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| Soldiers sing a military song at a ceremony welcoming new recruits into the armed forces, Jan. 8, Gwangju. / Courtesy of ROK Armed Forces |
By Lee Suh-yoon
The military's recent decision to have the nation's first transgender soldier sent before a review panel that could recommend her discharge lacks sufficient legal grounds, human rights lawyers said Sunday.
Transgender people are banned from serving in the armed forces here but there are no specific regulations governing active-duty soldiers who undergo sexual reassignment surgery. So when military officials referred the soldier for a discharge evaluation, it was based on a legal argument that the soldier carried a "disability" following the sex change procedure.
Losing male genitalia is in fact included in the list of "physical and mental disabilities" specified by the Military Personnel Management Act. This classification, however, should not apply in transgender soldiers' cases, says human rights lawyer Park Han-hee.
"The cited physical disability is referring to male soldiers who are injured in the performance of their duty, not those who voluntarily have sex change operations," Park told The Korea Times.
Even if the panel recognizes the soldier's physical changes are not a disability, the chances of her being allowed to stay in the armed forces are slim. The soldier can be discharged on the basis of having a "mental disability," as the medical sector in Korea continues to classify transgenderism as a "gender identity disorder."
Park, however, says this argument is weak. Last May, the World Health Organization stopped classifying transgenderism as a "mental disorder," giving U.N. member states such as Korea until Jan. 1, 2022 to follow suit. The Military Personnel Management Act was also revised in 2013 to not explicitly mention "gender identity disorder" in its clauses.
The soldier, a sergeant at a camp in northern Gyeonggi Province, says she wants to continue serving as a female NCO once she fully recovers from the sex change operation. The military panel will deliver a decision Wednesday.
Sexual minorities have long been shunned or discriminated against in the Korean army. Sex between gay partners remains a crime under Article 92-6 of the Army Criminal Act.
Human rights lawyers and civic groups hope the decision will lead to the military's first recognition of a transgender soldier. Though this is the first time an active-duty soldier underwent the sex change surgery, there are many others who are also looking into medical and administrative options to make the transition inside the armed forces, according to the Center for Military Human Rights in Seoul.
Though there are no prior examples, discharging a soldier based on gender identity can be contested in court as workplace discrimination, Park says.
"If an employee is fired by a firm after sex change surgery, there is high likelihood that a court will see it as an unlawful action by the employer," Park said. "Likewise professional soldiers too are employees ― civil servants in the army."
Kim Hak-ja, a lawyer and former human rights coordinator for the Korean Bar Association, says the transgender soldier's case could provide a starting point for designing regulations that recognize a third gender.
"Sex change operations based on one's innate gender identity have to be recognized," Kim said. "However, we still lack special regulations that can do that due to the lack of public discussion on the rights of sexual minorities."
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