Japanese Court: Sterilization as Criteria for Gender Status Change Unconstitutional

Japanese Court: Sterilization as Criteria for Gender Status Change Unconstitutional

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Legal scale upon the red disk of the Japanese flag, superimposed upon the transgender pride flag.
In Japan, legal gender status can only be changed following surgery and sterilization. A court decision now calls this unconstitutional.

Major news for the transgender community in Japan, as a rule long considered inhumane has been challenged by a local court.

Japan requires transgender people to fulfill five criteria to change their legal gender status, including not only gender affirmation surgery but also sterilization. A court ruled that forcing sterilizations is unconstitutional and granted a transgender man permission to change his status without undergoing surgery.

“I still can’t believe it”

On October 11th, a court in central Japan granted a transgender man permission to change his legal status from female to male without undergoing sterilization surgery–––one of the five requirements for changing gender status under Japanese law.

The court also judged the surgery requirement unconstitutional, a historic first in Japan’s judicial proceedings.

The decision comes a year after transgender man Suzuki Gen (48) filed a request to change his legal status in the koseki (戸籍), or family registry, to the Hamamatsu branch of the Shizuoka Family Court.

After Wednesday’s decision, Suzuki told reporters “I still can’t believe it. I’m in shock. But I am happy knowing that I can live in comfort now that the helplessness and worries from the past 40 years are gone.”

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Suzuki has been in a common-law marriage with his female partner. Until now, both had female gender status in the family registry system; this meant they were unable to legally marry, as Japan does not recognize same-sex marriage.

Hamamatsu City, Shizuoka, where this legal action took place.

The law in question

Suzuki, although having undergone gender-affirming care such as hormone therapy and breast reconstruction–––another requirement for changing gender status–––does not wish to remove his female reproductive glands citing concerns for the operation’s impact on his physical and mental health.

By choosing not to remove his female reproductive glands, Suzuki’s desire to gain legal recognition as a male was at odds with Article 3 of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder (hereinafter referred to as the “Act on Special Cases”).

Article 3          

A family court may make a ruling of a change in the recognition of the gender status of a person with gender identity disorder who falls under all the following criteria.

1. They are at least 18 years old

2. They are unmarried

3. They have no minor child

4. They are sterilized

5. They have a body with parts that resemble the genital organs of their identified gender

Suzuki argued to the court that the Act on Special Cases’ sterilization requirement was unconstitutional as it was leaving him no choice but to undergo unwanted surgery.

Skeptical judges

Past court cases have questioned the requirement’s constitutionality, but Chief Sekiguchi Takehiro’s judgment is the first to deem it unconstitutional, thereby granting the plaintiff special permission.

Judge Sekiguchi stressed that the surgical removal of reproductive glands would have “significant and irreversible outcomes,” and that a law that constrains transgender people to such a fate is deserving of skepticism.

The court’s ruling cited other reasons such as evolving social conditions regarding gender diversity since Japan enacted the Act on Special Cases more than nineteen years ago.

Calls for change

Coming into practice in 2004, the Act on Special Cases has since received international scrutiny and demands for revision.

In 2014, the World Health Organization and other groups released a joint statement asking Japan to abolish its sterilization requirement for changing legal gender status citing a violation of human rights.

The United Nations Human Rights Council has also called on Japan to revise its law.

“International and domestic scrutiny along with mounting data on the realities of transgender (people) may have contributed to the decision that (the sterilization requirement) is unconstitutional,” said Kamiya Yuichi, Secretary General of Japan Alliance for LGBT Legislation.

Despite worldwide criticism, the Supreme Court unanimously voted in 2019 that the sterilization requirement was constitutional, saying the birth of children to transgender people would cause social confusion.

Expensive ordeal

Between 2004 when Japan introduced the Act on Special Cases and 2022, 11,919 people changed their gender status in the family registry.

Kimoto Kanata, a member of the Japan Alliance for LGBT Legislation says he would not have undergone sterilization surgery had the law not required. His surgery cost about ¥2 million ($13,000 USD).

What’s next

Suzuki’s court victory has sparked hope among those who wait for the Supreme Court to announce its decision in a separate court case debating the constitutionality of the sterilization requirement.

On September 27th, all fifteen justices of the Supreme Court’s Grand Bench heard from the legal team of a transgender woman who petitioned the court to grant her status change without undergoing surgery.

Sources expect the decision to come out by the year’s end.

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