Supreme Court Removes Non-reproductivity Requirement

This is the twelfth example for the Supreme Court to decide an existing law to be unconstitutional. The Grand Bench of the Supreme Court on Wednesday decided that the provision of an act, which required permanent loss of reproductivity to a person hoping to change sex, to be unconstitutional. The Diet, having neglected in taking necessary actions for a long time, has to start its effort to implement the demand of the court.

The Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder upholds five requirements for a person who wants to change sex: 1) not less than 18 years of age, 2) not currently married, 3) currently has no child who is a minor, 4) has no reproductive glands or whose glands have permanently lost function, and 5) has a body which appears to have parts that resembles the genital organs of those of the opposite gender.

 

A person filed a petition in 2019 seeking the change of the legally registered sex. Hamamatsu Branch of Shizuoka Family court has decided the requirement 4), which literally requires surgery, would be unconstitutional earlier this month.

 

The Supreme Court decided that being legally treated as a person with self-recognized gender was an important legal interest, and that the requirement of having no reproductive gland violated Article 13 of the constitution which guarantees the freedom of not having damage on body.

 

The Second Petty Bench of the Supreme Court decided in 2019 that the act was constitutional, considering possible confusion in the society. However, the court this time took account of the changes in society thereafter. With the revision of the act in 2008, sex change became possible after one’s child comes of age. Before that, no one with a child could not change the sex. The court found no social confusion after the amendment, which approved “female father” or “male mother.”

 

Surgery for changing sex is recently one of the choices for medical treatment on gender identity disorder. The Diet passed LGBT Understanding Promotion Law and the local governments introduced ordinances for gender equality. There is an international trend of removing the surgery requirement from the laws. Having those social changes considered, the Supreme Court changed the decision of 2019.

 

However, the Supreme Court did not decide on the requirement 5), which is called “appearance requirement” or “surgery requirement,” because the lower court had not decided on it. While there are examples of female-to-male change without surgery, it is impossible to have male-to-female change without surgery to fulfill the requirement 5). Eliminating this disparity is remaining.

 

The lawmakers are responsible for fixing the legislation as soon as possible. The gender identity disorder act was originally submitted not by the Cabinet but by the lawmakers. Although it is logically natural for some lawmakers to submit the amended draft to one of the Houses, it is predicted that Ministry of Justice will instead deal with this issue for time-saving reasons. There actually are some conservative lawmakers who oppose the court decision. It is the matter whether the legislative branch can realize the change of society where they live.

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