Issues | LAW OF THE LAND

The Supreme Court hews to the letter of the law on gender identity while laying the groundwork for future challenges

by Colin P.A. Jones

Contributing Writer

At no point have I ever had to grapple with the decision to have my genitals surgically removed. Perhaps the same is true for you. While these may seem an odd set of affirmations to open with, they help illustrate a basic truth: How we think about a law can vary greatly depending upon whether or not it is likely to affect us personally.

Until recently, I was able to consider Japan “progressive” in having adopted a law way back in 2003 that made it possible to change one’s legal gender. That the law was framed in terms of addressing gender identity “disorder” was inconsequential to me since it was not me who was being branded as “dysfunctional.” Similarly, the fact that to be eligible for a change of gender the applicant had to have no functioning reproductive glands as certified by two doctors, which would generally mean having undergone sex reassignment surgery, seemed like just another box that needed to be checked: They were not my reproductive glands, after all.

In fact, for some time I was more interested in the fact that the law was tied to the koseki (Japan’s family registry system) and thus only seemed to benefit Japanese people. Going through the process mandated by the law enabled one to change the gender recorded in their family registry and thereafter be treated as the new gender for purposes of any laws where that attribute was relevant. Since only Japanese people have family registries, it seems there was no way for non-Japanese residents to change their gender in the eyes of the law.

In 2013, the Supreme Court declared a transgender male should be registered as the father of the child born to his wife, even though it was biologically impossible (the couple used donor sperm). While some press characterized this ruling as “progressive,” I just saw it as extremely conservative. The court has repeatedly demonstrated it doesn’t care about biological — or even emotional — parenthood, when it conflicts with the rigid parameters of the family registry system. In 2013, the court was simply applying a presumption of paternity that had been laid down at the end of the 19th century.

Having understood that, it now seems like a failure of imagination on my part to have ever considered a law mandating forced sterilization to be progressive. Since the law was passed in 2003, approximately 7,000 people have availed themselves of the process; perhaps not all of them wanted to have the required surgery, were forced to make a difficult decision and endured great emotional and physical suffering because of the requirement.

Stuck on biology

Last month, the Supreme Court issued a judgment in a case involving a challenge to the law. It arose as an appeal from a family court’s rejection of a petition for a change of gender decree, presumably because the required surgery had not taken place. The petitioner argued that statutory requirement meant those who wished to change their gender but not undergo surgery were being forced to endure an invasion of their bodily integrity that left a permanent impact. This, it was argued, violated the Constitution, specifically article 13, which mandates respect for individuals and requires the right to the pursuit of happiness to be a prime objective of government, and article 14, which guarantees equal protection under the law.

The court unanimously rejected the appeal, finding the law could be understood as addressing concerns about confusion about parentage if a person who underwent a legal change in gender without surgery had children based on their “old” gender, and seeking to avoid sudden changes in longstanding distinctions made between men and women “based on biology.”

The Supreme Court is highly deferential to the legislature, so this aspect of its decision is not surprising. However, the trio of seemingly incongruous precedents from decades gone by that it referenced in arriving at its decision left me scratching my head: One about the statute of limitations for bringing paternity suits, another on age discrimination in public employment and the third about police photographing participants in demonstrations. Presumably it made sense to them!

That the court would decide this way was telegraphed in advance by its composition. Judgment was rendered by a “Petty Bench,” one of the three panels of five judges that handle the bulk of the Supreme Court’s case load, rather than all 15 judges sitting together as a single panel as the Grand Bench.

Grand Bench decisions are rare, with only a few being issued each year, if that. They only occur in a constitutional context if the court is reviewing a constitutional question for the first time or is considering overturning a prior precedent. For a Petty Bench to rule a statute unconstitutional would have been unprecedented.

Yet in reaching its predictable conclusion, the 2nd Petty Bench may have laid the groundwork for legislative change or litigation in the future. Although the decision of the five judges was unanimous, they noted that change in social conditions, family systems and the way in which gender is understood could change in the future, and that the provisions of the statute should be subject to ongoing consideration. While the court held that the statute did not violate article 13 or 14 of the Constitution, it hedged it with “at the present time.” Such statements are how the court signals the legislative branch the need for possible legislative change, and set the stage for a future court to make a more assertive ruling if changes are not forthcoming.

Seeds of change

The real groundwork, however, was laid in the long concurring opinion written by Kaoru Onimaru, a former lawyer and one of only three female judges currently on the bench at the nation’s top court. Concurring and sometimes dissenting opinions can be important in indicating a direction the court may take in the future. They can also simply be a dead end or a judge blowing off steam, I guess time will tell.

But Judge Onimaru’s concurring opinion made some important points that can be referenced by judges and lawyers in future trials, albeit bounded by the language of the statute, which seems to require referring to those who avail themselves of it as a category of shōgaisha (individuals with disabilities). Noting the importance of gender as a core component of personal identity, she establishes access to the procedure for changing gender as an important protected legal interest for those who need it. She then points out that the guidelines of Japan’s medical community regard transformative surgery not as the final stage of an established course of treatment, but an option left up to individuals.

In Onimaru’s view, the law thus leaves those who wish to change their gender — but not to undergo surgery — no choice but to go through a potentially dangerous and irreversible procedure against their free will. Since this represents a significant statutory restriction of constitutionally guaranteed rights, the statutory requirement must have a rational purpose.

Accepting the court’s rationale about avoiding sudden changes and family confusion, she goes on to suggest concerns along the lines of whether a woman were to legally be recognized as male and then give birth from a still-functioning womb are overblown and unlikely to happen with great frequency. Moreover, she points out that when the statute was first passed in 2003, it did not permit anyone to undergo the process if they had any existing children of any age. This was amended in 2008 so that the restriction only applied to those with minor children. Thus, there are already situations in which people have mothers who used to be fathers, and vice versa.

This is a useful example of social change described in the judgement and forming part of the court’s groundwork. Onimaru goes on to explain that there is growing awareness in schools and places of work of those who do not fit clearly into one gender or another. Looking beyond Japan, she also points out that since mandatory surgery for gender confirmation has been rejected by bodies such as the World Health Organization and the European Court of Human Rights, an increasing number of countries are abandoning the requirement. Acknowledging her panel’s view that the statutory requirement cannot said to be unconstitutional at this time, she adds that it cannot be denied that there is also some uncertainty on the subject.

As usually happens in constitutional litigation in Japan, the dispositive result in the case was predictable: The person challenging the government loses. Yet this case is an interesting example of the court making constitutional law — or trying to at least — just on a different time scale than in other countries. Rather than the historic, dramatic changes sometimes wrought by the Supreme Court of the United States and which can seem like volcanic eruptions that suddenly change the topography, Japan’s court moves in geological time, laying down sediment that can gradually come to change the flow of social and political forces.

Perhaps the next time the court hears a case on the subject it will be heard by the Grand Bench. And instead of an appeal by a single individual from a family court ruling, perhaps it will be a group of individuals suing the state for legislative nonfeasance — the Diet’s failure to change the law despite social changes of the sort pointed out by Onimaru.

This is how constitutional litigation works in Japan: Dedicated individuals file lawsuits often expecting to lose, but their efforts make it possible for people in the future to have a better chance of winning — maybe. So kudos to the plaintiff and their counsel, as people like them are all too often the unsung heroes of legal change in Japan.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and primary author of “The Japanese Legal System” (West Academic Publishing, co-authored with Frank Ravitch). The views expressed are those of the author alone.

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