Culture

EDITORIAL | Gender Change: There's More to Consider than Individual Rights

The Supreme Court's decision on gender change will impact future family relations rulings and revisions of laws and must carefully avoid causing social anxiety.

Published

6 months ago

November 1, 2023

Editorial Board, The Sankei Shimbun

Two lawyers for the appellant carry signs reading "Unconstitutional" and "Remanded" at a press conference after the Supreme Cout announced its ruling on gender reassignment surgery on October 25. (© Sankei by Kazuya Kamogawa)

Japan's Supreme Court has ruled for the first time on a legal provision affecting transgender individuals with identity disorders. The current law would require such individuals to undergo sterilization in order to change their gender on the family register. This is "unconstitutional," the court ruled.

The court's decision represents a major relaxation in the gender reassignment requirement. Only four years ago, the Supreme Court ruled that such a requirement was "constitutional."

The impact on future family relations rulings and revisions of laws is certain to be considerable. Responses to the decision also need to avoid causing confusion and social anxiety.

Affirming Sex Change: What's at Stake?

The petitioner is a person who is listed as male on the family register (koseki) but now lives as a woman. This is possible due to hormone treatment and other procedures, and the individual has now requested a gender change in their koseki.

Currently, under the special law on gender identity disorder, diagnosis is required by multiple doctors. Gender reassignment can only take place through a domestic relations hearing if five requirements are met. One of those is the absence of minor children.

The first and second courts that reviewed the case in question did not approve the gender reassignment requested by the petitioner. They reasoned that the law required gender-affirming surgery that removed the reproductive capacity.

However, the Supreme Court ruled that surgery to eliminate testes and ovaries is unconstitutional. That is because it restricts the "freedom from severe invasion of the body," which is an essential part of the respect for all individuals guaranteed by Article 13 of the Japanese Constitution.

In cases of gender identity disorder, situations in which a child is born as a result of the original reproductive function are extremely rare, the court concluded. Therefore, disruption of society from children born to such individuals is likely to be limited.

*Outside the Supreme Court in Tokyo. The Court declared the requirement for gender change surgery unconstitutional on October 25. (©Kyodo)*

Effect of the Court's Ruling

The Supreme Court's decision gives more weight to the human rights of individuals. Nevertheless, understanding one's surroundings is indispensable for social life.

On this point, the court decision's supplemental opinion noted specifics. It said the creation of alternative requirements to sterilization would be left to the discretion of the legislative branch.

Broad public understanding is needed to carry out the court's interpretation. For that reason, hopefully, the law will be revised only after careful consideration.

Also, the issue is obviously not yet completely resolved. For example, the Supreme Court remanded the case to a high court for a hearing on the existing requirement that the genitalia of a person undergoing sex reassignment have an appearance similar to the genitalia of the assumed sex.

*Women demonstrate in protest against the movement to remove the requirement for gender reassignment surgery to change gender. October 23 in Shinjuku, Tokyo. (© Sankei by Shimpei Okuhara)*

Remaining Concerns

Although the Diet enacted a law for the promotion of understanding of LGBT individuals and other sexual minorities earlier in 2023, concerns remain that the new law could legitimize men who self-identify as women entering female-only spaces.

The fact that the Ministry of Health, Labor and Welfare has issued a notice on this point reflects this concern. It confirmed that public bathhouses could use "physical characteristics" to distinguish between men and women.

Seven groups working for the protection of civil rights, including women's rights, have submitted their request for upholding the differentiation. They say that removing the surgical requirement could cause "serious social and legal chaos." Their concerns must also be heard as this issue moves forward.

We would also like to reiterate that a clear line needs to be drawn between self-reported gender identity and gender disorders as determined from a medical standpoint.

The emphasis on "unconstitutionality" in the Supreme Court decision should not allow for false perceptions. It does not mean, for example, that "you can decide your own gender." And it does not support excessive rejection of gender-specific education.