Gender Change Case : Establish a System that Does Not Confuse Society

A situation must be avoided in which society is confused as a result of easing conditions for a change of gender. The government needs to thoroughly discuss a new legal system.

In a family court case in which a person with gender dysphoria sought to change their gender on their family register, the Grand Bench of the Supreme Court has ruled that a legal provision of the special law on gender dysphoria that effectively requires transgender people to undergo surgery to eliminate their reproductive capabilities is “unconstitutional.”

The Grand Bench noted that this provision forces a person to make a harsh choice between undergoing surgery or abandoning their gender change. Based on that recognition, it then ruled that the provision was invalid because it violated the Constitution, which stipulates the right of individuals to the pursuit of happiness. It was the unanimous view of all 15 justices.

The case was filed by a person from western Japan who was born in a male body and asked a family court to allow an official gender change without having to undergo surgery, citing physical strain and other reasons. Under the provision of the special law, surgery to remove a person’s testes or ovaries was required, and the request was dismissed at a family court and a high court.

In a separate case in 2019, the Petty Bench of the Supreme Court found that the provision was “constitutional.” The latest case therefore marks a major change in judgment. The Grand Bench stated this time that “understanding of people with gender dysphoria is spreading and efforts are being made to improve the environment in this regard.”

Although the Grand Bench cited a change in public awareness, among other reasons, there may be voices questioning why the court has come to an exact opposite conclusion after just four years.

Gender is the basis of personality, and under current law, is objectively determined by biological characteristics. It is quite natural that the human rights of people with gender dysphoria should be respected. Nevertheless, if individuals are allowed to determine their own gender, the social order could be shaken.

If a woman who has changed her gender from female to male while maintaining her reproductive capabilities gives birth, will the “male” on the family register be recognized as the mother? There is concern about possible trouble when a former male who changed gender to female uses public toilets or baths. There are many issues to be addressed.

In Japan, a total of 12,000 people have undergone surgery to change gender since the special law was enacted in 2004.

In response to the top court’s ruling, the Diet will be forced to review related laws and regulations, including the special law. In addition to strict requirements for doctors to follow when diagnosing gender dysphoria, it will be necessary to establish new legal requirements when allowing a gender change.

In recent years, an increasing number of foreign countries have abolished the surgical requirement for a gender change. However, there has been a case in which a transgender man was barred from being designated as the “father” when registering a baby he gave birth to after artificial insemination.

In Japan, it is essential to examine in detail such cases and systems in these countries as well, and to promote the establishment of mechanisms and rules.

(From The Yomiuri Shimbun, Oct. 26, 2023)