The Japanese Transgender Law: Identity, Recognition, and Reform

By Vishwajeet Deshmukh
Vishwajeet Deshmukh is an undergraduate law student at Government Law College, Mumbai.

Gen Suzuki, a 46-year-old Japanese transgender man, has filed a court motion to have his legal gender recognized as male without undergoing sterilization surgery, as the Japanese national law requires [1]. As prescribed by the Gender Identity Disorder (GID) Special Cases Act of 2003, applicants must undergo a psychological assessment and be surgically sterilized to legally change their “gender” on documentation. Additionally, they should also be single and have no children under the age of twenty [2].

Japanese National Law on Transgender People

In Japan, the process of altering an individual's legal gender is archaic and detrimental. Japan bases its laws on the obsolete and derogatory concept that a transgender identity is a mental health issue. It compels transgender people seeking formal recognition to undergo lengthy, costly, intrusive, and irreversible medical treatments [3].

Japan’s Gender Identity Disorder Special Cases Act of 2003 violates international human rights law and medical best practices [4]. In addition to designating a person with GID, the Act essentially demands that a person undergo gender reassignment surgery for their gender to be legally recognized. The Act mandates the removal of the gonads or gonadal function under Article 3(iv) and the insertion of external sexual organs that resemble those of the opposite biological sex under Article 3(v).  Given these constraints, the capacity to legally change one's gender is restricted to individuals who have had sex reassignment surgery [5].
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The condition that a transgender individual should not have minor children for the government to recognize their gender identity formally violates the right to privacy and family life. Compulsory surgical procedures coerce the individual to subject themself to physical and mental health risks. Legal gender recognition is also an essential component of other fundamental rights, such as privacy and the right to free speech and expression in a public sphere [6].

The Judicial Rulings on the Act
The Japanese Supreme Court rejecting an appeal filed by Takakito Usui ruled in January 2019 that the legislation requiring transgender persons to undergo gender-change surgery to have their gender altered on official papers is constitutional [7].

In the case before the Court, a transgender person who had not had their reproductive glands surgically removed asked the courts to legally recognize them as a male. This plea was denied by the lower courts. The Supreme Court noted in its decision that the necessity for surgical intervention of reproductive glands inhibits a person's freedom not to have their body "invaded" [8]. The Court, on the other hand, agreed with the logic of the Act on Special Cases, which stated the following two points:

(i) When a parent whose biological gender differs from their legal gender has a child after changing their legal gender, this "creates difficulties" in the parent-child connection.
(ii) Because gender divisions in society have long been created based on identified sex, abrupt changes to gender-related social norms that might have a negative impact on society should be avoided [9].

The Court then noted that the legality of the law's provision must be considered in light of its need and rationality in society's attitudes on transgender people and the Japanese family structure. The Justices of the Supreme Court included an opinion explicitly requesting the Diet (Japan’s Parliament) to conduct a review of the Special Act [10].

International Attitude 

The World Health Organization (WHO) removed "gender identity disorders" from the International Classification of Diseases in 2019. Nations have until January 2022 to update their diagnostic coding systems, implying that the term should no longer be used worldwide [11].

Similarly, medical expert groups have advised countries to eliminate medical criteria from legal gender recognition procedures. In 2012, the American Psychiatric Association (APA) had eliminated "transsexualism" and "gender identity disorder" as "mental illnesses” [12]. 

Similar discriminatory and abusive laws may be found in other legal systems across the world. Legislatures, domestic courts, and regional human rights tribunals and agencies have determined that such mandates violate human rights legislation in recent years. In recent years, governments throughout the world have reduced sterilization requirements or established regulations that do not require surgery at all. Some countries, including Sweden and the Netherlands,  have recognized previously forced sterilizations of transgender people as violations of human rights, and they have compensated survivors [13].

Administration officials from the United Nations and the World Professional Association for Transgender Health have recommended Japan repeal the discriminatory provisions of the law and treat trans persons and their families equally with other citizens [14]. 

Conclusion
Achieving the right to legal gender recognition is critical for transgender people to transition from a life of marginalization to one of social equality and dignity. The Japanese government should quickly evaluate and amend its law in accordance with its international human rights responsibilities and medical best practices in order to provide transgender people with a transparent and speedy administrative procedure to alter their legal gender. The case by Gen Suzuki is an opportunity for the Japanese judiciary to revisit the law from an inclusive perspective. 


[1] NEWS, KYODO. 2021. "Transgender Man In Japan Wants Switch Recognized Without 
Surgery". Kyodo News+. https://english.kyodonews.net/news/2021/10/677abc2dd843-transgender-man-in-japan-wants-switch-recognized-without-surgery.html. 

[2] The Act on Special Cases in Handling Gender Status for Persons with Gender Identity 
Disorder (Act No. 111 of 2003, amended by Act No. 53 of 2011, Japanese Law Translation website (in Japanese and English))

[3] Hikita, Kyoko. "Can human rights of a sexual minority in Japan be Guaranteed? A 
Comparison with Taiwan's efforts for Gender Equality." Journal of Asian Women's Studies 24 (2018): 1-23.

[4] Iemelianenko, Volodymyr, Gornostay Alesia, and Maslak Nataliya. "COERCED 
STERILIZATION AS A REPRODUCTIVE RIGHTS VIOLATION." Wiadomosci Lekarskie (Warsaw, Poland: 1960) 73, no. 12 cz 2 (2020): 2902-2908.

[5] Itani, Satoko. "Sick but legitimate? Gender identity disorder and a new gender identity 
category in Japan." In Sociology of diagnosis. Emerald Group Publishing Limited, 2011.

[6] Taniguchi, Hiroyuki. "Japan's 2003 Gender Identity Disorder Act: The sex reassignment 
surgery, no marriage, and no child requirements as perpetuations of gender norms in Japan." APLPJ 14 (2012): 108.

[7] Special appeal case against decision to dismiss appeal against trial for dismissal of motion for 
change of treatment of gender. 2019, Shumin No. 261 page 1 2018 (Heisei 30) 269. The Supreme Court of Japan.

[8] Ibid.

[9] Japan: Law Requiring Surgery for Legal Change of Gender Ruled Constitutional. 2019. Web           Page.https://www.loc.gov/item/global-legal-monitor/2019-04-12/japan-law-requiring-surgery-for-legal-change-of-gender-ruled-constitutional/.

[10] Ibid. 

[11] Fernández Rodríguez, MaFernández Rodríguez, María. 2018. "Gender Incongruence Is No 
Longer A Mental Disorder." JOURNAL OF MENTAL HEALTH AND CLINICAL PSYCHOLOGY 2 (5): 6-8. doi:10.29245/2578-2959/2018/5.1157.ría. 2018. 

[12] Heffernan, Dani. 2012. "The APA Removes "Gender Identity Disorder" From Updated 
Mental Health Guide". GLAAD. https://www.glaad.org/blog/apa-removes-gender-identity-disorder-updated-mental-health-guide.

[13] Dunne, Peter. 2017. "Transgender Sterilisation Requirements In Europe". Medical Law 
Review 25 (4): 554-581. doi:10.1093/medlaw/fwx028. 

[14] "Reform Japan’S Law On Transgender People". 2019. Wpath.Org. 
https://www.wpath.org/media/cms/Documents/Public%20Policies/2019/WPATH%20Letter%20to%20Japanese%20Gov%20Officials%20re%20Identity%20Recognition_May%20%2028%202019.pdf. 

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