Japanese Court Deems Mandatory Transgender Sterilization Unconstitutional

Japan's highest court has declared that a government mandate, which demanded that transgender individuals undergo sterilization before gaining legal recognition, is unconstitutional. This landmark ruling marks a significant triumph for the LGBTQ community in the country after years of advocacy. According to a law established two decades ago, transgender people seeking to alter their identity documents were required to be officially diagnosed with "gender identity disorder," be at least 18 years old, unmarried, and not have any dependent children below the legal age.

They must also possess genital organs that resemble those of the opposite sex, while being incapable of reproduction. This necessitates undergoing invasive procedures such as sterilization and plastic surgery.

For a considerable period of time, rights organizations have vehemently criticized this law. Previous attempts to challenge it in court have consistently been dismissed, until this particular instance. A transgender woman initiated a case with the aim of legally changing her gender from male to female without undergoing surgery.

In a significant ruling, Japan's Supreme Court declared on Tuesday that limitations placed by a government ministry on a transgender female worker's access to restrooms at her workplace are unlawful. This landmark decision could pave the way for the advancement of LGBTQ+ rights in a country where there is still no legislation protecting sexual minorities from discrimination. The pronouncement was made during a press conference held at Tokyo District Court on July 11, 2023.

Eugene Hoshiko/AP

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According to public broadcaster NHK, the plaintiff contended that her reproductive abilities had already been affected due to years of hormone therapy. Although her case had been dismissed by both a family court and a higher court, it ultimately reached the Supreme Court. In a ruling on Monday, the court sided with her, stating that the provision mandating sterilization was unconstitutional.

The court ruling stated that the limitation on protecting individuals from physical harm is now unnecessary and more severe. Consequently, the provision in question is deemed unnecessary and unreasonable. Furthermore, reproductive rights are considered fundamental human rights according to the constitution. The judgment highlighted that the requirement for individuals to undergo the removal of their reproductive capacity against their will, in order to align with their legally recognized gender, is a cruel decision.

The Supreme Court's historic decision marks the 12th instance since World War II where a legal provision has been deemed unconstitutional, prompting a review of the law by Japan's parliament, according to NHK reports. It should be noted that this decision focuses solely on the provision mandating sterilization, rather than the entire law being altered.

The Supreme Court's decision not to rule on the provision that mandates transgender individuals to have genital organs "resembling" the opposite sex, stating its constitutional validity, means that this aspect of the case will be deliberated by a lower court. The ruling, announced on Monday, clarified that the requirement does not force transgender individuals to undergo surgery. The response to the ruling has been varied, with some members of the LGBTQ community expressing praise and celebration, while others have raised concerns about the remaining surgical mandates and societal attitudes at large.

During a post-ruling press conference, Kazuyuki Minami, the lawyer representing the plaintiffs, presented a statement on behalf of the plaintiff expressing her profound astonishment at the unforeseen verdict. In the statement, she expressed her deep disappointment that the Grand Chamber of Justice did not authorize her gender change and mentioned the postponement of the case. However, she also expressed her satisfaction that the result of this case would pave the way towards a positive trajectory.

A bill aimed at promoting the understanding of sexual minorities (LGBT) was passed and put into effect during a plenary session of the Upper House at the Diet building in Tokyo on June 16, 2023. The bill received majority votes. (The Yomiuri Shimbun via AP Images)

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According to attorney Minami, there are only a few judgments declaring existing laws unconstitutional, making this ruling highly significant. However, he expressed frustration that the desired conclusion of the plaintiff has not been reached.

The LGBT Law Coalition, also called the National Coalition for the Establishment of Laws for Persons with Difficulties Due to Sexual Orientation and Gender Identity, praised the decision and expressed hope that the Supreme Court would make a fair decision regarding the remaining requirements for transgender individuals.

The organization also expressed profound regret regarding recent acts of discrimination against transgender individuals, which have caused widespread apprehension and distress, particularly in relation to their choice of restroom facilities. NHK reported that earlier this summer, the Supreme Court issued a ruling against a government agency that had denied a transgender employee access to the women's bathroom. This was the court's initial decision pertaining to the rights of sexual minorities in the workplace.

Japan has traditionally held conservative views on LGBTQ issues, and although public opinion seems to be changing, discrimination remains widespread according to activists. Notably, Japan is the only G7 country without legal protections for same-sex unions.

In the spring, the government faced mounting pressure to pass a law that promotes LGBTQ understanding, particularly due to the G7 leaders summit scheduled for May. However, debates and disputes over the bill resulted in its submission to parliament only on the day before the summit commenced.

Critics argue that the ultimately approved bill was a diluted rendition of what activists had initially anticipated, lacking any provisions for human rights guarantees. Additionally, they claim that the bill's wording may implicitly perpetuate certain forms of discrimination.