World AffairsSociety
The Right to ServeByun Hee-su, transgender and former Staff Sergeant
Kim Chae-yoon  |  emilyy1125@gmail.com
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승인 2020.03.13  01:16:27
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THE SOUTH Korean military has been infamous for forcing its members to follow strict gender and sexual regulations, but a transgender Staff Sergeant Byun Hee-su has challenged these norms and requested to serve after her gender reassignment surgery. Although the military has declared her condition a mental impairment and dismissed her, Byun and civil rights groups are suing to reinstate her to the army and to change how transgenders and sexual minorities are treated in the military. 

 

A Level-3 mental impairment

   Staff Sergeant Byun Hee-su was a well-trained soldier in the Korean military, receiving top marks as a tank driver*. Byun visited Thailand during her leave to receive gender reassignment surgery, becoming the first South Korean soldier to declare her wishes to continue service after reassignment surgery. In response, on January 22, the army dismissed her immediately, refusing to grant the usual time designated for personnel to settle affairs and find a place to live. A military authority told JoongAng Ilbo that although her sexual identity is not an issue, “the injury from her surgery could potentially cause problems in performing her duties as prior.”

   On the same day, Byun spoke out against the military’s decision at a press conference by the nonprofit Center for Military Human Rights Korea (CMHRK). “It has always been my dream to protect my country and people as a soldier,” Byun said at the press conference. “I suppressed my confusion about my sexual identity and served each day thinking of this dream [….] But my depression worsened due to gender dysphoria**, and I felt that despite that dream I couldn’t continue to serve as I was.” She thanked her unit for encouragement and support for her choices. Its members had constantly recommended to higher command that Byun be allowed to serve even after surgery. Byun also said, “I am aware the military isn’t ready to accept transgender soldiers, including me. But it is developing progressively to respect human rights.”

   In response to Byun’s case, the Ministry of Defense modified Article 53 of the Military Personnel Management Act on Jan. 23 to add Clause 4, which decrees that “in the case where the mental disability in question does not directly impede the performance of one’s duties” soldiers could be able to continue serving upon review by a discharge review committee***. Popularly referred to as the “Byun Hee-su law,” this clause is a step towards allowing male-to-female transgenders to openly serve in the military even after reassignment surgery. However, this modification only goes in effect for prospective soldiers, thus preventing Byun from returning to service. Article 53-4, the original cause for Byun’s dismissal, remains intact. 

 

Serving in silence: sexual minorities in the military

   The Korean military has not been a friendly place for sexual minorities. In interviews with Amnesty International, many former soldiers recalled having been slandered and threatened for just looking or acting effeminate****. One of the worst recent cases of discrimination against sexual minorities was the 2017 “Sexual Minority Witch Hunt” in which 23 soldiers were charged and put under investigation; another 10 sailors from the navy were charged in 2018. The rule they allegedly violated was Military Criminal Act Article 92-6, which problematizes “anal sex and other such assault,” punishable with up to two years of imprisonment with labor. Although the law had existed since 1960, it had received little attention as it only goes into effect when authorities deem it necessary to investigate. In effect, this clause criminalizes all individuals involved in intercourse, even if the act was consensual or performed when off-duty or on leave. Several victims of this witch hunt took the case to the supreme court, claiming Article 92-6 was unconstitutional—a case that is still pending*****. Although only nine of those convicted were brought to court, the others reported having received discrimination such as exclusion from promotion. Criminalization is only applicable within the military and therefore to a small segment of society. But as approximately half of the population goes through compulsory military service criminalization has a significant impact. It creates an environment where discrimination is tolerated and even encouraged based solely on who someone is. Many former and current soldiers consider this to be toxic****. 

   The Korean military has rarely distinguished transgenders from the broad category of sexual minorities in its discrimination, but one regulation that affects transgenders deems gender dysphoria a mental disorder significant enough to keep one from mandatory service. One such lawsuit occurred between a transgender woman and the military in 2014. The Hankyoreh reports that in June 2005, the Seoul Military Manpower Administration (MMA) exempted a transgender woman from mandatory service. She received mental treatment for over 14 months for gender dysphoria and had undergone facial surgeries to make her features more effeminate. Nine years later, however, the Seoul MMA retracted its statement, claiming that as she had not undergone gender reassignment surgery and thus had no proof that she was a transgender woman. Although the military lost the court case, little appears to have changed since then in the prioritizing of physical genitalia. Lim Tae-hoon, head of the CMHRK, noted in an interview that the army could have dismissed Byun based on her gender dysphoria or hormone treatment, but decided to stigmatize her lack of male genitalia instead******. Lim also claimed in this interview that such focus is further evidence of the military’s obsession with maintaining a homogenous cis-male culture even at the price of losing valuable trained assets.    

 

*                  *                 *

 

   Byun has declared during her press conference she will struggle until the day she returns to the army, and many are acting in support of her courageous decisions*******. The CMHRK is calling for defense counsel to revoke her forced discharge via lawsuit and grant Byun’s wish to continue her service as a female soldier. They report that many lawyers have personally contacted them to offer their services for Byun’s upcoming lawsuit against the military. Citizens have contributed money to support her case and have met 88% of their fundraising goal as of February 14. Multiple sexual minority support organizations such as Rainbow Action Against Sexual Minority Discrimination of Korea and Solidarity of University Queer Societies in Korea (QUV) have released official statements supporting Byun’s case on social media. On Feb. 10, the Chungju District Court officially recognized Byun’s gender as female*******. Now that she is legally a woman, the level-3 impairment Byun received for damage to her sexual organs is inapplicable. The CMHRK claims that there should now be no restrictions to Byun’s rejoining the army as a female soldier. The military has yet to respond to this development. 

   The modification of the law indicates that the military is willing to make changes against discrimination. However, the military continues to be a dangerous place for sexual minorities while laws such as the mental impairment clause and Article 92-6 persist. The outcome of Byun’s trial and the military’s decision will set a clear precedent for legal and societal attitudes towards sexual minorities. 

 

*The Hankyoreh

**Gender dysphoria: distress a transgender person experiences due to the disconnect between their gender identity and physical sex; this often causes depression and immense stress

***Donga Ilbo

****Amnesty International report, Serving in Silence Executive Summary

*****Sisa IN

******Traffic Broadcasting System, Kim Ji-yoon’s Evening Show

*******Center for Military Human Rights Korea

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