hankyoreh

Members of LGBTQ rights groups hold a press conference in front of the National Human Rights Commission of Korea in November 2022 to call for the abolition of the requirement of gender-affirming surgery for trans people to change their legally recognized gender. (Kang Chang-kwang/The Hankyoreh)

South Korean courts have recently been ruling to allow transgender people to amend their legal gender status without undergoing gender-affirming surgery (GAS) first.

In the past, Supreme Court precedents and other existing regulations have adopted GAS as an important factor in determining whether to grant gender status amendment permissions. But recent court judgments have been taking another step forward.

Civil society has been raising the need for legislation to ensure consistency in legal gender status amendment standards, which are currently left up to the discretion of individual courts.

According to the Hankyoreh’s investigation Monday, several courts have recently issued rulings permitting amendment of legal gender status for transgender people who have not undergone surgery to remove their reproductive capacity, sometimes referred to with the umbrella term of bottom surgery.

The first of these judgments came in October 2021 in an appellate case before the Suwon Family Court, which allowed a trans man to amend his legal gender without undergoing a hysterectomy.

The man in question was assigned female at birth and subsequently underwent hormone replacement therapy with testosterone, but has not undergone a hysterectomy or other gynecological procedure or altered his external genitalia.

In his first trial, the court rejected his request to amend his legal gender status on the grounds that he had not undergone surgery to remove his reproductive capacity. But in the appellate trial, the court permitted the amendment without the surgery, citing the fact that he clearly identified as a man.

“To demand a hysterectomy or other procedure would be forcing him to damage the body’s integrity in order to have his gender identity recognized,” it concluded.

Previously, the Seoul Western District Court ruled in November 2013 to permit a trans man to amend his legal gender after having undergone surgery to remove reproductive capacity but not to alter his external genitalia. The Suwon Family Court went a step further in concluding that a person could amend their legal gender status without surgery to remove reproductive capacity either.

A similar stance was reflected in a judgment last February for a trans woman who was assigned male at birth and had not undergone the removal of her reproductive capacity.

In an appellate trial, the Seoul Western District Court granted permission for her to amend her legal gender status, concluding that “genitals are merely one element in evaluating a body’s external appearance, not an essential one” when it comes to making gender identity determinations.

The woman in question had similarly received an initial trial judgment denying her amendment request on the grounds that she had not undergone surgery. The appellate court’s more progressive ruling enabled her to legally amend her gender status.

In a telephone interview with the Hankyoreh, Jang Se-yeon, an attorney with the GongGam Human Rights Law Foundation who represented the woman, explained, “The court granted the gender amendment request in consideration of factors such as [the woman’s] long history of undergoing hormone therapy, the fact that she has been living as a woman with her family and in society, and the fact that she has a firm gender identity as a woman.”

But in spite of these more progressive court judgments, GAS continues to be regarded by courts as a key standard in determining whether to grant amendments of legal gender status.

As a reason for the differences in courts’ judgments on whether to allow amendment of legal gender status, legal analysts pointed to variations in how they interpret Supreme Court precedents and other rules.

In June 2006, an en banc ruling by the Supreme Court allowed a first-ever amendment of legal gender status for a trans woman who had undergone GAS. The court subsequently used that ruling as a basis in establishing rules to serve as guidelines for other courts hearing gender status amendment cases.

The rules state that courts should “consider” questions such as whether the individual in question has undergone GAS to alter their body’s outward appearance — including genitalia — to that of their affirmed gender and whether they have lost their reproductive capacity.

On that basis, some courts have adopted the position that GAS is necessary for legal gender status amendments, while others have maintained that GAS is only one of many factors to consider.

These varying standards between courts have led to cases where a transgender person whose amendment request has been rejected by one court reapplies after transferring their address to a region under the jurisdiction of a more “favorably inclined” court.

Civil society has been calling for legislation to resolve the legal gender status amendment issue. According to this position, standards for permissions should be defined by law rather than being left to the discretion of courts.

In November 2022, an en banc ruling by the Supreme Court granted gender amendment permission for a transgender person who was also the parent to an underage child. A supplementary opinion by Justices Kim Seon-soo and Oh Kyeong-mi urged, “To truly resolve the difficulties experienced by transgender people and rectify infringements of their fundamental rights, the positions of transgender people and their family members should be reflected in institutional terms through legislation.”

Park Han-hee, an attorney with the group Hope and Law, explained, “Since the matter has been left to be determined by internal court guidelines, permissions are based on the discretion of individual judges.”

“There have been discussions along these lines taking place among the courts too, but there need to be legislative discussions at the National Assembly level,” she stressed.

By Shin Min-jung, staff reporter

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