Constitutional Law

Japan’s Supreme Court Ends Surgery Requirement for Legal Gender Change: What It Means for Employers

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read
Japan’s Supreme Court Ends Surgery Requirement for Legal Gender Change: What It Means for Employers

TL;DR

  • On 25 Oct 2023 the Supreme Court struck down the Civil Code surgery requirement (GID Act Art.3 ①④) as unconstitutional.
  • Courts must now accept gender-marker changes without sterilisation surgery; detailed criteria will be set by lower courts.
  • Employers and schools should update HR, facility‐use and privacy policies to avoid discrimination claims.

Table of Contents

  • Background: Gender Identity Disorder Act Requirements
  • Supreme Court Decision of 25 October 2023
  • Immediate Legal Consequences
  • Practical Implications for Employers and Schools
  • Remaining Uncertainties and Next Steps
  • International Context
  • Conclusion

In a significant decision with far-reaching implications for LGBTQ+ rights in Japan, the Grand Bench of the Supreme Court of Japan ruled on October 25, 2023, that a key requirement for legally changing one's gender is unconstitutional. The ruling specifically targeted the mandatory sterilization provision within the "Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder," signaling a potential shift in the legal landscape surrounding gender identity recognition.

Background: The Special Measures Act (Tokureihō)

Enacted in 2003 through lawmaker initiative, the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder (性同一性障害者の性別の取扱いの特例に関する法律, Law No. 111 of 2003), commonly known as the Tokureihō (特例法), aimed to address the challenges faced by individuals whose gender identity differs from the sex assigned to them at birth. At the time of enactment, this was medically termed Gender Identity Disorder (GID), though terminology has evolved towards "gender incongruence."

The Act allows individuals diagnosed with GID by multiple physicians to petition a Family Court to change their legally recognized gender. This change, once approved, alters how the individual is treated under the Civil Code and other laws, enabling alignment between their legal status and gender identity, including the possibility of marrying someone of the now-opposite legal sex.

However, the Act imposed stringent requirements (under Article 3, Section 1) for this change:

  1. Be 18 years of age or older (originally 20).
  2. Be currently unmarried.
  3. Currently have no minor children (originally "no children" until a 2008 amendment).
  4. Lack functioning gonads or have permanently lost the ability for gonads to function (e.g., through surgical removal). This is often referred to as the "sterilization requirement" or "internal genitalia requirement."
  5. Possess external genitalia that physically resemble those of the identified gender. This is the "external genitalia requirement."

These requirements, particularly Items 4 and 5 (sometimes collectively called the "surgery requirements"), reflected the medical understanding and societal context of 2003, aiming to prevent perceived "social confusion" while allowing legal recognition after significant medical intervention, often presumed to include surgery.

The Supreme Court's October 2023 Decision

The case before the Supreme Court involved an individual who identifies as female but was assigned male at birth. She lived socially as a woman and had undergone long-term hormone therapy, resulting in diminished reproductive capacity, but had not undergone gonad removal (castration). She sought legal gender change, but lower courts rejected her petition for failing to meet Requirement 4.

The Grand Bench unanimously found Requirement 4 (the sterilization requirement) unconstitutional. The Court reasoned that this requirement violates Article 13 of the Constitution of Japan.

Article 13 states: "All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs."

The Court's rationale included several key points:

  • Freedom from Bodily Invasion: The Court explicitly recognized that Article 13 guarantees the crucial right to be free from non-consensual bodily invasion (shintai e no shinshū o ukenai jiyū). Being forced to undergo surgery constitutes a serious infringement of this freedom.
  • A "Cruel Choice": While the law doesn't directly mandate surgery for all individuals with GID, it forces those seeking legal gender change without a medical necessity for gonad removal into an agonizing dilemma. They must either undergo a procedure involving "intense bodily invasion with irreversible consequences" or abandon the "important legal benefit" of having their legal gender align with their identity. The Court deemed this forced choice an unacceptable constraint on their Article 13 rights.
  • Diminished Necessity: The Court examined the original legislative intent behind Requirement 4 – primarily preventing potential births inconsistent with the changed legal gender and the perceived "social confusion" this might cause. However, the Court found that the necessity for such a drastic measure had significantly decreased over the past two decades due to:
    • Evolving Medical Understanding: Current medical standards recognize that GID treatment is diverse, and not all individuals require or desire sterilizing surgery. The previous "staged treatment" model is no longer standard practice.
    • Increased Social Awareness: Societal understanding and acceptance of transgender people and gender diversity have grown considerably since 2003. International bodies like the WHO no longer classify gender incongruence as a mental disorder, and numerous countries have removed sterilization requirements.
    • Legal Precedent: The 2008 amendment (allowing gender change for those with adult children) already legally acknowledged the existence of parents whose legal gender might not match traditional roles (e.g., a "female father" or "male mother") without causing undue social disruption.
  • Lack of Rationality: Given the serious infringement on bodily integrity and the diminished necessity of the requirement in light of changed medical and social circumstances, the Court concluded that Requirement 4 imposes an excessive burden. It lacks a necessary and rational basis proportionate to the legislative aim, thus violating Article 13.

Crucially, the Supreme Court's decision only invalidated Requirement 4. The constitutionality of Requirement 5 (the external genitalia appearance requirement) was not decided and the case was remanded to the High Court for further consideration of that point in light of the ruling on Requirement 4.

Implications and Lingering Questions

This ruling represents a major victory for transgender rights advocates in Japan, removing a significant and invasive barrier to legal gender recognition. However, several complex issues remain:

1. The External Genitalia Requirement (Item 5):
The fate of Requirement 5 is now a central question. If this requirement is ultimately upheld, individuals seeking legal gender change might still be compelled to undergo surgeries they may not medically need or desire (such as vaginoplasty, phalloplasty, or mastectomy/chest contouring) simply to meet the "appearance" criteria. The dissenting opinions in the October 2023 case argued strongly that Item 5 should also have been struck down as unconstitutional for similar reasons related to bodily integrity and the imposition of potentially unnecessary medical procedures. Its constitutionality will likely be the subject of future litigation.

2. Parent-Child Relationships:
Removing the sterilization requirement raises complex legal questions about parentage if an individual changes their legal gender but retains reproductive function and subsequently has children. Japanese family law currently establishes:

  • Mother-child relationship primarily through the fact of birth (bunben no jijitsu).
  • Father-child relationship through marital presumption (chakushutsu suitei) or legal acknowledgment (ninchi).

This framework creates paradoxes when biological reproduction doesn't align with post-change legal gender:

  • FTM Individuals Giving Birth: A person legally recognized as male who gives birth cannot, under current interpretations, be registered as the child's mother (as motherhood is tied to birth by a legal female). Acknowledgment as a father is also problematic as it's typically based on biological paternity. This could leave the child legally motherless.
  • MTF Individuals Fathering Children: A person legally recognized as female who uses their sperm (e.g., cryopreserved before transition) to father a child cannot currently acknowledge the child as the father. If the birth mother is unmarried, the child might lack a legal father unless another man acknowledges paternity.

A Tokyo High Court decision (August 19, 2022) highlighted these difficulties, finding that while a transgender man could potentially use cryopreserved sperm to establish a biological link, the current legal framework did not easily allow for legal recognition as the father after gender change, though it did affirm the child's right to seek acknowledgment based on the pre-change biological reality.

The Supreme Court acknowledged these potential complications arising from removing Requirement 4 but suggested they could be resolved through "legal interpretation or legislative measures." Many legal scholars argue that the most practical interpretation under current law might be to determine parentage based on the biological reality at the time of birth, using the pre-change gender status for establishing legal parent-child ties, even if this creates a discrepancy between the parent's current legal gender and their legal parental role (e.g., a legal male being the legal mother). However, this is not definitively settled, and legislative reform addressing parentage for transgender individuals may be necessary to provide clarity and ensure children's rights are protected.

3. Broader Context and Future Reforms:
The ruling comes amid broader societal discussions about LGBTQ+ rights in Japan. While the government enacted an "LGBT Understanding Promotion Act" (LGBT理解増進法) in June 2023, the law was widely criticized by advocates as weak, lacking anti-discrimination provisions, and containing language perceived as potentially harmful (e.g., emphasizing that "all citizens can live with peace of mind," which some feared could be used to hinder progress).

The Supreme Court's strong stance on bodily autonomy and the importance of aligning legal status with gender identity may provide momentum for further legal challenges and legislative reforms, including revisiting the remaining requirements of the Tokureihō and potentially enacting comprehensive anti-discrimination legislation.

Conclusion

The October 25, 2023, Supreme Court decision is a landmark moment in Japanese legal history, affirming the fundamental right to bodily integrity and removing a significant hurdle for transgender individuals seeking legal recognition. By striking down the mandatory sterilization requirement, the Court acknowledged the evolution of medical understanding and social attitudes. However, the ruling also brings into sharp focus the remaining legal complexities, particularly concerning the external genitalia requirement and the establishment of parent-child relationships. Further judicial scrutiny and proactive legislative action will be essential to address these issues and ensure that Japan's legal framework fully respects the dignity and rights of individuals based on their gender identity.