By John Lewis and Stuart Gaffney–
In July, we reported on a major breakthrough for transgender rights in Japan. A five-judge panel of the Japanese Supreme Court issued a unanimous ruling in favor of a transgender government employee who had for years been denied the right to use the work bathroom that matched her true gender. The panel wrote that the ability of a person to live their life in accord with their true gender was a compelling interest that was legally protected. We expressed hope that the decision would be “a harbinger of things to come.”
Last week that hope was realized when the Grand Bench of all 15 Justices of the Japanese Supreme Court issued a unanimous landmark ruling holding that Japan’s draconian statute requiring that a transgender person be sterilized in order to legally change their gender was unconstitutional. The court opined that the law forced transgender Japanese to face the “cruel choice between accepting the sterilization surgery that causes intense bodily invasion and giving up important legal benefits of being treated according to their gender identity.”
To underscore the magnitude of the ruling, it marked only the 12th time that the Japanese Supreme Court has declared a statute unconstitutional in the 76 years since Japan’s post-war Constitution was enacted in 1946. As much more remains to be accomplished when it comes to LGBTIQ rights in Japan, we believe the decision lays the groundwork for further much-needed change.
In addition to the sterilization requirement, Japanese transgender people must meet other outdated and oppressive preconditions in order to change their gender legally. Not only must trans people be unmarried, have no children under 18 years old, and receive a psychiatric diagnosis of gender dysphoria, but they must also have genitalia “resembling those of the gender sought in the change.”
The plaintiff in last week’s Supreme Court case, whose name has not been revealed, is a single transwoman in her 40s who does not have children. She also challenged the genitalia appearance requirement. However, the Court declined to address this claim because the lower appellate court had not considered it. The Supreme Court returned the issue to the appellate court for further deliberation, but the issue seems very likely to return to the Supreme Court soon.
Three of the Justices opined in last week’s decision that the plaintiff should be allowed to change her legal gender immediately without further review by the lower court. Last week’s decision provides powerful precedent for the entire Court to strike down the genitalia appearance requirement too, given that it necessitates invasive surgery for many transgender people, among many other problematic aspects of the restriction.
Another remarkable aspect of last week’s Grand Bench decision was that it reversed a Supreme Court four-judge panel decision just four years ago that upheld the sterilization requirement. Significantly, the Grand Bench expressly cited changing social attitudes toward gender diversity as part of the rationale for their decision. The Court’s recognition of this change is also encouraging for the marriage equality lawsuits across Japan that are working their way through the courts to the Japanese Supreme Court. Public opinion polling shows consistently increasing majorities in favor of marriage equality in Japan.
Despite all of these reasons to applaud the Grand Bench decision, the plaintiff herself said frankly that she was “disappointed” by it because she could still not change her gender legally given the appearance requirement. In the words of her lawyer, more litigation means “further scrutiny about the inside of her underpants.” The plaintiff has good cause to be disappointed. The governing conservative party in Japan should never have passed the regressive law in the first place 19 years ago. Transgender and other LGBTIQ people, and indeed no one, should have to prove their legal right simply to be who they are.
Furthermore, complete victory at the Japanese Supreme Court on all counts would not solve the problem once and for all. Unlike the American system of governance, the Japanese system does not give the Supreme Court the power to invalidate a federal law and render it unenforceable by declaring it unconstitutional. Although decisions like the present one exert enormous pressure on the Japanese Parliament to repeal or amend the law, the Parliament must still do so.
Gen Suzuki, a transman who won a lower court ruling in a similar case earlier last month, credited the hard work of members of the LGBTIQ community themselves for bringing about the change the Supreme Court observed. He told Nikkei Asia that “the impact of grassroots activism is huge.”
We agree. One of the magical aspects of participating in LGBTIQ grassroots activism is that you never know what positive effects seemingly small things we say or do may have on changing people’s hearts and minds, including those of people in positions of great power. We do not know whether the plaintiff in last week’s Supreme Court case is a longtime activist or simply wanted to be able to change her gender legally. Either way, she’s an activist now. Her standing up for herself in an honest and positive way furthers the very societal acceptance of gender diversity that served as one of the bases for last week’s historic step forward.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
6/26 and Beyond
Published on November 2, 2023
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