National Human Rights Commission of Korea Annual Report 2020 The petitioner, who was a staff sergeant in the Army at the time, had undergone a male-tofemale transgender surgery while in service. The petitioner filed a petition that, though there are no laws or regulations on unfavorable dispositions of soldiers who undergo transgender surgery while in active duty, the petitionee used the mental disorder criteria under the Enforcement Regulations of the Military Personnel Management Act to make a medical evaluation of the victim and hold a Discharge Deliberation Committee session to discharge her, a decision that the petitioner found unjustified. The Commission examined the case and concluded that, though the decision to discharge should have been based on the premise that the victim’s health conditions at the time fell under the scope of ‘mental handicap,’ the Military Personnel Management Act does not provide for a separate definition of mental handicaps, and referring to Article 2 of the Act on the Prohibition of Discrimination of Disabled Persons, Remedy Against Infringement of their Rights, etc. and Appendix 1 of the Enforcement Regulations of the Military Personnel Management Act, nowhere can a basis be found that a person undergoing transgender surgery for the purpose of gender alignment falls in the category of persons with mental disorders. It is also the general view of international mental health organizations that gender nonconformity is not a mental disorder, and even from a physical functioning perspective, undergoing a certified medical surgical method for gender alignment does not lead to physical damage, functional disability, or functional loss. As such, the Commission concluded that the petitionee discharged the victim based on an arbitrary interpretation of transgender surgery as a condition for mental disorder , and that the decision lacks a clear, legal basis. Even if the discharge decision were legally supported, the petitionee had failed to prove that the transgender surgery had reduced the victim’s combat power to such a degree that her performance of active duty was irreversibly hampered. The reason given by the victim for not wanting to live on-base after the surgery is an issue that needed to be resolved through personnel administration actions, such as change of position, assignment of off-base lodging, or change of unit, but not a consideration to discharge the victim. Also, though the military distinguishes gender in the recruitment process, the benefit of making that distinction in force employment is not significant enough to believe that keeping the victim would be a well-intentioned path to harm. Thus, the Commission determined that the petitionee’s decision to discharge the victim is a violation of the victim’s right to pursue happiness and freedom to perform a vocation. 92