The National Human Rights Commission of Korea recommends a revision of regulations on military physical examinations for transsexual conscripts.
The National Human Rights Commission of Korea (NHRCK) released recently a recommendation concerning the physical examinations for transsexual men called for mandatory military service in Korea. This recommendation made to the Military Manpower Administration and the Minister of National Defense came in response to a complaint submitted by a transgender male, who suffered humiliation during his physical examination for mandatory military service.
The complainant, a 29-year-old male named “Kim,” submitted his complaint to the Commission during February of 2007, after his required physical examination for mandatory military conscription. The complainant reported his change of sex on his family registry with court permission and argued in his complaint that “A doctor in charge of conscripts ordered me to pull down my pants to examine my genitalia, which was in violation of my personality rights, especially because I had submitted sufficient materials for the physical checkup indicating my sex, including a written court decision and diagnosis.”
The respondents, the Commissioner of the Military Manpower Administration and the Minister of National Defense, defended the nature of the examination during the Commission’s investigation. The doctor in charge stated, “The regulations require all body parts be inspected internally and externally during a conscription physical checkup. A medical examination of body parts that might cause a sense of shame to examinees, such as a urological checkup, can be conducted in a separate room. At the time of the examination, I fully explained the necessity of the physical checkup to the complainant and obtained his consent. Then, I carried out a visual examination in a secluded space.” The examiner went on to say, “The written court decision and diagnosis were required to ensure objectivity in determining the physical grade. If such judgment is made merely based on attached documents without a checkup of physical conditions, it would violate the principle of precision in medical examination.”
In June 2006, the Supreme Court released the first positive ruling for transgenders and transsexuals. The ruling stated that there was sufficient leeway to permit modification of the family registry for a person that had undergone a female-to-male sex change operation. This ruling amends previous negative rulings.
If a family register is adjusted from female to male, the person must report for military duty upon reaching conscription age. This is stated in the Military Service Act. As of June 2007, four transsexual males that had modified their family registries—including the complainant—were subject to physical examinations for conscription.
The Commission discovered through investigation that the Military Manpower Administration had been applying the provision on ‘missing or retractile testicles’ among the urological provisions of the Ministry of National Defense Ordinance, titled, ‘Examination Rules Including Conscription Physical Checkup Rules.’ These Examination Rules are currently used as criteria for determining physical grades for conscripts. However, the Examination Rules do not include any provisions regarding transgender or transsexual persons.
Although the visual examination of the complainant in the conscription physical checkup cannot be regarded as an unlawful act, the Commission determined that the complainant’s physical examination may have been an infringement upon his personal rights, stipulated in Article 10 of the Constitution. The reasons for this conclusion were that (i) requiring a conscript to expose his genitalia was an act that could cause a severe sense of shame, even despite the fact that such examination was necessary for a doctor's diagnosis. In particular, such act may cause a more serious sense of shame to the complainant, who has a unique medical history and physical conditions unlike ordinary draftees; (ii) the court issuance of family register modification should be adequate evidence for assessing the complainant’s mental and physical status; (iii) other transsexual conscripts that had reported for the physical examination were subjected to a visual examination of genitalia, and had provided reference materials including written court decisions and diagnoses or CT scans used for determining physical grade; and (iv) the physical status of the complainant could have been checked by such indirect means as CT scanning.
The Commission also determined that this conflict occurred due to the lack of regulation. Under these circumstances, the Commission recommended that the Minister of National Defense and the Commissioner of the Military Manpower Administration amend the ‘Examination Rules Including Conscription Physical Examination Rules’ to minimize the sense of shame for transgender or transsexual conscripts in order to prevent future similar events.
The Military Manpower Administration indicated that it would soon formulate standards to accommodate the situation of transgender and transsexual conscripts.
The National Human Rights Commission of Korea was established in 2001 to promote human rights education and defend those who have experienced discrimination, or have had a right violated, in Korea. The Commission offers counseling, full investigation and protection for citizens, along with educational initiatives for organizations.
