On July 11th Japan’s Supreme Court ruled that it was illegal for the government’s METI (Ministry of Economy, Trade, and Industry) to restrict a transgender employee from using the women’s toilets at the workplace.
This marks the first time in Japan’s Supreme Court’s history that it ruled on a case involving sexual minorities’ workplace rights.
All five judges unanimously voted in favor of the plaintiff, a transgender woman in her 50s. Her name is not publicized.
Every judge issued a personal statement adjunct to the ruling, an anomaly for the Supreme Court.
The plaintiff was assigned male at birth. However, feelings of mismatch in gender began occurring in elementary school.
In her twenties, she learned about transgender identity for the first time. Identifying as transgender was the long-awaited answer to her years of questioning. Doctors diagnosed her with sei-dou-itsu-sei-shou-gai (性同一性障害), or gender identity disorder, in 1999.
(Note: the WHO has abandoned the use of “gender identity disorder” since 2019 after revising the International Classification of Diseases (ICD). It now uses the reclassified term “gender incongruence” which is now featured under the sexual health chapter instead of the mental disorders chapter. Japan still uses the term “gender identity disorder,” failing to catch up to international standards.)
The plaintiff then started hormone therapy in her late 20s and began appearing at her part-time job in women’s clothing in her late 30s before working full-time at METI.
The plaintiff started working at METI as a man but came out as transgender at METI when she turned 40. She now identifies as a woman but has kept her legal status as male. Specifically, her koseki (戸籍), or family register is still male.
An official registry system that dates all the way back to the 6th century, the koseki records and certifies the identity and family relationships of Japanese citizens. It contains various information about an individual, including gender.
According to the 2015 law pertaining to gender identity disorder, a transgender person must fulfill five criteria to change their legal gender in koseki. One of those is to have completed sex reassignment surgery (SRS).
The plaintiff has remained legally male due to her inability to receive SRS. She cites health issues as the reason for not undergoing the procedure.
Banished to the upper floors
In 2009, the plaintiff reported to her supervisor that she wished to come to work as a woman.
In response, METI held a meeting in 2010 inviting the plaintiff’s colleagues to discuss the appropriate course of action.
As a result of these talks, the plaintiff was granted permission to wear makeup and women’s clothing. She was also allowed to use the women’s changing room.
But during the meeting, numerous female employees expressed discomfort regarding the plaintiff’s use of the women’s bathroom. So, management decided that the plaintiff could only use the women’s bathroom located more than two floors above her workplace.
While her colleagues were respectful initially, after some time, the plaintiff would be met with harassment and unsolicited advice such as one comment from a superior that suggested she “go back to being a man if she’s not going to have surgery.”
Workplace discrimination led the plaintiff to develop depression to the extent that she had to take a year off from work.
The plaintiff reported to the National Personnel Authority called jinjibu (人事部) in Japanese in 2015. This is where government officials go to demand administrative measures to request improvements in working conditions.
However, the plaintiff was told that METI had dealt with her situation appropriately and that her case would not prompt any investigation. So, she resorted to her last option and took the case to court.
In December 2019, the Tokyo District Court held the first rounds of trial and ruled in favor of the plaintiff, citing that “it was unjustifiable to restrict the legal right of an individual to live a life that aligns with the gender they identify with.”
The Tokyo District Court ordered the National Personnel Authority to withdraw its decision to restrict the plaintiff’s access to her floor’s women’s bathroom. It also ordered the government to pay the plaintiff a fine of more than ¥1,300,000 or USD $9334, lower than the plaintiff’s requested sum which was ¥17,000,000 or $122,044.
However, in the second trial held in 2021 at the Tokyo High Court, judges ruled against the plaintiff and concluded that it was not illegal to restrict the plaintiff’s access to the women’s bathroom. The cort brought the fine down to ¥110,000 or $789.
Following was the Supreme Court trial where the question of whether restrictions on the plaintiff’s bathroom access were illegal or not. The compensation for damages, which had been deliberated in earlier trials, was no longer on the table for discussion and would remain the same.
Supreme Court verdict
The Supreme Court ultimately ruled in favor of the plaintiff on the basis that her particular case made the treatment she received illegal.
The Supreme Court factored the following into their decision:
- The plaintiff had been diagnosed with gender identity disorder and was receiving female hormone therapy.
- The plaintiff had not caused any disturbance whilst using the women’s bathroom located more than two floors above her workspace.
- No colleagues of the plaintiff outwardly opposed her use of the women’s bathroom.
- METI never considered revising its handling of the situation during the four years and ten months of deliberation that took place.
Due to the Supreme Court’s decision to nullify National Personnel Authority’s decision to allow METI to restrict the plaintiff’s bathroom access, METI will be forced to revise its initial decision to force the plaintiff to use a women’s bathroom on more than two floors above her working area.
Criteria To transition legally In Japan
The five criteria that a transgender person must clear to become legally recognized by the gender they’ve transitioned to are:
- You must be 18 years old or above.
- You are currently unmarried. You can be divorced.
- You are currently childless. If your offspring is an adult, this criterion does not apply.
- You do not have the reproductive organs of the gender you are transitioning from.
- You have acquired the genitals of the gender you are transitioning to.
These criteria are an ongoing point of contention between transgender communities and legislators. The fourth and fifth requirements can be virtually impossible to clear for some transgender people due to the financial and physical burdens SRS can impose.
Support Systems In Japan
Here are some support systems you can contact in Japan regarding transgender rights and issues.
- Japan LGBT Support Association
- NIJIIRO DIVERSITY
- Pride House Tokyo Legacy
- Queer & Women’s Resource Center
 経産省トイレ利用制限訴訟 性同一性障害の原告逆転勝訴 最高裁. Yahoo! News
 トランスジェンダー“女性用トイレの使用制限”違法最高裁. NHK
 World Health Organization removes “gender identity disorder” from list of mental illnesses. CBS News
 戸籍で取り扱われる性別の変更. 一般法人gid.jp日本性同一性障害と共に生きる人々の会
 経産省トイレ訴訟控訴審でトランス女性職員、「トイレの利用に限らず、他の女性と同等に接してほしい」と訴え. PRIDE JAPAN
 職場のトイレ制限どう判断 性同一性障害巡る訴訟、11日に最高裁判決. 産経新聞