By Mari Yamiguchi
THE ASSOCIATED PRESS
TOKYO (AP) — Japan’s Supreme Court on Wednesday, Oct. 25 ruled that a law requiring transgender people to undergo sterilization surgery in order to officially change their gender is unconstitutional, a landmark verdict welcomed by advocates as a sign of growing acceptance of LGBTQ+ rights.
The ruling by the top court’s 15-judge Grand Bench applies to the sterilization portion of the 2003 law only. It does not address the constitutionality of requiring gender-transition surgery in general to obtain a state-sanctioned gender change — a requirement also criticized by international rights and medical groups.
The law forces those who seek a gender change a “cruel choice between accepting the sterilization surgery that causes intense bodily invasion and giving up important legal benefits of being treated according to their gender identity,” the Supreme Court said.
The decision, which requires the government to reconsider the law, is a first step toward allowing transgender people to change their identity in official documents without getting sterilized. But it was not a full victory for the claimant because the Supreme Court sent her case back to the high court to further examine the requirement for gender-affirmation surgery.
The claimant in 2020 sought a gender change in her family registry — to female from assigned male at birth — but her request was turned down by lower courts.
The decision comes at a time of heightened awareness of issues surrounding LGBTQ+ people in Japan and is a partial victory for that community.
The judges unanimously ruled that the part of the law requiring sterilization for a gender change is unconstitutional, according to the court document. The claimant’s lawyers said the decision that did not find the gender-affirmation surgery requirement unconstitutional was regrettable because it delays the settlement of that issue.
The claimant, identified only as a transgender woman in her late 40s living in western Japan, said in a statement read by one of her lawyers Kazuyuki Minami that she was “surprised” by the decision and was “disappointed” that a decision on the gender-affirmation surgery requirement is delayed.
It causes her more ordeal and court sessions for “further scrutiny about the inside of her underpants,” Minami said.
Under the law, transgender people who want to have their gender assigned at birth changed on family registries and other official documents must be diagnosed as having gender dysmorphia and must undergo an operation to remove their sex organs.
Other requirements are that they are unmarried and do not have children under 18.
Kanae Doi, Japan director of Human Rights Watch said it was “great news” that the top court unanimously found the sterilization unconstitutional and that the government now must follow up. “The government is obliged to amend the law to remove the sterilization and gender-affirmation surgery requirements,” she said. “Any invasion of the body against one’s will is a human rights violation.”
LGBTQ+ activists in Japan have recently stepped up efforts to pass an anti-discrimination law since a former aide to Prime Minister Fumio Kishida said in February that he wouldn’t want to live next to LGBTQ+ people and that citizens would flee Japan if same-sex marriage were allowed.
But changes have come slowly and Japan remains the only Group of Seven member that does not allow same-sex marriage or legal protections, including an effective anti-discrimination law.
The claimant originally filed the request in 2020, saying the surgery requirement forces a huge economic and physical burden and that it violates the constitution’s equal rights protections.
Rights groups and the LGBTQ+ community in Japan have been hopeful for a change in the law after a local family court, in an unprecedented ruling earlier this month, accepted a request by a claimant for a gender change without the compulsory surgery, saying the rule is unconstitutional.
The special law that took effect in 2004 states that people who wish to register a gender change must have their original sex organs, including testes or ovaries, removed and have a body that “appears to have parts that resemble the genital organs” of the new gender they want to register with.
More than 10,000 Japanese have had their genders officially changed since then, according to court documents from the Oct. 11 ruling that accepted Gen Suzuki’s request for a gender change without the required surgery.
Surgery to remove sex organs is not required in most of the approximately 50 European and central Asian countries that have laws allowing people to change their gender on official documents, the Shizuoka ruling said. The practice of changing one’s gender in such a way has become mainstream in many places around the world, it noted.
In a country of conformity where the conservative government sticks to traditional paternalistic family values and is reluctant to accept sexual and family diversity, many LGBTQ+ people still hide their sexuality due to fear of discrimination at work and schools.
Some groups opposing more inclusivity for transgender people, especially to those changing from assigned male at birth to female, had submitted 20,000 petitions Tuesday to the Supreme Court, asking it to keep the surgery requirement in place to keep “women’s spaces safe.”
Hundreds of municipalities now issue partnership certificates for same-sex couples to ease hurdles in renting apartments and other areas, but they are not legally binding.
In 2019, the Supreme Court in another case filed by a transgender man seeking a gender registration change without the required sexual organ removal and sterilization surgery found the law constitutional.
In that ruling, the top court said the law was constitutional because it was meant to reduce confusion in families and society, though it acknowledged that it restricts freedom and could become out of step with changing social values and should be reviewed later.
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