A South Korean court has ruled that the military unlawfully discriminated against the country's first known transgender soldier by discharging her for undergoing gender reassignment surgery.
The landmark verdict came seven months after Byun Hui-su was found dead at her home.
Activist groups said the decision by the Daejeon District Court advances the rights of sexual minorities but also described it as delayed justice for Byun Hui-su, who had protested against the army's decision to force her out.
South Korea prohibits transgender people from joining the military but has no specific laws on what to do with those who have sex reassignment operations during their time in service.
Byun Hui-su, who had been a staff sergeant and tank driver, was discharged in January 2020 after the army concluded that her operation could be a reason for dismissal.
The army then cited a law that allows the military to discharge personnel with physical or mental disability if those problems did not result from combat or in the line of duty, and said Byun Hui-su's loss of male genitals amounted to a disability.
Byun Hui-su, who said she had sex reassignment surgery in Thailand in November 2019 after suffering depression over her sexual identity, expressed a desire to continue serving but a military panel rejected her appeal.
She filed a lawsuit against the military in August 2020, and her relatives inherited the suit after she was found dead at her home in the central city of Cheongju in March this year.
The Daejeon court said the army's decision to discharge Byun Hui-su could not be legally justified because it was based on an assertion that she was male.
The court pointed out that the army already knew Byun Hui-su had applied to the Cheongju District Court to change her legal status as a woman before it decided to discharge her.
The Cheongju court granted Byun Hui-su's request weeks after she 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 Hui-su) was a woman following gender reassignment," the Daejeon court said in a statement explaining its ruling.
"Therefore, the (army's) conclusion that Byun Hui-su's loss of (her male genitals) amounted to physical and mental disability, which was based on the premise that Byun Hui-su was male even after gender reassignment surgery, is undoubtedly illegal and should be cancelled," it said.
Byun Hui-su's plight struck a nerve in a deeply conservative country where transgender people and other sexual minorities often face harassment, abuse and discriminatory treatment, leaving many fighting depression.
A coalition of human rights groups, including the Centre for Military Human Rights Korea, issued a statement saying that the ruling created hope for sexual minorities and urged the military not to appeal.
"Staff Sgt Byun Hui-su should be smilingly brightly now after the court victory and going back to her colleagues, but she is no longer here," the statement said.
"The ruling today is a legal triumph that that corrected unjust discrimination, but it's also a painful lesson in delayed justice."
In a text message sent to reporters, the army said it respects the court's ruling and will hold "comprehensive" discussions on how to respond.
The army said it has not decided whether to appeal.
At the time of Byun Hui-su's death, Seoul's Defence Ministry expressed condolences but said the military had no ongoing discussions about allowing transgender people to serve.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules here