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S. Korea court backs transgender soldier who killed herself

October 7, 2021

Byun Hui-su is reported to have died by suicide after she was discharged from the military. Months after her death, the court told the army to recognize the soldier as a woman and annul her dismissal.

South Korean army Sergeant Byun
Byun, 23, was a staff sergeant and tank driver who had gender reassignment surgery abroad then asked to transfer to a women's corpsImage: Ahn Young-joon/AP Photo/picture alliance

A South Korean court on Thursday ruled that the military unlawfully discriminated against a transgender soldier by discharging her for undergoing gender confirmation surgery.

The landmark decision by the court came seven months after Byun Hui-su reportedly took her own life.

Byun, a staff sergeant, wanted to transfer to the military's female corps after undergoing the surgery in Thailand. Instead, she was dismissed on the grounds that the loss of male genitalia rendered her "disabled" and unfit for service.

The court has asked the Army to reverse its decision and recognize Byun's legal status as a woman.

Army's decision 'illegal,' court rules

In January 2020, the army cited a law that allows the military to discharge personnel with physical or mental disability if those problems didn't result from combat or in the line of duty. It used that law to dismiss Byun on the grounds that her loss of male genitals amounted to a disability.

In Thursday's ruling the Daejeon District Court found that the army's decision couldn't be legally justified because it was based on an assertion that Byun was male, even though she had already applied to have her sex legally changed.

The Army was notified about the application, and the Cheongju court granted the request weeks after Byun was discharged.

"In deciding whether Byun Hui-su's case could be interpreted as a physical and mental disability as defined by the military personnel law, it's obvious that the decision should have been based on the premise that [Byun] was a woman following gender reassignment,'' the Daejeon court said in a statement explaining its ruling.

"When based on standards of women, there are no mental or physical disability grounds for dismissal," the court said.

Delayed justice

Byun had the sex reassignment surgery in Thailand in November 2019 after her mental health deteriorated over her sexual identity. Byun had applied to be recognized legally as a woman in South Korea, with a verdict in her favor following soon after the discharge.

After being forced out from the Army, Byun gave a tearful appeal.

"I want to show everyone that I can be a great soldier. ... Please give me that chance," she said at the time. 

She filed a lawsuit against the military in August 2020, but the 23-year-old was found dead in her home in Cheongju on March 3.

Byun's relatives inherited the suit, which ended with the verdict issued by the Daejeon court.

Activist groups described the decision as delayed justice for Byun, but said it could advance the rights of transgender people.

"The ruling today is a legal triumph that corrected unjust discrimination, but it's also a painful lesson in delayed justice," a coalition of human rights groups, including the Center for Military Human Rights Korea, said in a public statement after the ruling.

South Korea does not allow transgender people to join the military, but has no specific laws pertaining to soldiers undergoing sex reassignment operations. 

The army is yet to decide on whether it will appeal the decision.

In a statement shared with reporters, the army said it respected the court's ruling and would hold "comprehensive" discussions on how to respond.

A period of military service is mandatory for most young men in South Korea, with conscription in effect since 1957, soon after the end of the Korean War. Women are allowed to volunteer for military service but are not obliged to.

go/msh (AFP, AP, Reuters)