Judgments of the Supreme Court

Search Results

2018 (Ku) 269

Date of the judgment (decision)

2019.01.23

Case Number

2018 (Ku) 269

Reporter

Title

Decision concerning Article 3, paragraph (1), item (iv) of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder and Article 13 and Article 14, paragraph (1) of the Constitution of Japan

Case name

Case of special appeal to the Supreme Court against the ruling to dismiss an appeal against the ruling to dismiss a request for a change in the recognition of gender status

Result

Decision of the Second Petty Bench, dismissed

Court of the Prior Instance

Hiroshima High Court, Okayama Branch, Decision of February 9, 2018

Summary of the judgment (decision)

Article 3, paragraph (1), item (iv) of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder is not in violation of Article 13 and Article 14, paragraph (1) of the Constitution of Japan.

(There is a concurring opinion.)

References

Article 13 and Article 14, paragraph (1) of the Constitution of Japan and Article 3, paragraph (1), item (iv) of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder



Constitution of Japan

Article 13

All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

Article 14, paragraph (1)

(1) All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.



Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder

(Rulings of Changes in Recognition of Gender Status)

Article 3, paragraph (1), item (iv)

(1) A family court may make a ruling of a change in the recognition of the gender status of a person who is a Person with Gender Identity Disorder and who falls under all of the following items, at the request of such person:

(iv) has no reproductive glands or whose reproductive glands have permanently lost function.

Main text of the judgment (decision)

The appeal is dismissed

The costs of the appeal shall be borne by the appellant.

Reasons

Reasons for an appeal stated by the counsel for appeal, OYAMA Tomoyasu

Under the provision of Article 3, paragraph (1), item (iv) of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder which stipulate, as the requirement for a person with gender identity disorder to receive a ruling of a change in the recognition of the gender status, that the relevant person is a person "who has no reproductive glands or whose reproductive glands have permanently lost function" (hereinafter referred to as the "Provision"), if a person with gender identity disorder wishes to receive such ruling, he/she must generally undergo a surgery to remove reproductive glands. The Provision does not force persons with gender identity disorder in general to undergo the abovementioned surgery but some persons with gender identity disorder may be compelled to undergo the abovementioned surgery to receive such ruling although he/she may not wish to go so far as undergoing the abovementioned surgery; it is undeniable that the Provision has an aspect to constrain the freedom of persons to receive no invasion into their bodies against their will. However, the Provision may be construed to be based on considerations for preventing any social confusion due to issues concerning the parent and child relationship arising as a result of a child born using the reproductive function of the original gender status of a person who received such ruling, and avoiding rapid changes amid the situation where gender status had long been distinguished based on biological gender status. The necessity and appropriateness of the manner of giving such considerations may change according to the changes, etc. in the social circumstances concerning the recognition of gender status according to the gender identity and understanding of the family system, and it should be said that constant examination is required to determine whether such provision is in compliance with the Constitution. However, when the purpose of the Provision, the manner of the abovementioned constraint and the current social circumstances, etc. are compared and examined in a comprehensive manner, the Provision cannot be said to be in violation of Article 13 and Article 14, paragraph (1) of the Constitution of Japan at this point of time.

The Provision should be construed as described above, and it should be said that this is obvious in light of the purport of the precedents of the Supreme Court (judgment of the Grand Bench of the Supreme Court of July 20, 1955, 1953 (O) 389, Minshu Vol. 9, No. 9, at 1122; judgment of the Grand Bench of the Supreme Court of May 27, 1964, 1962 (O) 1472, Minshu Vol. 18, No. 4, at 676; judgment of the Grand Bench of the Supreme Court of December 24, 1969, 1965 (A) 1187, Keishu Vol. 23, No. 12, at 1625). The counsel's arguments cannot be accepted.

Accordingly, the Court unanimously decides as set forth in the main text of the decision. There is a concurring opinion of Justice ONIMARU Kaoru and Justice MIURA Mamoru.

The concurring opinion of Justice ONIMARU Kaoru and Justice MIURA Mamoru is as described below.

1. The Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder (hereinafter referred to as the "Act on Special Cases") provides for special cases in handling gender status under laws and regulations for persons whose biological gender is evident, but who hold a persistent conviction under which they psychologically identify themselves as being of the opposite gender, and who have the intention of physically and socially conforming with the opposite gender, and have received concurrent diagnoses on such identification with the opposite gender from two or more physicians. This Act can be construed to have been enacted in light of the current situations of persons with gender identity disorder who are suffering distress in relation to gender dysphoria and facing various problems in their social lives and for the purpose of improving the effect of treatments for such persons and eliminating the social disadvantages suffered by them. Any person who has received a ruling of change in the recognition of the gender status pursuant to the Act on Special Cases is eligible to have necessary changes made to their family register and to have their gender status after the change stated in administrative documents based on laws and regulations in addition to being entitled to get married in the gender status existing after the change; their disadvantages in social life will thus be eliminated.

In addition, since gender status is handled as one of the attributes of an individual in social life or human relationships, it can be said to be inextricably linked to the existence of an individual as a person. Thus, it is an important and almost compelling legal interest for persons with gender identity disorder to receive a ruling of change in the recognition of the gender status pursuant to the Act on Special Cases.

The Provision stipulates one of the requirements for persons with gender identity disorder to receive a ruling of change in the recognition of the gender status at their request; it does not force them to remove their reproductive glands through a gender reassignment surgery regardless of their will. However, generally, such persons may not receive the abovementioned important legal interests and their social disadvantages will not be eliminated under the Provision unless they undergo such surgery.

Moreover, at the time when the Act on Special Cases was enacted, the gender reassignment surgery was conducted, in principle, as a treatment to be made in the final stage for persons who were still suffering strong distress in relation to their physical gender even after receiving treatments in the first stage (treatments in the psychiatric area) and the second stage (hormone treatments, etc.). However, following the subsequent professional examinations based on clinical experience, currently, this surgery is regarded as one of the optional treatments which persons with gender identity disorders can basically choose to receive or not, instead of being regarded as a treatment to be made in the final stage, based on the diversified symptoms of persons with gender identity disorder, according to the guidelines of the Japanese Society of Psychiatry and Neurology.

Accordingly, persons with gender identity disorders, who have not undergone a gender reassignment surgery to remove reproductive glands, have no choice but to undergo the surgery in order to receive a ruling of change in the recognition of gender status in the hope to receive such change pursuant to the Provision, even if they are unwilling to undergo such surgery.

2. Removal of the ovaries or testes through a gender reassignment surgery in itself is an intense invasion to the body; it is accompanied by the danger for life or body that is common in surgeries in general and produces grave and irreversible consequences of loss of reproductive function. It is construed that the decision to undergo such a surgery is, by rights, left to the free will of the relevant person and that this freedom is secured by Article 13 of the Constitution of Japan as the freedom of any person to receive no invasion into his/her body against his/her will. In light of the findings described in 1 above, the Provision should be said to have an aspect that constrains such freedom.

Based on such findings, the Justices will examine whether or not such constraint on freedom can be accepted as being necessary and reasonable by comparing and examining, in a comprehensive manner, the purpose of the Provision, content and nature of the freedom and the manner and degree, etc. of such constraint.

As stated in the Court's opinion, the purpose of the Provision may be construed to be based on considerations for preventing any social confusion due to issues concerning the parent and child relationship arising as a result of a child born using the reproductive function of the original gender status of the person who received such ruling and avoiding rapid changes amid the situation where gender status had long been distinguished based on biological gender status.

However, as stated above, persons with gender identity disorder are persons whose biological gender is evident, but who hold a persistent conviction under which they psychologically identify themselves as being of the opposite gender, and who have the intention of physically and socially conforming with the opposite gender, and thus, it would be extremely rare for such persons to get pregnant or give birth using the reproduction function of their original gender status after their recognition of gender status has been changed, and confusion to be caused by such events will also be limited to a considerable degree.

In addition, the necessity, etc. to give considerations as mentioned above may change according to the changes in social circumstances, etc. and the Act on Special Cases has stipulated in paragraph (2) of the Supplementary Provisions at the time of the enactment in 2003 to the effect that "[t]he range of persons with gender identity disorder who may request a ruling of change in recognition of gender status, and other aspects of the system regarding rulings of change in recognition of gender status are to be reviewed approximately three years after this Act comes into effect, taking into consideration matters such as the status of the enforcement of this Act and changes in the social environment surrounding persons with gender identity disorder, etc.; and measures are to be taken as required based on the result of such review, if said measures are found to be necessary." Based on such provision, the Act on Special Cases was amended to relax the requirements of "currently having no child" under Article 3, paragraph (1), item (iii) and allow changes in the recognition of gender status of a person with a child who is an adult; it was legally accepted that a child who is an adult may have a man as his/her mother and a woman as his/her father. It has also been stipulated in paragraph (3) of the Supplementary Provisions of the Act amending the Act on Special Cases that "[t]he system regarding rulings of change in recognition of gender status for persons with gender identity disorder is to be reviewed as required, based on the status of the enforcement of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder as revised by this Act, and taking into consideration the status of persons with gender identity disorder and persons concerned therewith, along with other circumstances," and it has been a decade since then.

After more than 14 years from the enforcement of the Act on Special Cases, more than 7,000 persons have been allowed to have their recognition of gender status changed. Moreover, recently, in various areas of society including schools and companies, efforts have been promoted to enable persons with gender identity disorder to be treated according to their gender identity; corresponding changes can be presumed to have been caused in the citizen's awareness and social acceptance.

In light of the social circumstances, etc. described above, comparing and examining, in a comprehensive manner, various circumstances such as the purpose of the Provision, content and nature of the relevant freedom and manner and degree of the constraints on such freedom as described above, one cannot go so far as finding the Provision to be in violation of Article 13 of the Constitution of Japan but it is undeniable that doubts for such violation are arising.

3. At the time when the Act on Special Cases was enacted, in many countries around the world, loss of reproductive ability was required for a change in the recognition of gender status of persons with gender identity disorder. However, in 2014, organizations including the World Health Organization issued declarations opposing to such requirement, and in 2017, the European Court of Human Rights rendered a judgment holding that such requirement constitutes violation of the European Convention on Human Rights; currently, more and more countries are deleting such requirement.

The distress suffered by persons with gender identity disorder in relation to their gender status is an issue that should be solved by society, which should embrace diverse gender identity. In that sense, it is desired that various issues surrounding persons with gender identity disorder, including the issue concerning the Provision, further receive deeper understanding among a wide range of persons and be appropriately handled in each situation from the viewpoint of respecting the personality and individuality of each person.

Presiding Judge

Justice MIURA Mamoru

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki

Justice KANNO Hiroyuki

(This translation is provisional and subject to revision.)