간성(intersex)에 대한 헌법적 논의를 위한 시론

This article introduce the legal issues of intersex people in order to suggest the need for constitutional discussion on the legal status and rights of intersex people. The legal discussion of intersex people have centered on two main issues: first, the issue of the human rights violations of forced so-called 'sex-normalizing' surgeries on intersex children, and second, the legal recognition of intersex people. In South Korea, the former is rarely discussed, and only a few cases of legal gender recognition by court can be found. In light of the need for a constitutional studies, the legal discussion should be organized as follows. First, the legal rights of intersex people need to be discussed in terms of fundamental rights. This should be followed by an examination of individual fundamental rights, focusing on two issues that are being addressed as violations of the fundamental rights of intersex people: the issue of forced genital surgery without consent and the issue of legal sex and gender mark. Second, it is necessary to discuss how to interpret human “gender” as the subject of the fundamental rights assumed by the Constitution. This is not only an interpretation of the individual provisions of the Constitution related to gender, but also a question of how to interpret areas or objects that the Constitution did not foresee. Third, there is a need for specific legal research on the legal status of intersex people including the criteria for legal gender recognition and the possibility of legislating a “third gender”. Fourth, the recognition of intersex rights is beginning to be accepted as a call for international human rights law, which will require domestic discussion in accordance with the Constitution's respect for international law.