Surgery Rule for Legal Gender Change Found Unconstitutional; Japan’s Supreme Court Cites Right to ‘Pursuit of Happiness’

Jiji Press file photo
Supreme Court Chief Justice Saburo Tokura, center, hears arguments in a case challenging legal requirements for changing genders on family registers at the court in Tokyo on Sept.

The Grand Bench of the Supreme Court on Wednesday ruled unconstitutional and void a legal provision that effectively requires a person who wants to change their gender on their official family register to first undergo surgery to eliminate their reproductive functions.

This is the 12th time since the end of World War II that the Supreme Court has declared a legal provision unconstitutional.

The case was filed by a person from western Japan who was born in a male body and wanted to change her gender to female on the family register.

In arguments presented to the Grand Bench last month, an attorney said that “the plaintiff’s reproductive function has been severely diminished by hormone therapy,” and claimed that forcing her to undergo surgery would violate Article 13 of the Constitution, which stipulates the right to the pursuit of happiness, among other provisions.

It has been about 20 years since the law was enacted as special lawmaker-initiated legislation with the intent to eliminate prejudice and discrimination suffered by people with gender dysphoria because of a difference between their appearance and the sex recorded in their family register. About 12,000 people changed their gender on their official family registers under the law.

Too heavy a price

“The time, money and body parts I lost were too heavy a price to pay,” Kanata Kimoto — who is not the plaintiff in the latest case — said on Sept. 26 at a Tokyo press conference held by transgender people.

Born in a woman’s body, Kimoto, 32, said that he felt uncomfortable about his gender from an early age. He was 18 years old when he learned of the requirement that he had to have his reproductive organs removed in order to change the sex on his family register. Kimoto felt as if he were being told, “You aren’t really a man if you don’t accept this rule,” and felt close to despair.

His discomfort grew day by day, and he decided to have the operation after once thinking he otherwise had no choice but to die. Working as a temp during the day and at a convenience store at night, Kimoto saved up ¥2 million over the next two years and had his ovaries and uterus removed at the age of 25.

He was able to obtain the family register he wanted, but still has scars on his body.

Social situation

The law on gender identity that came into effect in 2004 states that those who wish to change their gender on their family register must be diagnosed with gender dysphoria by at least two physicians and then have to meet the following five conditions. They must be 18 or older; they must not be currently married; they must have no minor children; they must have no gonads — testes or ovaries — or those organs must have permanently lost their function (a requirement to remove their reproductive capabilities); and they must have a body that has parts resembling the genital organs of a post-operative transsexual (a requirement to change their appearance).

The last two requirements were established with the intention of avoiding confusion in parent-child relationships and social life, such as when a child is born through the parent’s original reproductive function, but they require individuals, in principle, to undergo surgery to disable their reproductive ability or alter their appearance.

An increasing number of foreign countries have abolished such requirements from a human rights perspective, and more than 40 countries now have no such requirement. The World Health Organization issued a statement opposing such requirements in 2014.

In 2019, the Second Petty Bench of the Supreme Court stated that the requirement to remove reproductive capabilities “is constitutional at present,” but also that it “in part restricts one’s freedom to avoid bodily harm that is against one’s will.” The judges then stated that constant examination is necessary to determine whether each case conforms to the Constitution, and that decisions can change with changes in social conditions.

On Oct. 11, the Hamamatsu branch of the Shizuoka Family Court ruled for the first time in Japan that such a requirement is unconstitutional from a standpoint of international trends as well as proposals by domestic academic societies to abolish it.