High Court Finds Anti-nonbinary Family Resister Unconstitutional

The legislative branch is required to review family registration system in Japan which mandates the people to choose one of two sexes. Osaka High Court found exclusion of nonbinary gender option was unconstitutional and needed to be revised. The plaintiff’s appeal to change current system was dismissed, because the court could not find any viable option to replace. The plaintiff is going to appeal to the Supreme Court. 

Family register is a public institution in Japan that certificates a person’s relationship with families and nationality as a Japanese. Article 13 of Family Register Act provides that the registration of entering a family register needs description of the person’s name, date of birth, names of natural parents and relationship with them. The relationship will be described as “son” or “daughter,” and “child” is not allowed.

 

The plaintiff was registered as a woman at birth. It was written as “first daughter” of the parents in the family register. The template of birth registration to local governments does not have any checkbox for nonbinary option for relationship with parents. There is only　　choice of male or female. The plaintiff demands the description should be changed to “child,” based on personal gender recognition.

 

Osaka high Court decided that this lack of choice for nonbinary option was unconstitutional, because it violated Article 14th which guarantees equality under law and should be mended. The court acknowledged gender recognition as directly connected to individual personality. “It is an important legal interest for a person to be legally treated along with gender recognition,” said the court.

 

The court regarded that current laws did not assume a person with gender recognition which would not apply to male nor female, and that nonbinary could not have any legal measure to change family register. Based on that notion, the court concluded that it was necessary for the government to pave the way for changing family register system according to gender recognition.

 

The plaintiff basically argued a right not to be treated as a man nor a woman, requiring a change in current system. Although the court did not approve a specific change in current system, the finding of unconstitutionality of the family register encouraged the plaintiff with hope of further progress in recognition of nonbinary option.

 

The first court, Kyoto District Court, decided that registration about relationship with natural parents would be made about distinction of sex based on physical difference. It regarded that distinction was necessary and rational, because legal system in Japan was based on existence of biological difference between man and woman. As the first court and the high court collide with each other on interpretation of current legal system, it is inevitable that the decision of Supreme Court’s will highly be paid attention to.

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