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On October 25th, less than a quarter past 15:00 JST (02:00 EDT), Japan’s Supreme Court’s Grand Bench handed a landmark decision. The court struck down a clause in 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”), which requires sterilization for transgender citizens to change their legal gender status.
“The clause is unconstitutional and invalid,” said Chief Judge Tokura Saburō (戸倉三郎).
Today’s trial was based on the Supreme Court’s Petty Bench’s 2019 ruling that the clause was constitutional.
The Grand Bench, comprised of fifteen judges, overturned the 2019 ruling today and made a mark in Japanese history for the first time the Supreme Court judged the clause as unconstitutional.
It also marks the twelfth time since the end of World War II that the Supreme Court judged a law as unconstitutional.
As a result of today’s ruling, transgender citizens will soon be able to change their legal gender status without undergoing sterilization surgery, one of the five requirements that the Act on Special Cases had required, until today.
The text of Article 3
Article 3
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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
A partial victory
The National Diet is now obligated to revise the Act on Special Cases according to today’s decision.
The plaintiff in today’s domestic relations trial is a transgender woman from West Japan who has undergone hormone therapy but no gender-affirming or sterilization surgeries.
Her koseki (戸籍), or family registry, has remained as male–––the sex she was assigned at birth.
Despite her wishes to change her legal gender status in the koseki to female, her decision to not undergo sterilization has prevented her from gaining legal recognition of her desired identification–––a conundrum many transgender citizens face due to the financial and physical burden the surgery incurs.
The plaintiff has also claimed to the High Court that the clause to require gender-affirming surgery is also unconstitutional, but the first and second hearings did not yield a decision in response.
The Grand Bench has overturned the High Court’s ruling on the sterilization clause as of today but has sent back the plaintiff’s claim regarding the gender-affirming requirement to the High Court to deliberate and decide on.
Until the High Court finalizes its second judgment on the constitutionality of requiring gender-affirming surgery to change gender status in the koseki, the plaintiff’s legal gender will remain the same.
Today’s ruling comes just two weeks after a court in central Japan granted a transgender man permission to change his legal gender status from female to male without undergoing sterilization surgery.
It was then on October 11th that the Hamamatsu Branch of the Shizuoka Family Court also ruled that the surgery requirement is unconstitutional, a first in Japan’s judicial history.
What to read next
Historic: Japan’s Supreme Court Rules In Favor Of Transgender Plaintiff
Sources
[1] 性別変更、手術必要とする規定は「違憲」 最高裁発判断. 日本経済新聞
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