Minister Park Beom-gye directs to abandon appeal against the ruling canceling the discharge of late Sergeant Byeon Hee-soo

The late Corporal Byeon Hee-su.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] Regarding the first-instance ruling that ordered the cancellation of the discharge of the late Corporal Byeon Hee-soo as unlawful, Minister of Justice Park Beom-gye instructed the defendant, the Army, to forgo an appeal.

The Ministry of Justice announced that Minister Park, respecting the recommendation of the 'Administrative Litigation Appeal Advisory Committee' to forgo an appeal on this ruling, directed the Chief of Staff of the Army on the 22nd to abandon the appeal in accordance with Article 6 of the Act on Litigation Involving the State (State Litigation Act).

Earlier, the Ministry of Justice's Administrative Litigation Appeal Advisory Committee, composed of six external members including legal scholars and lawyers, and one internal member (Director of the Human Rights Bureau of the Ministry of Justice), after hearing opinions from the Army Headquarters litigation personnel and Ministry of Justice officials, comprehensively considered the facts and legal principles recognized in this case, the constitutional spirit respecting human dignity, and public sentiment, and recommended the Minister of Justice to direct the abandonment of the appeal.

Article 6 (Direction by the Minister of Justice to Heads of Administrative Agencies) Paragraph 1 of the State Litigation Act stipulates that "When conducting administrative litigation, the head of the administrative agency must follow the direction of the Minister of Justice."

The Ministry of Justice explained, "This ruling does not imply that transgender individuals must be recognized for military service, but rather that the discharge of the deceased, who was female at the time of the disposition, due to penile loss and testicular absence, is unlawful when viewed against relevant legal provisions."

It added, "Therefore, whether to recognize military service for transgender individuals should be legislatively and politically decided in the future, considering the revision of related regulations, the military's uniqueness and personnel management, the impact on national defense and society at large, and the national consensus."

Corporal Byeon, who belonged to an Army unit in northern Gyeonggi Province, underwent sex reassignment surgery abroad during leave in 2019 and returned, expressing a desire to continue service.

However, the military conducted a mandatory physical examination regarding Byeon's bodily changes, diagnosed a Grade 3 mental and physical disability, and decided on discharge in January of 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, "The discharge was lawfully conducted according to the mandatory review 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 at the Daejeon District Court, which has jurisdiction over Gyeryongdae, on August 11 of last year.

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

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 in the case filed by Byeon against the Chief of Staff of the Army.

The court first determined that the bereaved family could be recognized as plaintiffs in this lawsuit despite Byeon's death after filing the suit.

Previously, the Army argued that the cancellation of discharge was entirely attributable to Byeon, so no one else could inherit plaintiff status. In contrast, the bereaved family argued that they should succeed the lawsuit as heirs to the legal rights to claim unpaid wages and other entitlements.

The court stated, "In principle, the status as a soldier is a personal right that cannot be inherited."

However, the court concluded that "since canceling the discharge would restore the plaintiff's right to claim salary, there is a legal interest; there is a risk of repeated unlawful dispositions for those undergoing sex reassignment surgery due to gender identity confusion; and it is more appropriate and guarantees the right to a prompt trial to directly judge the unlawfulness through this lawsuit," thus applying the legal principle of interest in litigation to this succession case exceptionally and deeming the succession of this lawsuit lawful.

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

The court considered that sex reassignment or correction through surgery is permitted; that Byeon's gender after surgery could be evaluated as female; that Byeon immediately after surgery applied to the court for registration correction (gender correction) and reported this to the defendant, who was well aware of these circumstances 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's condition constitutes a mental and physical disability must naturally be based on the transitioned female gender.

The court explained, "Therefore, the disposition in this case, which regarded Byeon's post-surgery condition as a mental and 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 Byeon's, who enlisted as a male soldier and underwent sex reassignment surgery during military service to become female, whether other mental and physical disability reasons apply as a female, whether the transitioned female is fit for active duty, or whether continued active duty is permitted, should follow the content and application of relevant laws and regulations. Ultimately, these issues should be legislatively and politically decided at the national level, comprehensively considering the military's uniqueness and personnel management, the impact on national defense and society, the fundamental human rights of sexual minorities, and public opinion."

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