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Tokyo, Japan. On the final day of celebrations in May 2018, Tokyo’s Rainbow Pride Parade marched through Shibuya and Harajuku.
Tokyo CNN –
Japan’s top court has ruled that the government’s requirement to sterilize transgender people before they can be legally recognized is unconstitutional, a victory for the country’s LGBTQ community that the LGBTQ community has been preparing for years.
Under a law passed 20 years ago, transgender people who want to change their identification documents must have been diagnosed with “gender identity disorder,” be at least 18 years old, be unmarried and have no minor children.
They must also have sexual organs similar to those of the opposite sex and have no reproductive capacity. This means they must have undergone invasive procedures including sterilization and plastic surgery.
The law has long been criticized by human rights groups, and previous court challenges have been dismissed — until this case, brought by a transgender woman who wanted to change her legal gender from male to female without surgery.
According to public broadcaster NHK, the plaintiff argued that years of hormone therapy had already affected her ability to reproduce.
Her case had been dismissed by a family court and a higher court before reaching the Supreme Court. On Monday, the court ruled in their favor, declaring that the provision requiring sterilization was “a violation” of the Constitution.
“The restriction of freedom from bodily harm under this regulation has now become increasingly unnecessary and the extent of the restriction has become more serious.” Therefore, the regulation in question is not necessary and appropriate,” the court’s decision states.
It added that reproductive rights “are considered fundamental human rights” under the Constitution. “The fact that they must be involuntarily deprived of their reproductive capacity in order to reconcile their self-identified gender with their legal gender is a cruel decision,” the ruling said.
The historic decision marks only the 12th time since World War II that the Supreme Court has ruled a legal provision unconstitutional, forcing Japan’s parliament to review the law, NHK reported.
However, this does not mean that the entire law will be changed, but only the provision that requires sterilization.
The Supreme Court declined to rule on the other provision requiring transgender people to have genital organs “similar” to the opposite sex, saying it was constitutional. That part of the case will be sent back to a lower court for consideration, Monday’s decision said, adding that the requirement does not “directly compel” transgender people to undergo surgery.
The ruling was met with mixed reactions – some praise and cheers within the LGBTQ community, but also concern about remaining surgical requirements and general societal attitudes.
At a press conference after the verdict, the plaintiff’s lawyer, Kazuyuki Minami, read a statement from the plaintiff in which she said she was “extremely surprised by the unexpected outcome.”
“It is very regrettable that (my) gender reassignment surgery was not approved by the Grand Chamber of the Court and the proceedings were adjourned,” she said in the statement – but added: “I am glad that the outcome of these proceedings will prevail. “in a positive direction.”
Lawyer Minami added that there are “really very few” rulings that find existing laws unconstitutional, which makes this ruling “very significant.” However, he acknowledged, “It’s frustrating that we didn’t get to the best outcome that (the plaintiff) wants.”
Ken Suzuki, a law professor at Japan’s Meijin University who specializes in LGBTQ issues, described the court’s decision as a “half-decision” and said community members are still waiting for the lower court to decide whether other surgeries are necessary will be to have genitals.” “similar” to the opposite sex.
“Still, it gives them hope,” he said, calling it a “revolutionary verdict.” “A lot of people can see that the jurors are actually very interested in the topic.”
The National Coalition to Legislate for Persons with Difficulties Based on Sexual Orientation and Gender Identity, also known as the LGBT Law Coalition, also welcomed the decision – but said it hoped the Supreme Court would make a “fair decision” on the rest of the requirements Transgender people.
The organization also expressed “strong regret” about recent discriminatory incidents against transgender people, including widespread “fear and anxiety” about transgender people being able to use the restrooms of their choice.
Earlier this summer, the Supreme Court ruled against a government agency that banned a transgender employee from using the women’s restroom – the first ruling affecting the rights of sexual minorities in the workplace, according to NHK.
Much of Japan has long held conservative views on LGBTQ issues – and while polls in recent years suggest attitudes are changing, activists say discrimination is still widespread. Japan, for example, is the only Group of Seven (G7) country where there is no legal protection for same-sex relationships.
This spring, the government came under increasing pressure to pass a law to promote understanding of the LGBTQ community before it hosts the G7 leaders’ summit in May – but the dispute over the bill led to it failing to do so was only presented to Parliament the day before the summit began.
In the end, the bill that passed was a watered-down version of what activists had hoped for, with no human rights guarantees — and even language that could tacitly promote certain forms of discrimination, critics say.