Court Orders Cancellation of Former Sergeant Byeon Hee-soo's Discharge... "Judgment Based on Male Sexual Characteristics Is Illegal" (Comprehensive)

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] A court ruling has declared that the military authorities' decision to discharge the late Corporal Byeon Hee-soo, who underwent gender reassignment surgery, on grounds such as physical disability was unlawful.

The ruling stated that judging whether Byeon, who had already completed gender transition registration in a context where gender transition through surgery is permitted, had a mental or physical disability based on male standards was illegal.

On the 7th, the Administrative Division 2 of the Daejeon District Court (Presiding Judge Oh Young-pyo) ruled in favor of the plaintiff, ordering the cancellation of the discharge decision in the case where the late Corporal Byeon had filed a lawsuit against the Army Chief of Staff during his lifetime.

The court first recognized that the bereaved family of the late Corporal Byeon could assume the plaintiff status in this lawsuit despite his passing after filing the suit.

Previously, the Army argued that the cancellation of discharge was a matter solely attributable to Corporal Byeon and that no one else could inherit plaintiff status. In contrast, the bereaved family contended that as legal heirs inheriting rights to claim unpaid wages, they should succeed the lawsuit.

The court stated, "In principle, the status as a soldier is a personal right that does not transfer by inheritance."

However, the court concluded that "it is reasonable to apply the legal principles concerning the interest in litigation to the succession of this lawsuit exceptionally," citing reasons such as ▲the plaintiff can recover wage claims if the discharge is canceled, thus having a legal interest, ▲there is a risk of repeated unlawful dispositions for the same reason due to gender identity confusion and gender reassignment surgeries, making confirmation of illegality necessary, and ▲directly judging the illegality through this lawsuit is more appropriate for the plaintiffs' relief and guarantees their right to a prompt trial.

Next, the court ruled that it was unlawful to assess whether the late Corporal Byeon's condition after gender reassignment surgery constituted a mental or physical disability under the Military Personnel Act based on male sexual characteristics rather than the transitioned female gender.

The court considered ▲that gender transition or correction through surgery is permitted, ▲that Byeon's gender after surgery can be evaluated as female, ▲that Byeon applied to the court for registration correction (gender correction) immediately after surgery and reported this to the defendant, who was well aware of these facts at the time of the disposition, and ▲that the court later approved the registration correction changing Byeon's gender from male to female. Therefore, the court stated that the judgment on whether Byeon had a mental or physical disability should naturally be based on the transitioned female gender.

The court explained, "Therefore, the disposition in this case, which regarded Byeon's condition after gender reassignment surgery as a mental or physical disability under the Military Personnel Act based on male sexual characteristics such as penile loss and testicular absence, is unlawful and must be canceled without further examination."

However, the court added, "In cases like Corporal Byeon, who enlisted as a male soldier and became female through gender reassignment surgery during military service, whether she qualifies for other mental or physical disabilities as a female, whether she is fit for active duty as a transitioned female, or whether continued active duty is permitted, should follow relevant laws and their application. Ultimately, considering the military's uniqueness, manpower management, national defense and societal impact, basic human rights of sexual minorities, and public opinion, these matters should be decided legislatively and politically at the national level."

Byeon, who belonged to an army unit in northern Gyeonggi Province, underwent gender reassignment surgery abroad during leave in 2019 and returned, hoping to continue service.

However, the military conducted a mandatory physical examination regarding Byeon's bodily changes, diagnosed a Grade 3 mental or physical disability, and decided on discharge in January last year.

Byeon filed a personnel appeal with the Army Headquarters in February last year, requesting a re-examination, but the Army rejected it, stating that "the discharge decision was lawfully made according to the mandatory examination standards and discharge review procedures stipulated in the Military Personnel Act."

Subsequently, with the help of the "Joint Countermeasure Committee for the Reinstatement of Transgender Soldier Byeon Hee-soo," Byeon filed a lawsuit to cancel the discharge decision at the Daejeon District Court, which has jurisdiction over Gyeryongdae, on August 11 last year.

However, Byeon was found dead at home in March before the first hearing, and the bereaved family inherited plaintiff status and continued the trial.

This trial attracted significant attention throughout the proceedings as it intersected with LGBTQ+ human rights issues.

In July, over 4,000 citizens submitted a petition urging Byeon's reinstatement, and last month, 22 members of the National Assembly along with former Supreme Court justices and social elders expressed opinions that the discharge decision should be canceled.

This content was produced with the assistance of AI translation services.