Japan Top Court Examines Gender Change on Family Register; Current Law Challenged Over Surgery Requirement

The Yomiuri Shimbun

1:00 JST, September 29, 2023

The Grand Bench of the Supreme Court has started listening to oral arguments in a case over the constitutionality of a legal provision that effectively requires a person who wants to change their gender on the official family register to first undergo surgery to eliminate their reproductive functions.

The plaintiff, who wants to change their identity on the register without undergoing surgery, insists that the provision “violates the Constitution” and “infringes on the right to have one’s gender identity respected.”

The Grand Bench is expected to hand down a constitutional judgment before the end of this year.

This is the first time Japan’s top court has heard arguments in a case on changing gender. Proceedings in legal cases pertaining to family law are usually conducted behind closed doors, but the Supreme Court apparently decided it was necessary to listen to the arguments of the plaintiff’s side in an open hearing, which suggests an important constitutional judgment could be made. It is possible the Grand Bench could conclude that the requirement to undergo surgery is unconstitutional.

The law on gender identity disorder that came into effect in 2004 states that the reproductive glands of their original sex must have “permanently lost function.” To avoid any confusion that might arise should a child be born due to the reproductive function of the person’s original sex, meeting this condition was conventionally assumed to require surgery to remove the ovaries, testicles and other relevant body parts.

In the case now before the Supreme Court, a person who was born as a male and lives in western Japan requested that they be allowed to change to a female on the family register without undergoing surgery. A family court rejected the person’s petition in May 2020, as did a branch of a high court in September that year. The person subsequently filed a special appeal to the Supreme Court.

In the arguments presented to the Grand Bench on Wednesday, representatives including lawyer Kazuyuki Minami said that the person has undergone years of hormone therapy and lives everyday life as a woman. “Undergoing surgery would entail physical suffering and the risk of after-effects, as well as necessitate shouldering the responsibility of the financial burden,” one lawyer said.

In addition, demanding a person undergo surgery in exchange for changing their legally recognized gender “infringes on their human rights and forces them to endure an extremely excessive burden,” a lawyer said. The lawyer argued that this violated Article 13 of the Constitution, which stipulates an individual’s right to “the pursuit of happiness,” and paragraph 1 of Article 14, which guarantees that all people are “equal under the law.”

According to Minami and others, the plaintiff directly conveyed their opinion at a closed hearing Tuesday. The plaintiff reportedly said, “I am very aware that changing one’s gender isn’t easy, but I can’t go on living as a man. I want to be allowed to change my gender.”

After this hearing, the plaintiff issued a statement that touched on their “sincere hope” that a “fair judgment would be handed down.”

In January 2019, a petty bench of the Supreme Court ruled that the provision was constitutional. But in a supplemental opinion, two of the four judges stated that doubts exist about the provision’s constitutionality and pointed out that whether or not a person undergoes surgery should essentially be a matter of free will.

12,000 people changed gender

According to judicial statistics, about 12,000 people changed their gender under the law on gender identity disorder between 2004 — when the law came into effect — and 2022. The opinions of people involved in this issue remain sharply divided over the surgery requirement.

On Tuesday, supporters of transgender people, whose body does not match their internal gender identity, held a press conference in Tokyo’s Kasumigaseki district.

“The current law, which forces people to undergo surgery even though they don’t want to, violates their human rights,” Fumino Sugiyama said at the press conference.

Sugiyama, 42, is listed as female on the family register but now lives as a man.

That same day, several organizations that oppose abolishing the surgery requirement submitted to the Supreme Court a petition signed by about 15,000 people that demanded the court not rule the law is unconstitutional. The groups argued that if the requirement was deemed to violate the nation’s top law, it could “create confusion in society” because it would “become possible for women with male genitals to enter female spaces” and could lead to men giving birth.