Court: "If judged mentally female, considered female"
International community also moves toward simplifying gender correction process
Recently, a court approved a transgender woman's request to change her legal gender without undergoing gender reassignment surgery.
For transgender individuals to change their legal gender on their resident registration, they must go through a court trial and obtain approval from the court, which requires meeting certain criteria set by the court. However, due to the complicated procedures, legal gender changes have been regarded as a formidable barrier for transgender people.
According to the current administrative guidelines on handling cases such as gender change approval for transgender individuals, the Supreme Court's criteria for gender change approval include: ▲ being at least 19 years old and legally competent ▲ having completed gender reassignment surgery, including removal of reproductive capability ▲ not being married, among others.
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The problem is that genital surgery is effectively required as an essential condition for legal gender change. Although Article 6 of the administrative guidelines lists gender reassignment surgery and loss of reproductive ability as "reference matters," there has been criticism that many courts actually treat them as "approval conditions." Due to the stringent procedures, many cases have seen transgender individuals effectively giving up on legal gender change, leading LGBTQ+ rights organizations to argue that this infringes on transgender rights.
However, recently, courts have approved gender change requests without requiring surgery to alter the appearance of the genitals. Instead of uniform criteria such as surgery status, rulings are being made considering the specific lives of transgender individuals.
According to the Gonggam Public Interest and Human Rights Foundation, on the 15th of last month, the 2nd-3rd Civil Division of the Seoul Western District Court (Presiding Judge Woo In-seong) ruled that transgender individuals can change their legal gender even without undergoing gender reassignment surgery. Ms. A, a transgender woman who was assigned male at birth, recognized herself as female from a young age. Since 2015, when she was 17 years old, she has consistently undergone hormone therapy and lived daily life as a woman.
However, the first trial court dismissed Ms. A's request for legal gender change, citing concerns that her lack of gender reassignment surgery could cause social confusion, disgust, discomfort, and embarrassment.
Ms. A appealed, and the appellate court approved the gender change. The appellate court stated, "The appearance of external genitalia should not be considered an indispensable factor in evaluating gender identity," and added, "If all other aspects, especially the mental domain, clearly indicate female identity, it is appropriate to recognize the individual as female."
The court also noted that gender reassignment surgery against the individual's will violates human dignity. The court explained, "Even though hormone therapy alone can alleviate gender dysphoria, if physical alterations beyond what is necessary to relieve gender dysphoria are demanded against the person's will, it is no different from Procrustes' bed, which cuts or stretches a person's legs to fit a certain size," and emphasized, "Human dignity starts with respecting the integrity of the individual."
This is not the first time a court has approved a transgender person's legal gender change without gender reassignment surgery. In October 2021, the 2nd Family Court of Suwon granted legal gender change to Mr. B, a transgender man who had not undergone surgery to remove reproductive capability. Mr. B began recognizing his gender identity as male around the third year of middle school and started male hormone therapy in 2018 after being diagnosed with gender dysphoria. He underwent bilateral mastectomy but did not have a hysterectomy.
Meanwhile, internationally, there is a movement to simplify the legal gender change process. It is viewed as a matter of self-determination, and deemed necessary to protect transgender rights.
In February, the Finnish Parliament passed a bill allowing transgender individuals aged 18 and over to legally change their gender through self-declaration without medical or psychiatric approval procedures. In Spain, a transgender rights law was passed last December allowing anyone aged 16 and over to change their legal gender without medical supervision.
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