of marriage cannot be expanded to same-sex unions only with the interpretation of individual statutes.
On Thursday, October 13, Kim Yong-min and So Seong-wook attended the State Inspection of the Health and Welfare Committee and testified as witnesses. When Kang Eunmi from Justice Party asked about the incident, the head of the Korean National Health Insurance Service merely apologized, saying “We apologize for the confusion.” The Kim and So couple appealed the court ruling.
Cancelling the beneficiary status of the same-sex spouse is a civil rights violation
When the couple inquired with the NHIS back in 2020, the response was that the spouse of a de facto relationship was recognized as a beneficiary, and at that time, the couple was recognized as de-facto relationship. However, cancelling the beneficiary status through one phone call when the couple’s case became public through media confirms the fact that the decision was political and discriminatory, not administrative. In addition, the NHIS’s purpose of recognizing spouses in de facto relationships as beneficiaries is to ensure that as many people as possible receive health insurance benefits. This is a clear violation of civil rights that limits the right to equally receive health insurance as heterosexual couples do.
Moreover, the reason behind the Seoul Administrative Court’s ruling against the spouse is cowardly. The court is laying the responsibility to resolve the matter on the legislature, suggesting that this, in principle, is a matter of legislation. However, Cha Seonja, a professor at Chonnam National University Law School, who attended the first trial as an expert witness in family court, said, “The de facto marriage in the civil law (which only recognizes heterosexual marriages) and the de facto marriage in social security come from different backgrounds, therefore they must be interpreted differently. As social security should be interpreted in a way that guarantees individual rights as much as possible, I believe that it is in accordance with the purpose of the social security system to recognize the same-sex de facto marriage as much as possible.” As Professor Cha argues, the ruling is entirely on the court that determines whether to comply with the civil law or to guarantee maximum social security. The court's ruling is a cowardly one that lays the responsibility on the legislature, contrary to the institutional purpose of the NHIS's recognition of de facto marriages in efforts to guarantee people's right to health to the greatest extent.
While the legislature and the judiciary turn their backs on the basic rights of same-sex couples, same-sex couples face harsh discrimination, with their rights being violated, when they are supposed to be protected by the state, not to mention the day-to-day discrimination. The Justice Party representative Kang Eunmi pointed out at the previous the State Inspection, “A number of other countries have given priority to medical insurance, pension, and visitation right for hospital admissions in efforts to protect basic rights and prevent discrimination, even though same-sex marriage is not legally recognized.” Same-sex couples experience serious discrimination in the health and death of their spouses and the fear that comes after. Same-sex couples are citizens of the Republic of Korea and have the right to a healthy life. The decisions of the Korean National Health Insurance Service and the court’s ruling of the first trial were discriminatory.
This is a clear violation of civil rights that limits the right to equally receive health insurance as heterosexual couples do.
A New Aspect: 'Principle of Equality'
On November 4, we heard from the court that reversed the scene! The court from the second trial requested the Korean National Health Insurance Service to submit an opinion, questioning what difference there is between a same-sex couple and a heterosexual couple. Currently, in South Korea, heterosexual couples in de facto relationships are recognized as beneficiaries at the discretion of the NHIS, although they are not legally married. In light of this reality, the court viewed that the same principle of equality should be applied to same-sex couples.
As stated by the court of the second trial, the main issue in this case is not whether to recognize same-sex couples as de facto marriages. The cause of this case was a discriminatory administration rooted in the prejudice that same-sex and heterosexual couples are inherently different. We call for a progressive decision from the court, and hope that the basic rights of same-sex couples will be protected.
English Translation: Juyeon
Translation review: 동치
Writer of the original text: 레이
Review and amendments to the original text: Miguel
References (available in Korean)
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