FOCUS: Gender Identity Law Reform Stalls despite Court Rulings

Tokyo, Oct. 29 (Jiji Press)–A series of Japanese court rulings has found key legal provisions on gender dysphoria unconstitutional, but these decisions have not translated into practical relief for people seeking to change the gender recorded on their family registers, largely due to conservative opposition in parliament. In 2023, the Supreme Court’s Grand Bench ruled that the requirement that applicants for such a change lose their reproductive capacity was unconstitutional and invalid. In September this year, Sapporo Family Court issued a similar decision regarding the requirement to alter the appearance of genitals. Under the special measures law on legal gender status for people with gender dysphoria, individuals may change their legally recognized gender if they are diagnosed with gender dysphoria by at least two physicians and meet all five of the following requirements: be 18 years of age or older; be unmarried; have no underage children; lack reproductive glands; and have genitalia that resemble those typically associated with the sex other than the one assigned at birth. Individuals may amend their family register entry if related petitions are approved by a family court. The petitioner in the Sapporo case is a transgender man in his 30s from the northern Japan city. He had not undergone gender-affirming surgery to alter his genital appearance and had avoided hormone therapy due to concerns about side effects. Although no court had previously declared the appearance requirement unconstitutional, the petitioner filed a petition with Sapporo Family Court. “I wanted to give people a clearer picture of the environment and realities faced by those affected (by gender dysphoria),” he said. “I also hoped to broaden the range of options available to us.” In September, the family court, ruling in two cases including the one involving the transgender man, noted that advances in medical knowledge mean surgery on external genitalia is not always necessary, and that “imposing an appearance requirement lacks reasonable justification.” The court approved changes to the applicants’ legal gender, finding the appearance requirement an excessive restriction. It was the first publicly known ruling to deem the requirement unconstitutional. “This is a welcome development,” the petitioner said. “I hope the appearance requirement will be abolished, and that awareness of the requirement and other related rules will spread beyond those directly affected.” Regarding the infertility requirement, the Supreme Court judged this to be “constitutional at this time” in a January 2019 ruling, but reversed course in October 2023. The court found that the rule “forces a harsh choice between undergoing surgery with a high degree of physical invasiveness and abandoning a change of legal gender status.” Noting that removal of reproductive glands is no longer a treatment of last resort, it concluded that the requirement “violates Article 13 of the Constitution, which effectively guarantees freedom from bodily invasion, and is therefore invalid.” This was the 12th time since World War II that the Supreme Court has found a statutory provision unconstitutional. In July last year, Hiroshima High Court, in a ruling on a case sent back from the Supreme Court, also said that the appearance requirement “may be unconstitutional.” In response to these rulings, lawmakers from both the ruling and opposition parties started considering amendments to the law. Still, calls, chiefly from conservatives, to retain the appearance requirement have dimmed the prospects for reform. Lawyer Fumiko Suda, who represented the plaintiffs in the two cases before Sapporo Family Court, said, “The decision striking down the appearance requirement as unconstitutional was a welcome ruling, but family court decisions are not binding nationwide.” Suda emphasized the need for legislative reform. “Two years after the Supreme Court decision, the infertility requirement still hasn’t been removed,” she said. “Reform will likely take time. For now, I want judges to follow their conscience and declare it unconstitutional.” END [Copyright The Jiji Press, Ltd.]