(Apr. 12, 2019) On January 23, 2019, Japan’s Supreme Court held that a law requiring that transgender people undergo gender-change surgery in order to have their gender changed on official documents is constitutional. (Supreme Court, 2018(ku) No. 269 (Jan. 23, 2019) (click on the two characters beside the PDF icon), Supreme Court of Japan website (in Japanese).)
The Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder (Act No. 111 of 2003, amended by Act No. 53 of 2011, Japanese Law Translation website (in Japanese and English)) requires, among other things, that people wishing to register a gender change have “no reproductive glands or … [have] reproductive glands [that] have permanently lost their function.” (Id. art. 3, para. 1, item 4.)
The Case Before the Court and Its Ruling
In the case reviewed by the Court, a transgender man who had not had his female reproductive glands surgically removed requested that the courts grant him legal recognition as a male. The lower courts rejected his request. In its ruling, the Supreme Court acknowledged that the requirement for surgical removal of reproductive glands restricts the freedom of a person not to have his or her body “invaded.” However, the Court approved the reasoning of the Act on Special Cases, which made the following two points:
- When a parent whose biological gender is different from his or her legal gender gives birth to a child subsequent to the change of legal gender, this “creates issues” in the relationship between the parent and the child.
- Because gender distinctions in society have long been made on the basis of biological gender, rapid changes to the social norms related to gender distinctions that could have an adverse effect on society should be avoided.
The Court then stated that the constitutionality of the law’s requirement must be examined in light of the necessity of the requirement and its reasonableness in line with society’s views on transgender and the Japanese family system. The Court decided that, at this time, it could not view the requirement as unconstitutional. (2018(ku) No. 269.) Two justices added a supplemental opinion implicitly requesting that the Diet (Japan’s parliament) conduct a review of the Special Act.
Criticism of the Law and the Ruling
The Act has been criticized in recent years because the costs of the required surgery are too physically and financially burdensome for the individuals affected. In addition, some persons want to preserve the possibility of having their own biological children in the future. (Tatsuya Fujimoto, 10 Years from Implementation of the Transgender “Special Act” – Are Conditions for “Gender Change” Too Strict?, BENGO4.COM NEWS (Aug. 22, 2014) (in Japanese).)
Since the Supreme Court issued its judgment, many articles criticizing the law and the judgment have been published. These articles typically point out that the World Health Organization opposes the requirement of surgery for a legal change of gender, and that the judgment did not afford sufficient consideration to the human rights of transgender persons. (Naozo Kobayashi, Gland Removal Surgery Enforced in Gender-Change Court Case, WLJ Case Column, No. 159 (Mar. 4, 2019) (in Japanese).)
A human rights organization in Japan also published a report in March 2019 calling for the Special Act to be amended. (“A Really High Hurdle”: Japan’s Abusive Transgender Legal Recognition Process, HUMAN RIGHTS WATCH (Mar. 19, 2019).)