On October 25, 2023, Japan’s Supreme Court ruled unconstitutional a condition under a law requiring a person to undergo surgery before they can legally change their gender to one different from their registered gender. (2020 (ku) No. 993.)
The Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder first defines “a person with gender identity disorder” as a person who wishes to change their legal gender status and has received concurrent diagnoses affirming their physical, psychological, and social identification with the gender opposite to the gender assigned at birth “from two or more physicians equipped with the necessary knowledge and experience to give accurate diagnoses on this matter, based on generally accepted medical knowledge.” (Act No. 111 of 2003, as amended in 2011, art. 2; the act has been since amended.) The act then lists the following conditions for a legal gender change:
1. Being 18 years old or older.
2. Not being currently married.
3. Having no minor child.
4. Having no reproductive glands or having reproductive glands that have permanently lost function.
5. Having a body that appears to have parts resembling the genital organs of those of “the opposite gender.” (Art. 3, para. 1.)
The Supreme Court case centered on the fourth condition mentioned above, which essentially requires individuals to remove their ovaries or testicles by surgery.
The plaintiff in this case was a transgender woman who has lived socially as a woman but has not undergone gender affirmation surgery. The plaintiff argued that the fourth and the fifth conditions mentioned above violate articles 13 and 14 of the Constitution of Japan.
Article 13 of the constitution states that people must be respected as individuals and guarantees an individual’s right to pursue happiness. Article 14 guarantees equality of people.
The plaintiff lost her case in the lower courts. The Supreme Court, however, decided that the fourth condition violated article 13 of the constitution and remanded the case to the lower court so that it could further examine the constitutionality of the fifth condition.
The Supreme Court acknowledged that, since the enactment of the act in 2003, medical insight has advanced and treatments for gender dysphoria have diversified. The court also noted that the World Health Organization stated in 2014 that transgender persons “have the right to retain their fertility.” The court recognized that there are transgender people who do not want to remove their reproductive glands, and current treatments for transgender people do not aim to change their body to match the body of the gender they identify with. Therefore, forcing individuals to choose between forfeiting their rights in order to avoid physically invasive procedures or giving up their requests for a legal gender change impose an excessive hardship on transgender people, thus violating article 13 of the constitution.
The judgment has been opposed by women’s groups, who have issued statements criticizing the ruling. They are afraid that spaces designated for use solely by women, such as toilets, locker rooms, and public baths, will not be safe and comfortable spaces if transwomen use them.
Sayuri Umeda, Law Library of Congress
November 1, 2023
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