성적지향을 포함한 차별금지법안에 대한 비판적 접근: 영미법제 연구를 중심으로

Continuous trials to adopt anti-discrimination law with sexual orientation as a basis of discrimination have faced hurdles and remained as standstill. This research focused on analysis of problems of anti-discrimination bills, investigation of anti-discrimination laws and related court cases of Anglo- American countries, and suggestion for better legislation. First, sexual orientation in the Korean bills is pointed out as the vague and over-broad concept as a basis of discrimination. The concept of sexual orientation under National Human Right Commission Act, including sexual preference, sexual conduct and gender identity, has collided with traditional ethics and morale of Korean society, and Korean legal regime regulating non-forced sexual conducts. The coverage of discriminatory behavior is so overbroad to extend to verbal expression and indirect discrimination without discriminatory intent, thereby causing abridgment of freedom of expression, speech, and exercise of religion. Next, Anglo-American laws and cases justifying restriction on freedom of expression, speech, and exercise of religion are examined. On the other hand, efforts to make balance by upholding freedom of speech and exercise of religion through legislation and cases were studied, such as Religious Freedom Recovery Act of Indiana state and Sandra Glowacki v. McDowell. In order to resolve current standstill, it would be better to suggest an alternative bill including eliminating sexual orientation (or limiting its meaning on sexual preference), narrowing down the coverage of discriminatory conduct, and extending defenses or statutory exemption for protection of freedom of speech and exercise of religion. As the last measure, separate bills dealing with each discriminatory basis except sexual orientation should be made if continuous persuasion with patient attitude toward opposition groups fails.