Last month, the Supreme Court ruled that the current law for gender transition is constitutional, though it registered that this law may fail to align with our current society. The law requires people wishing to change their official gender to be unmarried, have no minor children, be surgically sterilized and have been diagnosed with gender dysphoria.
This decision is painful to see for trans people. I myself am a U.S. citizen with permanent residency in Japan. I changed my gender marker in the United States, which I could not have done here as I don’t satisfy all the aforementioned conditions set by Japanese law. The current requirements are physically intrusive, in that the government requires complex and life-altering surgeries; the situation is reminiscent of various laws from throughout the 20th century that required some Japanese people with disabilities to be surgically sterilized, which were only revoked in 1996. The time is ripe for change, as has already happened in many countries, for example as in France in 2016.
What about the other conditions? Should one be required to be unmarried and have no minor children to officially transition? The court justifies this as avoiding confusion within families. The rationale appears to be that children cannot understand a parent’s change in gender, and that transition is impossible within a marriage; but as a married person with minor children who has recently transitioned, I can attest that human beings are quite capable of understanding each other’s changes — even, fortunately, within families.
Of course, the current law doesn’t allow for same-sex marriage. But this barrier seems more a means of minimizing changes to existing policy and less about the needs of trans people or the reality of gender transition; the law is at the service of the government rather than the people. This is no proper foundation for legal requirements that have profound effects on people’s lives.
The surgery requirement is especially problematic given the way that trans medicine is handled under Japanese law. As of last year, bottom surgery (a procedure performed on the genitals) is covered by national health insurance, under the condition that the person needing the surgery has never taken hormones. This policy ignores the reality of trans health care: Surgery is an irrevocable step and one that is usually taken late in transition.
The standard path is to take hormones first and then have surgery if required, just as with other conditions — it would be bizarre not to cover knee surgery if the patient had ever taken painkillers, but this is the situation with trans medicine.
The result is that surgery must be paid out-of-pocket, which means that trans people without the roughly ¥3 million needed for the procedure cannot change their gender marker. The law thus discriminates against trans people to the degree that their lives are precarious.
The ruling illustrates how current Japanese policies on trans issues are out of step with advances in medical understanding of transgender health and social trends. Taking these things together, it seems time to re-evaluate the laws relating to same-sex marriage, gender transition and trans medicine.
Elin McCready is a professor at Aoyama Gakuin University in Tokyo. She is the author of “Reliability in Pragmatics” and the forthcoming “The Semantics and Pragmatics of Honorification,” both published by Oxford University Press.