Japan’s top court deems gender change rule unconstitutional
- The decision means the government must revise the law, paving the way for transgender people to have their gender changed in official documents without surgery
- Current Japanese law states that people who want to change gender must present a diagnosis of gender dysphoria and meet five requirements
Japan’s Supreme Court on Wednesday ruled that a law requiring transgender people to have their reproductive organs removed to officially change their gender is unconstitutional.
The decision by the top court’s 15-judge Grand Bench was its first on the constitutionality of Japan’s 2003 law requiring the removal of reproductive organs for a state-recognised gender change, a practice long criticised by international rights and medical groups.
The decision now requires the government to revise the law, which paves the way for transgender people to have their gender changed in official documents without surgery.
The case was filed by a plaintiff whose request for a gender change in her family registry – to female from her biologically assigned male – was turned down by lower courts.
The decision comes at a time of heightened awareness of issues surrounding LGBTQ people in Japan and is a major victory for that community.
Kyodo News said the judges unanimously ruled that the part of the law requiring the loss of reproductive functions for a gender change is unconstitutional. Other details of the decision were not immediately available.
Under the law that was struck down, transgender people who want to have their biologically assigned gender changed on family registries and other official documents must be diagnosed as having Gender Identity Disorder and undergo an operation to remove their reproductive organs.
The government is under the obligation to make any laws constitutional so the government now needs to act quickly to remove the clause
Human Rights Watch welcomed the ruling and said the government now had to follow up.
“The government is under the obligation to make any laws constitutional so the government now needs to act quickly to remove the clause,” said Kanae Doi, Japan director of the rights group. “It’s late, but never too late.”
LGBTQ activists in Japan have recently stepped up efforts to pass an anti-discrimination law since a former aide to Prime Minister Fumio Kishida said in February that he wouldn’t want to live next to LGBTQ people and that citizens would flee Japan if same-sex marriage were allowed.
But changes have come slowly and Japan remains the only Group of Seven member that does not allow same-sex marriage or legal protections, including an effective anti-discrimination law.
The plaintiff, who is only identified as a resident in western Japan, originally filed the request in 2000, saying the surgery requirement forces a huge burden economically and physically and that it violates the constitution’s equal rights protections.
Rights groups and the LGBTQ community in Japan have been hopeful for a change in the law after a local family court, in an unprecedented ruling earlier this month, accepted a transgender male’s request for a gender change without the compulsory surgery, saying the rule is unconstitutional.
The special law that took effect in 2004 states that people who wish to register a gender change must have their original reproductive organs, including testes or ovaries, removed and have a body that “appears to have parts that resemble the genital organs” of the new gender they want to register with.
More than 10,000 Japanese have had their genders officially changed since then, according to court documents from the October 11 ruling that accepted Gen Suzuki’s request for a gender change without the required surgery.
Surgery to remove reproductive organs is not required in most of some 50 European and central Asian countries that have laws allowing people to change their gender on official documents, the Shizuoka ruling said. The practice of changing one’s gender in such a way has become mainstream in many places around the world, it noted.
In a country of conformity where the conservative government sticks to traditional paternalistic family values and is reluctant to accept sexual and family diversity, many LGBTQ people still hide their sexuality due to fear of discrimination at work and schools.
Some groups opposing more inclusivity for transgender people, especially to those changing from male to female, had submitted petitions on Tuesday to the Supreme Court, asking it to keep the surgery requirement in place.
Hundreds of municipalities now issue partnership certificates for same-sex couples to ease hurdles in renting flats and other areas, but they are not legally binding.
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In 2019, the Supreme Court in another case filed by a transgender male seeking a gender registration change without the required sexual organ removal and sterilisation surgery found the ongoing law constitutional.
In that ruling, the top court said the law was constitutional because it was meant to reduce confusion in families and society, though it acknowledged that it restricts freedom and could become out of step with changing social values and should be reviewed later.
After years of wrangling, Japan earlier this year passed a watered-down bill on promoting LGBTQ understanding, which didn’t provide any specific rights or ban discrimination. The law sparked anger among rights activists and concern among conservative lawmakers.
Additional reporting by Reuters, Bloomberg, Agence France-Presse
