2023.10.25

2020 (Ku) 993

Minshu Vol. 77, No. 7

(Civil Case) Judgment on 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 of the Constitution

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

Decision of the Grand Bench, quashed and remanded

Hiroshima High Court, Okayama Branch, Order of September 30, 2020

Article 3, paragraph (1), item (iv) of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder is in violation of Article 13 of the Constitution.(There are individual opinions.)

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

The order in prior instance is quashed.
This case is remanded to the Hiroshima High Court.

Concerning the reasons for the appeal against the ruling stated by the counsel for appeal, YOSHIDA Masafumi, and the counsel for appeal, MINAMI Kazuyuki.
I. Outline of the Case
1. In this case, the appellant, whose psychological gender is female while the biological gender is male, filed a petition for a ruling of a change in the recognition of the gender status of the appellant under the provisions of Article 3, paragraph (1) of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder (hereinafter referred to as the "Act on Special Cases").
2. Article 2 of the Act on Special Cases defines a person with gender identity disorder as a person whose biological gender is evident, but who holds a persistent conviction under which they psychologically identify themselves as being of the opposite gender, and who has the intention of physically and socially conforming with the opposite gender, and has received concurrent diagnoses on such identification with the opposite gender from two or more physicians equipped with the necessary knowledge and experience to give accurate diagnoses on this matter, based on generally accepted medical knowledge (hereinafter, when the term "person with gender identity disorder" is referred to, its meaning is in accordance with this definition), and Article 3, paragraph (1) thereof provides that a family court may make a ruling of a change in the recognition of the gender status (hereinafter referred to as the "Ruling of Change in Recognition of Gender Status") of a person who is a person with gender identity disorder and who falls under all of the items of the same paragraph.
While Article 3, paragraph (1), item (iv) of the Act on Special Cases (hereinafter referred to as the "Provision") provides that the person "has no reproductive glands or the person's reproductive glands have permanently lost function," it is understood that in order to fall under the Provision, it is necessary to undergo gonadectomy surgery (surgery to remove the testicles or ovaries as internal genitals) unless there are circumstances such as where all gonadal function has been permanently lost due to the administration of anticancer drugs or other reasons. According to the facts determined by the court of prior instance, the appellant has not undergone gonadectomy surgery, and there seems to be no aforementioned circumstance with respect to the appellant.
3. The court of prior instance determined that the appellant was a person with gender identity disorder and fell under Article 3, paragraph (1), items (i) through (iii) of the Act on Special Cases, but did not fall under the Provision and held that while it was understood that the Provision was based on taking in considerations the possibility of causing confusion in society if a child should be born through the reproductive function of the previous gender of a person who had received a Ruling of Change in Recognition of Gender Status, the mode and other characteristics of such a restriction were reasonable, and it could not be said that the restriction violated Article 13 and Article 14, paragraph (1) of the Constitution and accordingly, the petition in this case should be dismissed.
The court of prior instance has not made any determination on the appellant's argument concerning Article 3, paragraph (1), item (v) of the Act on Special Cases providing that the person "has a body which appears to have parts that resemble the genital organs of those of the opposite gender" (hereinafter referred to as the "Item (v) Provision"), namely, the argument that the appellant falls under the Item (v) Provision and should the appellant not fall thereunder, the Item (v) Provision violates Article 13 and Article 14, paragraph (1) of the Constitution.
4. The appellant argues that the Provision is in violation of Article 13 and Article 14, paragraph (1) of the Constitution and thus invalid.
II. Concerning the Conformity of the Provision to Article 13 of the Constitution
1. The outline of facts related to this case is as follows:
(1) Concerning gender identity disorder
The term "gender identity disorder" means the condition in which a person's biological gender and psychological gender do not match, and for which the person is required to receive treatment from a medical perspective. These days, based on the understanding that a person's psychological gender cannot be controlled by the person's own will, no treatment is given for the purpose of matching psychological gender to biological gender, but psychiatric or physical treatment is given for the purpose of increasing the social adaptability of a person with gender identity disorder to improve the quality of the person's life.
It is said that a person with gender identity disorder, even if having received treatment and begun living in society in accordance with the person's gender identity, suffers from social disadvantages, such as facing situations where the person is forced to reveal the gender identity disorder in situations such as job hunting or not being treated in accordance with the person's gender identity in social life, since the gender in the person's family register, based on which legal provisions apply (hereinafter referred to as the "Legal Gender"), is the biological gender.
(2) Background of the enactment of the Act on Special Cases
a. While, as stated above, treatment is given to a person with gender identity disorder for the purpose of improving such a person's quality of life, the Act on Special Cases was enacted in July 2003, when treatment had been given under the concept of a so-called step-by-step care approach in line with the second edition of the "Guidelines for Diagnosis and Treatment Related to Gender Identity Disorder"(hereinafter simply referred to as the "Guidelines") established by the Japanese Society of Psychiatry and Neurology. This "step-by-step care approach" is the concept under which treatment proceeds through the following three phases, in principle: In the first phase, psychiatric treatment such as moral support is given, followed by physical treatment, hormone therapy, or a mastectomy in the second phase, with gender reassignment surgery (gonadectomy surgery, external genitalia removal, plastic surgery, or the like) being performed in the third phase. Gender reassignment surgery has been regarded as the treatment given in the final phase to a person who continues to have a strong discomfort or dislike of his/her own physical characteristics due to his/her biological gender even after the second phase and feels uncomfortable in social life. In this plan, treatments in the first and second phases were not necessarily terminated by transition to the next phase, and psychiatric treatment or hormone therapy continued to be given beyond the third phase.
In the second edition of the Guidelines, it was stated that a person with gender identity disorder who has passed through the third phase would face material hindrance in the person's social life if the person were not able to obtain a change in Legal Gender.
b. Judging from factors such as reasons for the submission of the bill as deliberated in the Diet, it can be understood that the Act on Special Cases has been enacted to enable the handling of the gender status of a person with gender identity disorder under laws and regulations in accordance with the person's gender identity by meeting certain requirements in order to enhance the effect of treatments given and eliminate any social disadvantages suffered by the person, given that such a person is in a situation where the person has various challenges in social life due to the person's Legal Gender still being the biological gender even though the person lives in society in accordance with the person's gender identity after receiving the medically necessary treatment through the third phase of the step-by-step care approach, premised on the understanding that gender identity disorder is a medical condition listed in the 10th Revised Edition of the ICD (International Classification of Diseases) as formulated by the WHO.
c. Based on discussions in the phase of drafting the Act on Special Cases, the Act has in its Supplementary Provisions the provision that the range of persons with gender identity disorder who may request a Ruling of Change in Recognition of Gender Status and other aspects are to be reviewed, taking into account matters such as the situation of the enforcement of the Act on Special Cases 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.
Furthermore, Article 3, paragraph (1), item (iii) of the Act on Special Cases was amended from the provision that the person "currently has no child" at the time of the enactment of the Act to the provision that the person "currently has no child who is a minor" through the amendment by Act No. 70 of 2008 (hereinafter referred to as the "Amendment of 2008").
(3) Advances in medical knowledge related to gender identity disorder
a. While treatment for gender identity disorder had been based on the concept of a step-by-step care approach at the time of the enactment of the Act on Special Cases, the Guidelines were then reexamined through professional reviews based on clinical experience, and in the third edition presented in January 2006, given that symptoms exhibited by persons with gender identity disorder were varied and the kind of physical treatment required depended on each patient, the concept of the step-by-step care approach was no longer accepted. Specifically, while psychiatric treatment should still be given to a person with gender identity disorder at first, in the event that physical treatment is also deemed necessary, the following phase was revised so that the person can choose to undergo any or all of the following in any order: hormone therapy, mastectomy surgery, gonadectomy surgery, external genitalia removal, plastic surgery, etc.
b. In the 10th Revised Edition of the ICD, gender identity disorder was classified into one of "mental, behavioral, or neurodevelopmental disorders." Following that, since it was pointed out that referring to gender identity disorder as a "disorder" was inappropriate, in the 11th Revised Edition approved in May 2019, gender identity disorder started to be classified as a "condition related to sexual health," and in connection therewith, it was renamed from "gender identity disorder" to "gender incongruence."
(4) Social and other conditions surrounding persons with gender identity disorder
From the time of the enactment of the Act on Special Cases in July 2004 to the present, more than 10,000 persons have received a Ruling of Change in Recognition of Gender Status.
During this period of time, as for the national government, the Ministry of Justice has carried out human rights awareness-raising activities aiming to eliminate any prejudice and other disadvantages on the grounds of gender identity disorder since 2004, the Ministry of Education, Culture, Sports, Science and Technology has issued notices for requests to each board of education or other entity concerned and prepared and distributed manuals for teachers and administrators so that any action taken in the field of education in schools is done so with due consideration to the feelings and other matters of children and students with gender identity disorder since 2010, and the Ministry of Health, Labour and Welfare has also been making efforts by means such as requesting that business operators not exclude sexual minorities in their screening criteria for recruiting workers since 2016. In June 2023, the "Act on Promotion of Public Understanding of Diversity of Sexual Orientation and Gender Identity" was enacted for the purpose of contributing to the realization of a society that is tolerant towards diverse sexual orientations and gender identities. As for local governments, since the enactment in 2013, by Bunkyo City of Tokyo, of the municipal ordinance containing the provision that no one must engage in any discriminatory treatment on grounds such as gender identity or other human rights violations due to gender, local governments have enacted a considerable number of municipal ordinances with provisions having the same effect. Furthermore, in 2017, the Japan Business Federation made a recommendation that companies should urgently make efforts towards the promotion of appropriate understanding of so-called LGBT persons including persons with gender identity disorder and the acceptance of the existence of those persons. Additionally, some women's colleges have been accepting students whose Legal Gender is male but whose psychological gender is female since 2020.
At the time of enactment of the Act on Special Cases, the majority of countries that had established procedures for making changes in recognition of gender status under laws and regulations set loss of fertility as a requirement for the aforementioned change. After that, the WHO and other organizations issued a joint statement that expressed their opposition to the loss of fertility as a requirement in 2014, and the European Court of Human Rights rendered its judgment that such a requirement violated the European Convention on Human Rights in 2017. And at present, the number of countries that do not require the loss of fertility has increased considerably, mainly in Western countries.
2. Based on the above, we would like to review the conformity of the Provision to Article 13 of the Constitution.
(1) Article 13 of the Constitution provides that "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." It is obvious that freedom not to have one's body invaded against one's will (hereinafter simply referred to as the "Freedom from Having the Body Invaded") is guaranteed by the same Article as an important right related to existence with personality respected.
Gonadectomy surgery is surgery to remove the testicles or ovaries and is an intense bodily invasion that involves risk to the life or body of the person and leads to an irreversible result. Accordingly, if a person is forced to undergo such gonadectomy surgery, it should be said that it falls under a material restriction on the Freedom from Having the Body Invaded.
Additionally, the Provision imposes the requirement that only a person with gender identity disorder who requests a Ruling of Change in Recognition of Gender Status by the person's own choice should undergo a gonadectomy surgery, in principle as a premise, and does not directly force persons with gender identity disorder in general to undergo the same surgery. However, it can be said that the Provision demands that a person with gender identity disorder who does not require gonadectomy surgery as treatment for gender identity disorder also undergo the same surgery, in principle, to receive a Ruling of Change in Recognition of Gender Status.
On the other hand, given that Legal Gender is treated as one of the basic attributes of an individual in various aspects of social life, and the situation in which persons with gender identity disorder are placed is as stated above, it should be said that for a person with gender identity disorder, having the gender status under laws and regulations handled in accordance with the person's gender identity is an important legal interest combined with an individual's existence with personality respected. This does not depend on whether or not such a person with gender identity disorder is required to undergo gonadectomy surgery as treatment.
If that is the case, it can be said that the Provision restricts the Freedom from Having the Body Invaded in terms of forcing a person with gender identity disorder who does not require gonadectomy surgery as treatment to undergo the same surgery in order to realize an important legal interest in having gender status under laws and regulations handled in accordance with the person's gender identity, and such a restriction should not be allowed unless it can be said to be necessary and reasonable in light of the importance of the Freedom from Having the Body Invaded, even taking into consideration that the Provision does not directly force persons with gender identity disorder in general to undergo gonadectomy surgery.
It is reasonable to understand that whether the Provision conforms to Article 13 of the Constitution as a necessary and reasonable restriction should be determined by comparing the extent to which the restriction is required for achieving the purpose of the Provision, and the content and nature of the freedom restricted and the specific manner, extent, and other factors of the restriction.
(2) Thus, looking at the purpose of the Provision, it is understood that the Provision is based on considerations such as the possibility of causing confusion in society due to the occurrence of problems related to parent-child relationships if a child should be born through the reproductive function of the previous gender of a person who had received a Ruling of Change in Recognition of Gender Status, or the need to avoid a sudden change in the manner of distinguishing between men and women based on biological gender, which has been long established.
However, persons with gender identity disorder are a minority in society as a whole, and there are a number of persons who request a Ruling of Change in Recognition of Gender Status and undergo gonadectomy surgery as treatment to relieve discomfort or other negative feelings caused by the physical characteristics of their biological gender, and it seems that not a few persons have feelings of resistance towards having a child through the innate reproductive function itself. Accordingly, it is thought that the occurrence of problems related to parent-child relationships due to the fact that a person who has received a Ruling of Change in Recognition of Gender Status has a child without the person having undergone gonadectomy surgery is extremely rare, even if the Provision were not to exist. It is possible to resolve some of the aforementioned problems related to parent-child relationships, including whether or not a legal parent-child relationship is established or how to enter the relationship in a family register, through the interpretation of laws and regulations, legislative measures, or other means. If a person who has received a Ruling of Change in Recognition of Gender Status were to have a child through the reproductive function that came from the person's previous gender, there may occur a situation where a "female father" or a "male mother" exists. On the other hand, the existence of a "female father" or a "male mother" is already acceptable under the Amendment of 2008 in cases where a person with gender identity disorder who has an adult child receives a Ruling of Change in Recognition of Gender Status. Up until now, however, it does not seem that confusion related to parent-child relationships has been caused in society due to this. In addition, approximately 19 years have elapsed since the enactment of the Act on Special Cases, and more than 10,000 persons have received a Ruling of Change in Recognition of Gender Status. Understanding of persons with gender identity disorder is growing, and efforts are also being made in various areas of society towards environmental improvements to resolve problems in the social life of those persons. Thus, it is difficult to say that the possibility of the occurrence of the aforementioned situation becomes an unexpected and sudden change in society as a whole.
According to the above review, it should be said that the need for the restriction under the Provision, which was under consideration at the time of the enactment of the Act on Special Cases, has decreased due to changes in the circumstances that were the premise of the restriction.
(3) Next, based on advances in medical knowledge since the enactment of the Act on Special Cases, the specific manner, extent, and other factors of the restriction under the Provision are considered.
It is understood that the purport of the enactment of the Act on Special Cases is to, by the Ruling of Change in Recognition of Gender Status, enhance the effect of treatment given to and eliminate any social disadvantage suffered by persons who have problems in their social life due to their Legal Gender still being their biological gender even though they have received the necessary treatment for gender identity disorder. At the time of such enactment, gender reassignment surgery, including gonadectomy surgery, was positioned as a treatment in the final phase of the step-by-step care approach. Thus, it can be said that the imposition of a requirement that a person requesting a Ruling of Change in Recognition of Gender Status need undergo gonadectomy surgery was reasonably relevant also from a medical perspective in that persons who had received necessary treatment for gender identity disorder were subject to the requirement. However, after the enactment of the Act on Special Cases, medical knowledge of gender identity disorder has advanced, and awareness about the diversity of the symptoms exhibited by persons with gender identity disorder and the ways in which treatment therefor should be given have become generalized. Thus the concept of a step-by-step care approach need no longer be adopted, and what kind of physical treatment patients require as treatment for gender identity disorder has come to be regarded to depend on each individual patient. Accordingly, deeming a person to have received the necessary treatment is no longer subject to whether the person has undergone gender reassignment surgery, and we have to say that the imposition of the above requirement is no longer reasonably relevant from a medical perspective.
It can be said that, according to the aforementioned advances in medical knowledge, the restriction on the Freedom from Having the Body Invaded under the Provision becomes one that forces a person with gender identity disorder who does not require gonadectomy surgery as treatment to make a harsh choice between two options: The person abandons the Freedom from Having the Body Invaded and accepts gonadectomy surgery as an intense bodily invasion, or the person abandons an important legal interest in having gender status under laws and regulations handled in accordance with the person's gender identity and decides not to receive a Ruling of Change in Recognition of Gender Status. It also should be said that the imposition of such a restriction with no reasonable relevance from a medical perspective to achieve the purpose of the Provision as stated above has become excessive, taking into additional consideration that the number of countries that do not require the loss of fertility for a change in recognition of gender status under laws and regulations has increased.
If that is the case, the Provision imposes an excessive restriction in the manner of forcing a person to choose between the two options as stated above, and accordingly, it should be said that the extent of the restriction under the Provision is severe.
(4) Based on the above, when comprehensively comparing the need, which has now decreased, for the restriction on the Freedom from Having the Body Invaded under the Provision with the extent of the restriction, which has increased in severity, it cannot be said that the restriction is necessary and reasonable.
Therefore, it should be said that the Provision is in violation of Article 13 of the Constitution.
The decision 2018(Ku)269 of the Second Petty Bench of the Supreme Court of January 23, 2019, Saibanshu Minji No. 261, at 1 that draws a conclusion different from the above shall be amended.
III. Conclusion
According to the above, while the Provision is in violation of Article 13 of the Constitution and invalid, the determination of the court of prior instance that has dismissed without prejudice the petition in this case based on opinions different from this misinterprets the same Article. The counsel's arguments are well-grounded as arguments to this effect. The order in prior instance should inevitably be quashed without needing to make a determination on other reasons for appeal against it. This case is remanded to the court of prior instance for further examination on the appellant's argument related to the Item (v) Provision, which has not been determined by the court of prior instance.
Accordingly, the Court unanimously decides as set forth in the main text of the judgment, except for the dissenting opinions stated by Justice MIURA Mamoru, Justice KUSANO Koichi, and Justice UGA Katsuya. There is a concurring opinion by Justice OKA Masaaki.
The concurring opinion of Justice OKA Masaaki is as follows:
While I agree with the majority opinion to the effect that the restriction under the Provision is excessive at the moment and thus the Provision is in violation of Article 13 of the Constitution and invalid, I state a supplementary opinion regarding actions by the legislative body following the decision of this court.
While it is considered that the legislative body will delete the Provision in response to the decision of this court finding the unconstitutionality and invalidity of the Provision, it is naturally allowed moreover to have a new requirement that is less restrictive to achieve the purpose of the Provision or, taking into account the effect that may occur due to the deletion of the Provision, to amend the Act on Special Cases, including other requirements, by making adjustments based on how persons with gender identity disorder who request a change in recognition of gender status are perceived in general society, as long as the content of the new requirement or amendment conforms to the Constitution.
As for the amendment to the Act that came in response to the decision of this court, that action is left completely to the discretion of the legislative body under legislative policy and could involve only deleting the Provision or having a requirement in lieu of the Provision as stated above. It is expected that the legislative body will reasonably exercise such discretion.
The dissenting opinion of Justice MIURA Mamoru is as follows:
Although I agree with the majority opinion to the effect that the Provision is in violation of Article 13 of the Constitution and invalid at the moment, I further think that the Item (v) Provision is also in violation of the same Article and invalid, and accordingly, the order in prior instance should be quashed, the ruling in the first instance should be reversed, and a decision that recognition of the gender status of the appellant as being changed from male to female should be rendered. I state the reasons as follows:
1. Concerning the Provision
(1) Although in the aforementioned decision of the Second Petty Bench of the Supreme Court of January 23, 2019, cited in the majority opinion (hereinafter referred to as the "2019 Decision"), I agreed with the court opinion to the effect that the Provision was not in violation of Article 13 and others of the Constitution at that time, it was doubtful already at that time, as stated in the joint concurring opinion with Justice ONIMARU Kaoru, whether the Provision was constitutional or not.
As stated in the court opinion of the 2019 Decision, whether the Provision is reasonable may be subject to changes in social conditions related to the handling of gender status in accordance with one's own gender identity or understanding of the family system. Thus, it is required that the conformity of the Provision to the Constitution be constantly reviewed, and at the moment, it is also necessary to review this issue based on later occurring circumstances.
(2) With respect to the requirements pertaining to the definition of a person with gender identity disorder, while Article 2 of the Act on Special Cases provides for the "intention of physically conforming with the opposite gender" as one of the requirements which are determined by diagnoses based on generally accepted medical knowledge, it does not specifically provide for the meaning of such an intention with the term "physically" in terms of the extent or degree of conforming. In this respect, such meaning is understood to be left to interpretation premised on the aforementioned medical knowledge which advances with the times.
Generally in Japan, diseases are classified according to the Statistical Classification of Diseases, Injuries, and Causes of Death (currently Ministry of Internal Affairs and Communications Public Notice No. 35 of February 13, 2015) as statistical standards (Article 2, paragraph (9) and Article 28 of the Statistics Act), which is in accordance with the ICD of the WHO.
In the 10th Revised Edition of the ICD at the time of the enactment of the Act on Special Cases, gender identity disorder was classified as a mental disorder. Transsexualism as one of the sub-classifications of gender identity disorder was defined as "a desire to live and be accepted as a member of the opposite gender. Usually, it is accompanied by discomfort or a sense of inadequacy of one's own anatomical gender, and a patient desires to receive surgical treatment or hormone therapy in order to adjust the patient's body to match the patient's preferred gender as much as possible."
The ICD 11th Revised Edition, which is revised from the 10th Revised Edition, was approved in May 2019 and came into effect in January 2022. In the 11th Revised Edition, the term "gender incongruence" was adopted in lieu of gender identity disorder or transsexualism and classified as a condition related to sexual health separately from mental diseases. With respect to gender incongruence in adolescence or adulthood as a sub-classification of gender incongruence, it is explained that "it is characterized by obvious and persistent inconsistency between the gender realized by a person and the gender designated to the person. Such a person often wishes to "transition" in order to live and be accepted as a person with the gender realized by the person, and that is made through hormone therapy, surgical treatment, or other health and medical services in order to adjust the person's body to match the gender realized by the person as much as possible to the desired extent."
It is understood that in the ICD 11th Revised Edition, awareness about the diversity of symptoms exhibited in gender incongruence and ways in which treatment therefor should be given is in line with the diagnostic criteria for gender dysphoria in the DSM (Diagnostic and Statistical Manual of Mental Disorders) Fifth Edition (2013) of American Psychiatric Association and medical knowledge indicated in the Guidelines for Diagnosis and Treatment Related to Gender Identity Disorder, the Fourth Revised Edition (Fourth Edition in 2011 and Fourth Revised Edition in 2018) of the Japanese Society of Psychiatry and Neurology.
Currently, under such general medical knowledge, symptoms including discomfort caused by the physical characteristics of one's biological gender are various and individual. It is understood that the phrase "intention to physically conform with the opposite gender" in Article 2 of the Act on Special Cases includes various intentions. It is obvious, also from the diagnostic criteria of the DSM Fifth Edition that some persons with gender identity disorder do not always desire to make their internal and external genitals conform with the opposite gender but do have the intention of physically conforming with the opposite gender in terms of other secondary sexual characteristics such as the swelling of the breasts, a beard or mustache, or a different vocal register, and it is understood that the ICD 11th Revised Edition is also based on this as a premise. While it is understood that such intention falls under the aforementioned intention in the same Article based on generally accepted medical knowledge as a premise, such persons do not have to undergo gender reassignment surgery, including gonadectomy surgery, as treatment.
As stated in II, 2, (3) by the majority opinion, the imposition of the requirement under the Provision is no longer reasonably relevant from a medical perspective. This is supported by the internationally agreed upon ICD 11th Revised Edition in addition to medical knowledge that has advanced and become generalized under the ICD 10th Revised Edition, and also in light of the interpretation of the definition of a person with gender identity disorder, which is based on the above as a premise, medically reasonable relevance cannot be found in the imposition of the requirement.
(3) In recent years, a so-called partnership system has been rapidly expanding in local governments. While this system varies depending on the local government, generally under the system, an oath by two unmarried persons stating that they are life partners is filed with and accepted by the government which will then certify that fact. The purposes of this system include reducing the social disadvantages of persons who are regarded as sexual minorities in terms of sexual orientation, gender identity, or some other factor and contributing to the formation of a society that respects personality and individuality. After the Shibuya and Setagaya Cities of Tokyo instituted this system in 2015, the system has expanded to other local governments. While such governments totaled approximately 10 municipalities at the time of the 2019 Decision, according to surveys by Shibuya City of Tokyo and others, more than 320 local governments including 14 prefectures, including Tokyo and Osaka, had established this system as of June 28, 2023, accounting for more than 70% of the total population of Japan.
While the system originally covered two persons of the same gender, it is common now for the system to also cover two persons of the opposite gender. It is widely considered to be used by persons with gender identity disorder regardless of whether they have received a Ruling of Change in Recognition of Gender Status or other arrangements. Furthermore, the number of local governments that have established a "familyship" system that includes children and parents in addition to a partnership system has also been increasing recently.
It seems that these systems are expanding and operating in local communities with no major problems. It should be said that this indicates changes in social conditions related to the various ways of being a family, namely, the fact that sexual minorities, including persons with gender identity disorder, form families, raise children, and live a fulfilling social life.
As stated in II, 2, (2) by the majority opinion, with the passing of approximately 19 years since the enactment of the Act on Special Cases, understanding of persons with gender identity disorder is growing, and efforts are also being made in various areas of society towards environmental improvements to resolve problems in the social lives of these persons. It can be said that the partnership system is significant in terms of not only being a public system but also its expansion nationwide.
(4) In addition to the circumstances stated in the joint concurring opinion of the 2019 Decision, when considering and comprehensively comparing the above circumstances, it cannot be said at the moment that the restriction on the Freedom from Having the Body Invaded under the Provision is necessary and reasonable, and it should be said that the Provision is in violation of Article 13 of the Constitution.
In view of the purport of the Act on Special Cases, that of the provisions of Article 2 and the items of Article 3, paragraph (1), and other factors such as the relationships among those provisions, if the Provision is determined to be unconstitutional, it is understood that only the Provision is invalidated and not the Act on Special Cases as a whole. It is obvious that the understanding of the majority opinion is the same.
2. Concerning the Item (v) Provision
(1) While the appellant's argument is that the Provision and the Item (v) Provision violate the Constitution, and the appellant has argued the unconstitutionality of both provisions also in the court of prior instance, the order in prior instance determines that the Provision is constitutional and makes no determination on the appellant's argument about the Item (v) Provision. Thus, in view of this case, I would also like to review the conformity of the Item (v) Provision to the Constitution.
(2) While the Item (v) Provision provides that the person "has a body which appears to have parts that resemble the genital organs of those of the opposite gender," it is understood that it is necessary to undergo, in principle, external genitalia removal and plastic surgery or hormone therapy leading to the aforementioned appearance (hereinafter, this treatment will be referred to as "External Genitalia Removal, etc.") in order to fall under this provision.
External genitalia removal and plastic surgery means, in the case of a biological male, penectomy and vulvoplasty, or in the case of a biological female, urethral lengthening and phalloplasty. These surgical treatments involve risk to the life or body of the person, lead to irreversible or other results, and thus are an intense bodily invasion.
Hormone therapy produces a certain effect of the body physically conforming with the opposite gender through the administration of hormone-related drugs. A reasonable effect may be obtained in terms of having a body that appears to have parts that resemble the genitalia of the opposite gender. While this is less intense than the above surgical treatment, it is also a bodily invasion. Hormone therapy is a long-term treatment that often continues for the rest of the patient's life. The possibility not only of an irreversible change, such as testicular atrophy or loss of spermatogenic function, but also of side effects, such as angina pectoris, liver dysfunction, gallstones, hepatophyma, or pituitary tumors in addition to deadly side effects, such as thromboses, has been pointed out. Furthermore, in principle, it is said that hormone therapy should be administered only to people who have no pre-existing conditions that increase the risk of side effects, such as diabetes, hypertension, coagulation disorder, endocrine disorder, or malignant tumors. From these perspectives, it can be said that hormone therapy is a bodily invasion involving considerable risk or burden to the life or body of the person.
Therefore, if a person is forced to undergo such External Genitalia Removal, etc., it should be said that it falls under a material restriction on the Freedom from Having the Body Invaded.
Furthermore, the Item (v) Provision imposes the requirement that only a person with gender identity disorder who, by the person's own choice, requests a Ruling of Change in Recognition of Gender Status need undergo External Genitalia Removal, etc., in principle as a premise, and does not directly force persons with gender identity disorder in general to undergo External Genitalia Removal, etc. However, it can be said that the Item (v) Provision requires that a person with gender identity disorder who does not require External Genitalia Removal, etc. as treatment for gender identity disorder, for example, a person who does not desire to undergo external genitalia removal or plastic surgery, and fails to have a body that appears to have parts that resemble the genitalia of the opposite gender through hormone therapy or does not desire to continue hormone therapy as there is an actual difficulty due to side effects or disease, also undergo External Genitalia Removal, etc., in principle, to receive a Ruling of Change in Recognition of Gender Status.
On the other hand, given that Legal Gender is treated as one of the basic attributes of an individual in various aspects of social life and persons with gender identity disorder are placed in a difficult situation, it should be said that for a person with gender identity disorder, having the gender status under laws and regulations handled in accordance with the person's gender identity is an important legal interest combined with an individual's existence with personality respected. This does not depend on whether or not such a person with gender identity disorder is required to undergo External Genitalia Removal, etc. as treatment.
If that is the case, it can be said that the Item (v) Provision restricts the Freedom from Having the Body Invaded in terms of forcing a person with gender identity disorder who does not require External Genitalia Removal, etc. as treatment to undergo External Genitalia Removal, etc. in order to realize an important legal interest in having gender status under laws and regulations handled in accordance with the person's gender identity, and such a restriction is not allowed in light of the importance of the Freedom from Having the Body Invaded unless it can be said to be necessary and reasonable, even taking into consideration that the Item (v) Provision does not directly force persons with gender identity disorder in general to undergo External Genitalia Removal, etc.
It is understood that whether the Item (v) Provision conforms to Article 13 of the Constitution as a necessary and reasonable restriction should be determined by comparing the extent to which the restriction is required for achieving the purpose of the Item (v) Provision, and the content and nature of the freedom being restricted as well as the specific manner, extent, and other factors of the restriction.
(3) a. Thus, looking at the purpose of the Item (v) Provision, it is understood that the Item (v) Provision considers the possibility of confusion being caused in social life by a person who does not appear to have parts that resemble the genitalia of the opposite gender, for example, which may cause a problem in a public bath.
With respect to the appearance of the genitalia, usually, there is little chance that others will notice it, and it is an issue limited to situations such as public baths where bathrooms are generally separated by gender through measures taken by business operators under the relevant Act. With respect to public baths, it is provided that persons running a bathhouse business must take necessary measures for the hygiene and public morals of the bathers, and the criteria for the aforementioned measures are prescribed by the individual prefectures in their prefectural ordinances (Article 3, paragraphs (1) and (2), and Article 2, paragraph (3) of the Public Bath Houses Act). As for the criteria under the prefectural ordinances, in response to the technical advice of the Minister of Health, Labour and Welfare ("Directions for Hygiene and Other Management in Public Baths" Notice of Director-General of Environmental Health Bureau, Ministry of Health and Welfare No. 1811 of December 15, 2000, issued by the Environmental Health Bureau), there are provisions, in general, stating that males and females over a certain age should not be allowed to bathe together and bathrooms should be separated by gender as well as other matters. Based on these provisions, bathrooms are separated by gender through measures taken by the persons running the bathhouse business. While there are also similar regulations for the hotel business (Article 4, paragraphs (1) and (2), and Article 3, paragraph (1) of the Hotel Business Act), there are often none of the above provisions for the criteria as prescribed in the prefectural ordinances for communal bathrooms in hotels. In general, those bathrooms are separated by gender through measures taken by the persons running the hotel business (refer to "Directions for Hygiene and Other Management in the Hotel Business" Notice of Director-General of Environmental Health Bureau, Ministry of Health and Welfare as above).
While it is understood that such separation of bathrooms is for the purpose of maintaining public morals and ensuring an environment in which bathers can use the bathrooms with confidence and without feeling embarrassed, this is specifically enforced through measures taken by each business operator, and the separation itself is not a recognition of gender status pursuant to the application of the provisions of laws and regulations (refer to Article 4, paragraph (1) of the Act on Special Cases). In actual use, the Legal Gender of each bather is usually not confirmed through a certificate or other means. It can be said that on the premise that each bather can recognize the physical appearance of other bathers, including that of their external genitalia, bathers are separated into males and females based on their gender-related characteristics of physical appearance. In light of the nature of situations such as public baths where many and unspecified naked people use facilities operated by a business operator, such separation of males and females based on physical appearance is well grounded. The technical advice of the Minister of Health, Labour and Welfare and the criteria under the prefectural ordinances based on this advice are also interpreted in the same manner (refer to the Notice of the Director of the Environmental Health Division, Pharmaceutical Safety and Environmental Health Bureau, Ministry of Health, Labour and Welfare No. 0623 of June 23, 2023, issued by the Pharmaceutical Safety and Environmental Health Bureau), and the aforementioned separation of males and females can be regarded as a norm in social life in the form of measures taken by business operators under the relevant Act. In the Item (v) Provision, requirements for a Ruling of Change in Recognition of Gender Status are provided for based on this norm as a premise, and the Item (v) Provision itself does not set forth such criteria.
b. When making a review based on this, persons with gender identity disorder are a minority in society as a whole, and there are a number of persons who request a Ruling of Change in Recognition of Gender Status and have a body that appears to have parts that resemble the genitalia of the opposite gender by having undergone External Genitalia Removal, etc. as treatment to relieve discomfort or other feelings caused by the physical characteristics of their biological gender. In light of the nature and other characteristics of the norm based on physical appearance as stated above, even if the Item (v) Provision were not to exist, this norm would not be naturally amended, and it is difficult to imagine that any alternative norm would be immediately formed. Furthermore, a person with gender identity disorder is a person recognized to have the intention of physically and socially conforming with the opposite gender based on specific diagnoses by physicians based on treatment (Article 2 of the Act on Special Cases). It is not realistic to assume that such a person intentionally troubles other bathers and causes confusion while also desiring to be accepted as a person of the opposite gender. Given these matters, it is thought that the occurrence of confusion in social life in relation to the use of facilities such as public baths by persons with gender identity disorder would be extremely rare, even if the Item (v) Provision were not to exist.
On the other hand, if there were no Item (v) Provision, it cannot be denied that bathers might feel uneasy about a possible discrepancy between the norm based on physical appearance and the Legal Gender through a Ruling of Change in Recognition of Gender Status. However, even in that case, in light of the nature and other characteristics of the above norm, it is thought that the above norm would still be maintained on a social basis including by persons who have received a Ruling of Change in Recognition of Gender Status. Thus, reasonable action can be taken as necessary so that measures taken by business operators based on this thought as a premise become clearer, for example, action to appropriately set forth the criteria in prefectural ordinances or the measures taken by business operators based on the technical advice of the Minister of Health, Labour and Welfare with respect to separation and use of bathrooms. While the Act on Special Cases provides that a person who has received a Ruling of Change in Recognition of Gender Status is deemed to have been assigned to the opposite gender with regard to the application of the provisions of laws and regulations, the Act expects exceptions that are otherwise provided for by law (Article 4, paragraph (1)). It can be thought that exceptional provisions are made in the relevant Act, for issues in limited situations, namely the use of facilities such as public baths. Given the fact that the above confusion is extremely unlikely to occur, it is considered quite possible to maintain a situation where bathers can use the facilities with the same confidence as they do now.
In connection with this point, it is noted that if the Item (v) Provision were not to exist, a person who had a body that appeared to have male external genitalia would possibly be allowed entrance to facilities such as public baths as a female under the assertion that the person's mental gender was female. However, in the Item (v) Provision, requirements for a Ruling of Change in Recognition of Gender Status are provided for persons with gender identity disorder who are recognized to be so based on specific diagnoses by physicians based on treatment, and even if the Item (v) Provision were not to exist, no person would be permitted to use facilities such as public baths for females just by proclaiming oneself to be female as stated above. If a wrongful act is performed under the current norm, it should be appropriately addressed as an important issue for all bathers in the same manner as it has been before. However, it is obvious that that fact is not reasonably relevant to any restriction on the rights of persons with gender identity disorder.
In addition, approximately 19 years have elapsed since the enactment of the Act on Special Cases and more than 10,000 persons have received a Ruling of Change in Recognition of Gender Status. Understanding regarding persons with gender identity disorder is growing, and efforts are also being made in various areas of society towards environmental improvements to resolve problems in the social lives of such persons. Thus, it is difficult to say that society as a whole has difficulty in understanding such facts as that social confusion is unlikely to occur and that the situation where bathers can still use facilities with confidence and in the same manner as they always had can be maintained even if the Item (v) Provision were not to exist.
According to the above review, it should be said that the need for the restriction under the Item (v) Provision is currently quite low.
c. Also regarding the use of a lavatory or dressing room, it has been pointed out that a person who has a body that appears to have male external genitalia may enter a lavatory or the like meant for females under the assertion that the person's mental gender is female. However, usually in a lavatory or such place, there is little chance that a person's genitalia will come into the view of others, and there is no division based on the appearance of such. Accordingly, it cannot be understood that the purpose of the Item (v) Provision is to avoid confusion in a lavatory or the like. While the fact that users can use lavatories and such places safely and with confidence is an important issue for all users, matters such as the characteristics of each facility (such as a school, company, members-only establishment, or public facility) and its usage situation vary, and it is necessary to take appropriate action depending on actual individual circumstances. The use of a lavatory is indispensable in daily life for people with gender identity disorder, and it is a critical and difficult issue regardless of whether they have received a Ruling of Change in Recognition of Gender Status or not. In a society where various persons coexist, it is necessary that appropriate action be taken depending on actual individual circumstances. Thus, in relation to the use of a lavatory or such place, it is obvious that there are no reasonable grounds for which the restriction under the Item (v) Provision is required.
(4) Next, based on advances in medical knowledge since the enactment of the Act on Special Cases, the specific manner, extent, and other factors of the restriction under the Item (v) Provision are considered.
It is understood that the purport of the enactment of the Act on Special Cases is to, by the Ruling of Change in Recognition of Gender Status, enhance the effect of treatment given to and eliminate any social disadvantage suffered by persons who have problems in their social life due to their Legal Gender still being their biological gender even though they have received the necessary treatment for gender identity disorder. At the time of such enactment, gender reassignment surgery, including external genitalia removal and plastic surgery, was positioned as a treatment in the final phase of the step-by-step care approach, and hormone therapy was positioned as a treatment in the phase prior to that. Thus, it can be said that the imposition of a requirement that a person requesting a Ruling of Change in Recognition of Gender Status need undergo External Genitalia Removal, etc. was reasonably relevant also from a medical perspective in that persons who had received necessary treatment for gender identity disorder were subject to the requirement. However, after the enactment of the Act on Special Cases, medical knowledge on gender identity disorder has advanced, and awareness about the diversity of the symptoms exhibited by persons with gender identity disorder and the ways in which treatment therefor should be given have become generalized. Thus the concept of a step-by-step care approach need no longer be adopted, and what kind of physical treatment patients require as treatment for gender identity disorder has come to be regarded to depend on each individual patient. Accordingly, deeming a person to have received the necessary treatment is no longer subject to whether the person has undergone External Genitalia Removal, etc., and I have to say that the imposition of the above requirement is no longer reasonably relevant from a medical perspective.
Also as stated in 1, (2), on the premise of the diversity of symptoms exhibited by persons with gender identity disorder under current general medical knowledge, it is understood that the "intention of physically conforming with the opposite gender" in the definition of a person with gender identity disorder under Article 2 of the Act on Special Cases includes various intentions, and External Genitalia Removal, etc. may not be required as treatment. Even in light of such interpretation of that definition, the imposition of the above requirement cannot be found to be reasonably relevant from a medical perspective.
It can be said that, according to the aforementioned advances in medical knowledge, the restriction on the Freedom from Having the Body Invaded under the Item (v) Provision becomes one that forces a person with gender identity disorder who does not require External Genitalia Removal, etc. as treatment to make a harsh choice between two options: The person abandons the Freedom from Having the Body Invaded and accepts External Genitalia Removal, etc. as a bodily invasion which is intense or involves a considerable risk or burden, or the person abandons an important legal interest in having gender status under laws and regulations handled in accordance with the person's gender identity and decides not to receive a Ruling of Change in Recognition of Gender Status. It also should be said that the imposition of such a restriction with no reasonable relevance from a medical perspective to achieve the purpose of the Item (v) Provision as stated above has become excessive, taking into additional consideration the facts such as that it is provided for persons with gender identity disorder who are recognized to be so based on specific diagnoses by physicians based on treatment.
If that is the case, the Item (v) Provision imposes an excessive restriction in the manner of forcing a person to choose between the two options as stated above, and accordingly, it should be said that the extent of the restriction under the Item (v) Provision is severe.
(5) Based on the above, when comprehensively comparing the need, which is quite low at the moment, for the restriction on the Freedom from Having the Body Invaded under the Item (v) Provision with the extent of the restriction, which has increased in severity, it cannot be said that the restriction is necessary and reasonable.
Therefore, it should be said that the Item (v) Provision is in violation of Article 13 of the Constitution.
(6) In the case of the Item (v) Provision being determined to be unconstitutional, it is understood that the Item (v) Provision will only be invalidated in the same manner as the Provision. If the Provision and the Item (v) Provision should be invalidated, only requirements pertaining to the definition of a person with gender identity disorder under Article 2 will remain in force in addition to the requirements pertaining to Article 3, paragraph (1), items (i) through (iii) of the Act on Special Cases. Thus, in light of the purport and other matters of the Act on Special Cases, I would like to further review whether the Act on Special Cases will be invalidated as a whole or only the Provision and the Item (v) Provision will be invalidated. It is also an issue whether it will be contrary to the purport and other matters of the Act on Special Cases and equivalent to making new legislation by judicial determination, which is an infringement on legislative power, if a Ruling of Change in Recognition of Gender Status should be rendered pursuant to remaining requirements.
It is understood that the purport of enactment of the Act on Special Cases is to, by the Ruling of Change in Recognition of Gender Status, enhance the effect of treatment given to and eliminate any social disadvantage suffered by persons who have problems in their social life due to their Legal Gender still being the biological gender even though they have received the necessary treatment for gender identity disorder. Article 3, paragraph (1) of the Act on Special Cases provides for requirements for a person who may request a Ruling of Change in Recognition of Gender Status as a person with gender identity disorder who falls under all of the items of the same paragraph. Requirements pertaining to the definition of a person with gender identity disorder provided for in Article 2 are overall basic requirements on one hand, and on the other hand, each requirement pertaining to the items of Article 3, paragraph (1) is an independent and individual requirement both in form and content.
In terms of the purport and provisions of the Act on Special Cases, it is understood that the Act on Special Cases, as its basic matters, permits special cases for handling gender status under laws and regulations with regard to 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 have the intention of physically and socially conforming with the opposite gender, which provides for the psychological and volitional condition of those persons as basic requirements, and who are so recognized through diagnoses by physicians based on generally accepted medical knowledge.
As stated in 1, (2), under current general medical knowledge, the phrase "intention of physically conforming with the opposite gender" in Article 2 of the Act on Special Cases includes various intentions, and gonadectomy surgery or External Genitalia Removal, etc. may not be required as treatment. In addition, the main purpose of the Provision and the Item (v) Provision is to avoid social confusion and the physical condition pertaining to both provisions can be caused by whatever reason. Thus, it cannot be understood that the physical condition is inseparably related to the above intention. Also, looking at the explanations of reasons for the bill proposed at the time of the enactment of the Act on Special Cases and explanations made by the person involved in the legislation of the Act (refer to the "Explanation of the Act on Special Cases in Handling Gender Status for Persons With Gender Identity Disorder" supervised by NOHNO Chieko, a member of the House of Councilors (at that time), NIHON KAJO Publishing Co., Ltd. (2004) and others), it does not seem that the above physical condition is an essential element for the purport of special cases in handling gender status under laws and regulations.
If that is the case, it cannot be said that the requirements pertaining to the Provision and the Item (v) Provision are inseparably related to the purport of and basic matters contained in the Act on Special Cases. It is obviously consistent with the purport of the Act on Special Cases that a person whose physical condition differs from that as pertains to both provisions is also subject to the above special cases, in the case where the person is recognized to be in the psychological and volitional condition pertaining to Article 2 of the Act on Special Cases through specific diagnoses by physicians based on treatment. Given that for a person with gender identity disorder, having the gender status under laws and regulations handled in accordance with the person's gender identity is an important legal interest combined with an individual's existence with personality respected, it has to be said that the invalidation of the Act on Special Cases as a whole on the grounds that both provisions are unconstitutional is contrary to the purpose of the legislation of the same Act.
In view of the above, if the Provision and the Item (v) Provision are determined to be unconstitutional, it is understood that only those provisions will be invalidated, and the ruling should be rendered based on the remaining provisions. It is obvious that this does not change the purport of, or any basic matter contained in, the Act on Special Cases in any way and should not be regarded as an infringement on legislative power.
Therefore, it should be said that the Provision and the Item (v) Provision only are invalidated.
(7) It needs scarcely to be said that if the Provision and the Item (v) Provision should be unconstitutional and invalid, it is still necessary for a determination to be properly made on the psychological and volitional condition pertaining to Article 2 of the Act on Special Cases through diagnoses by physicians based on treatment and generally accepted medical knowledge.
In this regard, the Act on Special Cases provides for, as a requirement, concurrent diagnoses by two or more physicians equipped with the necessary knowledge and experience to give accurate diagnoses on this matter and based on generally accepted medical knowledge (Article 2), and in order for a relevant person to request a Ruling of Change in Recognition of Gender Status, it is provided that the person must submit a medical certificate issued by a physician which states matters such as the results of the aforementioned diagnoses and the progress and results of treatment (Article 3, paragraph (2)). In addition to the same paragraph, matters to be stated in this medical certificate are specified by the Order of the Ministry of Health, Labour and Welfare No. 99 of May 18, 2004, and furthermore, the statement method is specified in detail by the Notice of the Director of the Mental Health and Welfare Division, Department of Health and Welfare for Persons with Disabilities, Social Welfare, and War Victims' Relief Bureau, Ministry of Health, Labour and Welfare No. 0518001 of the same date issued by the Mental Health and Welfare Division, Department of Health and Welfare for Persons with Disabilities and is accompanied by a reference form for the medical certificate. Pursuant to these, it is provided that a medical certificate should include specific statements as to whether or not the person holds a persistent conviction under which the person psychologically identifies himself/herself as being of the opposite gender and has the intention of conforming with the opposite gender, with grounds for the foregoing, and with respect to the progress and results of treatment. As for matters of treatment, they should be classified into moral support, hormone therapy, mastectomy, and gender reassignment surgery, and the report should include the duration, details, and results of each treatment. In addition, statements regarding the situation of physically and socially conforming with the opposite gender should also be included.
Although it will no longer be necessary to state some of these matters if the Provision and the Item (v) Provision are held unconstitutional and invalid, only when specific diagnoses by physicians based on the actual results of treatment, not merely on arguments made by the relevant person or abstract results of diagnoses by physicians, are found to be "concurrent diagnoses by two or more physicians equipped with the necessary knowledge and experience to give accurate diagnoses on this matter and based on generally accepted medical knowledge," will a court determine that such diagnoses fall under the requirements of Article 2 of the Act on Special Cases in the same manner as before.
The Japanese Society of Psychiatry and Neurology has established detailed diagnosis and treatment guidelines for medical professionals through professional reviews based on medical knowledge and clinical experience related to gender identity disorder, and these guidelines have been revised as necessary. The GID Society (Japanese Society of Gender Identity Disorder) was organized for the purposes of promoting research and improving knowledge about gender identity disorder and has also made efforts to establish a GID Society physician certification system under which clinicians equipped with certain knowledge and abilities are certified after studying at expert training sessions. In relation to diagnoses by physicians pertaining to the above requirements, it can be said that these efforts are important circumstances to be considered in determining whether physicians are equipped with the knowledge and experience needed to give accurate diagnoses on this matter and whether diagnoses are based on generally accepted medical knowledge.
Based on the above, it can be said that a court will make a determination on the requirements provided for in the Act on Special Cases based on appropriate grounds, and the propriety of such determination is guaranteed.
3. Conclusion
As above, the Provision and the Item (v) Provision are unconstitutional and invalid, and the appellant's petition is well grounded in light of the remaining requirements provided for in the Act on Special Cases even without determining the applicability of the requirements under the Item (v) Provision. Accordingly, the order in prior instance should be quashed, the ruling in the first instance should be reversed, and the decision that the recognition of the gender status of the appellant be changed from male to female should be rendered.
4. As stated in 1, while I hereby revise the 2019 Decision under a determination at the moment on the constitutionality of the Provision, given that it is thought there are more than a few persons who have been seriously affected by the Provision over the past four years, I would like to add special some comments.
Act No. 70 of 2008, which partially amends the Act on Special Cases, stipulates in paragraph 3 of the Supplementary Provisions that the system regarding Ruling 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 after its amendment by the aforementioned Act and taking into consideration the situations of persons with gender identity disorder and persons related to such persons and other circumstances. While joint statements by the WHO and other organizations and opinions regarding issues such as the Provision as well as judicial precedents and legislative cases in other countries were shared both within and outside of Japan, the 2019 Decision pointed out that the conformity of the Provision to the Constitution needs to be constantly reviewed. However, for over 15 years since the above amendment and even now, the Provision and other issues have not been amended or changed through necessary reviews.
All of the people shall be respected as individuals, and 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. Accordingly, the state is responsible for taking appropriate measures depending on the situation. Especially these days, it is necessary to make a society where everyone can enjoy a vibrant life a reality by removing social barriers and addressing inappropriate norms and practices so as to ensure equal participation in any and all areas of society regardless of gender identity or sexual orientation (refer to the G7 Hiroshima Leaders' Communiqué of May 20, 2023, G7 Schloss Elmau (Germany) Leaders' Communiqué of June 28, 2022, etc.).
Any pain or disadvantage suffered by persons whose designated gender is inconsistent with their gender identity contains a wide range of issues related to their dignity and existence. In any democratic process, the rights and interests of such a minority must not be neglected.
The dissenting opinion of Justice KUSANO Koichi is as follows:
While I have no objection to the decision that the Provision is unconstitutional and invalid, in view of this case, I think it reasonable to render the decision that the Item (v) Provision also be deemed unconstitutional and invalid and the change in the recognition of the gender status of the appellant be accepted. I state the reasons for my thoughts as follows:
1. As long as the Item (v) Provision remains in effect, in order for persons who file a petition for a Ruling of Change in Recognition of Gender Status under Article 3, paragraph (1) of the Act on Special Cases (hereinafter referred to as "Applicants") to receive the Ruling of Change in Recognition of Gender Status, their body must meet the requirements in the Item (v) Provision. However, in order for a person who requests a change in recognition of gender status from male to female to completely meet the requirements in the Item (v) Provision, the person must undergo gender reassignment surgery, a penectomy and a vulvoplasty, and in order for a person who requests a change in recognition of gender status from female to male to completely meet the requirements in the Item (v) Provision, the person must undergo gender reassignment surgery, urethral lengthening and a phalloplasty (the reason for insertion of the term "completely" is the existence of an opinion to the effect that requirements in the Item (v) Provision may be met without undergoing this surgery, as stated in 3 below). However, the surgery itself causes fear or pain to Applicants, and in addition, persons undergoing this surgery must accept the risk of a concomitant infection and other risks to their life and body.
2. An "interest in having gender status under laws and regulations handled in accordance with one's gender identity" is an important legal interest as pointed out by the majority opinion. As long as that is the case, if it is provided that Applicants must undergo such surgery as stated above to enjoy this interest regardless of the fact that the Act on Special Cases already exists, it can be said that the provision constitutes a restriction on the "Freedom from Having the Body Invaded" guaranteed by Article 13 of the Constitution. Therefore, in order for the Item (v) Provision to be constitutional, it is required that the purpose of the Item (v) Provision that imposes the restriction on the above freedom (hereinafter simply referred to as the "Purpose of the Restriction") be legitimate and the means selected by the Item (v) Provision to achieve that purpose be reasonable in light of the Purpose of the Restriction. These points are reviewed below in order:
(1) While generally, in most cases, the Purpose of Restriction under the Item (v) Provision is said to be to avoid the occurrence of confusion in social life in facilities such as public baths, it should be expressed as much as possible in a way that reduces the interest protected by the Purpose of the Restriction to a specific interest that may be enjoyed by natural persons, in order to compare it with a disadvantage given to Applicants by the Item (v) Provision. From this point of view, it would be appropriate to think of the Purpose of the Restriction under the Item (v) Provision as protecting one's "interest in not feeling ashamed, frightened, or disgusted by being forced to see the genitals of the opposite gender against one's will" (hereinafter, this interest will be referred to as the "Interest in Not Being Forced to See the Genitals of the Opposite Gender Against One's Will" (always with double quotation marks to allow for ease of reading)). However, it has been established by judicial precedent that the act of openly exposing the genitals constitutes a crime under Article 174 of the Penal Code (Public Indecency). Even in public baths as typical facilities where the exposure of genitals is exceptionally permitted in certain areas, prefectural ordinances in each local government provide that bathrooms should be separated by gender under delegation of the Public Bath Houses Act. In view of these facts, the "Interest in Not Being Forced to See the Genitals of the Opposite Gender Against One's Will" is an interest worthy of being respected, and the Purpose of the Restriction under the Item (v) Provision of protecting this interest is found to be legitimate.
(2) Thus, the issue is whether it can be said that the means selected to achieve the above Purpose of the Restriction (Item (v) Provision) are reasonable in light of the above Purpose of the Restriction (hereinafter, the issue related to the reasonableness of the means in the so-called purpose and means scrutiny will be referred to as the "Issue of Reasonableness").
In making a determination on the Issue of Reasonableness, there are various opinions under jurisprudence as to what kind of determination framework should be used. However, the substance of the Issue of Reasonableness is the comparison of the interests of the persons concerned, which cannot be measured using common indicators. It is difficult to think that a determination framework that allows such comparison on a universal or typological basis exists a priori. Ultimately, it seems that the best possible way of thinking in considering the Issue of Reasonableness is to explore perspectives that can most clearly show the reasonableness of a determination through trial and error and then, from the "best perspective" found as a result, debate and make a determination on the Issue of Reasonableness. The "best perspective" that may be used in this case would be to compare the society that would emerge if the Item (v) Provision is held constitutional (hereinafter referred to as the "Society Where the Item (v) Provision Is Constitutional") with the society that would emerge if the Item (v) Provision is held unconstitutional and eliminated (hereinafter referred to as the "Society Where the Item (v) Provision Is Unconstitutional"), and review which society can be said to be better in light of the ideas embodied in the Constitution.
3. First, I would like to consider the Society Where the Item (v) Provision Is Constitutional. In this society, Applicants who meet all of the requirements for a change in recognition of gender status under the Act on Special Cases other than the requirements under the Item (v) Provision (hereinafter referred to as "Persons Not Meeting the Requirements under Item (v)") cannot receive a Ruling of Change in Recognition of Gender Status. Therefore, Persons Not Meeting the Requirements under Item (v) are not allowed to enter an area separated by gender, where persons whose gender is different from biological gender of Persons Not Meeting the Requirements under Item (v) are allowed to be with their genitals exposed (hereinafter referred to as the "Allowable Area") in facilities such as public baths, and as a result, no situation where the "Interest in Not Being Forced to See the Genitals of the Opposite Gender Against One's Will" is damaged by such Persons Not Meeting the Requirements under Item (v) can occur. On the other hand, Persons Not Meeting the Requirements under Item (v) must undergo gender reassignment surgery to ensure a change in recognition of gender status, and accordingly, those persons have to accept a violation on the Freedom from Having the Body Invaded or abandon the enjoyment of an interest in having their gender status under laws and regulations handled in accordance with their gender identity. In short, while it can surely be said that the Society Where the Item (v) Provision Is Constitutional is a tranquil society in the respect that the "Interest in Not Being Forced to See the Genitals of the Opposite Gender Against One's Will" is highly unlikely to be damaged by Persons Not Meeting the Requirements under Item (v), such tranquility is only brought about through the constant oppression of Persons Not Meeting the Requirements under Item (v) in terms of their freedom or interest.
Since the genitalia of a person with gender identity disorder may noticeably change in appearance through such means as receiving hormone therapy over a considerable period of time, there is an opinion to the effect that a person with such a noticeable change could meet the requirements under the Item (v) Provision without undergoing gender reassignment surgery. However, even if there are some persons who experience such a change, there is no change in the fact that Persons Not Meeting the Requirements under Item (v) who do not experience such a change will continue to be constantly oppressed in terms of their freedom or interest.
4. Next, I would like to consider the Society Where the Item (v) Provision Is Unconstitutional. In this society, it can be understood that some persons would be concerned that a situation may occur where the entry into the Allowable Area of Persons Not Meeting the Requirements under Item (v) whose recognition of gender status has been changed (hereinafter, if it is clear from the context, the term "Persons Not Meeting the Requirements under Item (v)" is to be used in such a limited meaning) damages the "Interest in Not Being Forced to See the Genitals of the Opposite Gender Against One's Will" held by other users in that Allowable Area. However, attention here must be paid to the two points below:
The first point that should be brought to attention is that the proportion of persons with gender identity disorder in Japan's total population is extremely low according to sources such as published survey results, and among them, even fewer persons fall under the category of Persons Not Meeting the Requirements under Item (v) (since many persons with gender identity disorder undergo gender reassignment surgery willingly due to a desire to match their physical characteristics with those of the opposite gender), and furthermore, fewer persons would intentionally enter the Allowable Area while in full knowledge of the traditional social order in Japan where the "Interest in Not Being Forced to See the Genitals of the Opposite Gender Against One's Will" is respected and try to be there in a way that their genitalia are visible to other users, and even if there were any, the number of such persons would be very small. In view of this point, even if the point stated below is put aside, the possibility of an occurrence of a situation where the "Interest in Not Being Forced to See the Genitals of the Opposite Gender Against One's Will" held by each user in the Allowable Area is damaged by Persons Not Meeting the Requirements under Item (v) is extremely low in the first place.
The second point that should be brought to attention is that all Allowable Areas are under the control of persons engaged in providing these areas for public use in the course of business. Therefore, the person in charge of the Allowable Area operating in the Society Where the Item (v) Provision Is Unconstitutional will be forced to prohibit Persons Not Meeting the Requirements under Item (v) from entering that Allowable Area or allow those persons to enter there (allowance of entry only on limited dates and times or days of the week may be considered), take intermediate measures (making the allowance of entry subject to the wearing of a swimsuit supplied for free or for a fee may be considered), or otherwise establish some other usage rules, after taking into account (i) the interpretation of "male and female" referred to in technical advice given to local governments by the Minister of Health, Labour and Welfare, and in prefectural or municipal ordinances that specify gender divisions in the Allowable Area based on such technical advice (the current above technical advice (No. 0623-1 of June 23, 2023, issued by the Pharmaceutical Safety and Environmental Health Bureau) provides that "males and females" should be divided solely through physical characteristics); and (ii) matters such as the opinions of users in that Allowable Area. However, the provision of services that satisfy more users while preventing trouble among users from occurring would be an urgent need to be met by the person in charge of the Allowable Area additionally from the perspective of the smooth management or appropriate operation of the Allowable Area. Accordingly, it can be expected that all persons in charge of Allowable Areas will, when establishing usage rules in those Allowable Areas for use by Persons Not Meeting the Requirements under Item (v), pay close attention so that the "Interest in Not Being Forced to See the Genitals of the Opposite Gender Against One's Will" held by each user is not damaged and make efforts to thoroughly familiarize users in those Allowable Areas with the details of the established usage rules. As a result, the possibility that the "Interest in Not Being Forced to See the Genitals of the Opposite Gender Against One's Will" held by each user in the Allowable Area is damaged will be even lower.
In short, even in the Society Where the Item (v) Provision Is Unconstitutional, the possibility that the "Interest in Not Being Forced to See the Genitals of the Opposite Gender Against One's Will" would be damaged is extremely low, and on the other hand, the interest in the change in recognition of gender status would be possible to realize for Persons Not Meeting the Requirements under Item (v) without undergoing gender reassignment surgery in this society. Accordingly, oppression of the same persons in terms of their freedom or interest would be reduced significantly (although it cannot be said as "completely" since entry into the Allowable Area is not allowed without limit).
In the Society Where the Item (v) Provision Is Unconstitutional, while it can be anticipated that opinions about the conditions of usage rules in the Allowable Area for Persons Not Meeting the Requirements under Item (v) will become subject to discussion in various public spaces, it cannot be said that, depending on the results of such discussions, there is no possibility that a situation slightly different (naturally, to the extent permitted by the Constitution) from that stated above could be brought about in terms of the freedom and interest of either or both of Persons Not Meeting the Requirements under Item (v) and citizens other than them through additional legislative measures or new judicial determinations. With respect to this possibility, it may be said that the Society Where the Item (v) Provision Is Unconstitutional is a somewhat clamorous society compared to the Society Where the Item (v) Provision Is Constitutional. However, this clamorousness can be understood as efforts and a product thereof to maximize the welfare that can be enjoyed by all citizens while fully respecting the freedom and interest of both Persons Not Meeting the Requirements under Item (v) and citizens other than them.
5. According to the above, the Society Where the Item (v) Provision Is Unconstitutional is a better society than the Society Where the Item (v) Provision Is Constitutional in light of the ideas embodied in the Constitution. Therefore, it cannot be said that the means of the restriction under the Item (v) Provision are reasonable in light of the Purpose of the Restriction under the Item (v) Provision, and it is reasonable to consider the Item (v) Provision as unconstitutional in the same manner as the Provision. It is obvious from case records that the appellant meets the requirements under the Act on Special Cases excluding the Provision and the Item (v) Provision, and accordingly, I consider it reasonable to quash the order in prior instance and render the decision to accept the petition in this case.
The dissenting opinion stated by Justice UGA Katsuya is as follows:
1. I totally agree with the majority opinion on the point that it cannot be said that the restriction on the Freedom from Having the Body Invaded under the Provision is necessary and reasonable, and thus the Provision is unconstitutional. As stated by the majority opinion, currently, gonadectomy surgery is not a treatment in the final phase but just one of the treatment options whose selection is basically left to the relevant person's will. Accordingly, it can be said that gonadectomy surgery should be allowed only with the person's true consent in addition to the confirmation of the need from a medical perspective. Therefore, the system under which a change in Legal Gender is not recognized without undergoing gonadectomy surgery regardless of whether or not there is a medical need or the desire of the person to undergo gonadectomy surgery, forces a person who is already suffering a great disadvantage due to the inconsistency between the gender identified by the person and the Legal Gender to harshly choose between two options: choosing to undergo a gonadectomy surgery that involves risks to the person's life or body in order to match the Legal Gender with the gender identified, or accepting the various disadvantages in social life which arise from the inconsistency between the gender identified and the Legal Gender in order to avoid the gonadectomy surgery and its risks. It is thought that the Provision may foster the unreasonable perception that a person who does not undergo gonadectomy surgery is not a person with a true gender identity disorder, which is not based on medical grounds.
The main reason for which the Provision was made is that if a change in the Legal Gender of a person is recognized while the person retains fertility, a female father or a male mother may exist, which will cause confusion in society. However, as pointed out by the majority opinion, the existence of a female father or a male mother was made legally acceptable by the Amendment of 2008 in the case of such a person having an adult child, and it has not been found to have caused any social confusion in the 15 years or more that have elapsed since the amendment. Separately from a legal perspective, situations where a person who is male in appearance gives birth to a child are extremely rare, if they exist at all, and in addition, situations such as that may occur regardless of a change in Legal Gender. It cannot be found that the Provision has any bearing on the prevention of such a situation. Furthermore, while it is medically possible for a person with gender identity disorder to have a child after a change in gender by using the person's sperm or egg cryopreserved before the person undergoes hormone therapy or gonadectomy surgery, such situations are extremely rare, if they exist at all. In addition, the Provision cannot prevent such a situation and it cannot be found to have any meaning to exist in that respect.
In the first place, a person with gender identity disorder does not suddenly start living according to the gender identified by the person due to a change in Legal Gender. In general, it is thought that the appearance of such a person's gender changes through such means as hormone therapy and further the person's given name is changed with the permission of a family court. The person then lives a life consistent with the gender identified by the person both in appearance and given name. Therefore, it is thought that inconsistencies between the gender suggested by appearance or given name and the Legal Gender would more often cause social confusion.
2. The Provision also involves a serious problem with respect to its violation of reproductive rights, which are the right of self-determination in terms of reproduction. In this respect, also in the joint concurring opinion of the aforementioned decision of the Second Petty Bench of the Supreme Court of January 23, 2019, it was pointed out that the removal of the testicles or ovaries through gender reassignment surgery involves risks to the life or body and leads to the severe and irreversible result of the loss of reproductive function. While it is thought that reproductive rights can also be understood as fundamental human rights guaranteed pursuant to Article 13 of the Constitution, unwilling acceptance of a gonadectomy surgery that causes a person to lose fertility in order to match the gender identified by the person to the Legal Gender is to force the person to choose between two harsh options, and I consider that to be an excessive restriction on reproductive rights.
Although it can be understood that reproductive rights are guaranteed separately from the Freedom from Having the Body Invaded, it is thought that there may be an understanding that those rights are included in the Freedom from Having the Body Invaded. Namely, in 2011, the German Federal Constitutional Court held that the provision that the loss of fertility be required for a change in recognition of gender status was unconstitutional. In that holding, it is stated that human fertility is an element of the right of physical integrity protected pursuant to Article 2, paragraph (2) of the Basic Law for the Federal Republic of Germany.
3. In my opinion, in addition to the Freedom from Having the Body Invaded, for a person with gender identity disorder, having the gender status under laws and regulations handled in accordance with the person's gender identity is essential to the pursuit of happiness and can be said to be one of the fundamental human rights guaranteed under Article 13 of the Constitution. While the Provision and the Item (v) Provision only become problems in connection with the Freedom from Having the Body Invaded, if the right of having gender status under laws and regulations handled in accordance with one's gender identity is one of the fundamental human rights guaranteed pursuant to Article 13 of the Constitution, the question arises whether a restriction on this fundamental human right is permissible in relation to other provisions of Article 3, paragraph (1) of the Act on Special Cases.
An opinion to the effect that the right to have gender status under laws and regulations handled in accordance with one's gender identity is recognized as a right under the Constitution is a leading theory in Japan. In addition, it can be said that it is a considerably leading thought internationally that such a right is guaranteed under international human rights laws or the Constitutions. Namely, in 2011, the German Federal Constitutional Court held that requiring the person with gender identity disorder to undergo gender reassignment surgery for change in the recognition of gender status was unconstitutional. The reasons for that holding are the following two points: (i) an excessive restriction on an individual's physical integrity guaranteed pursuant to Article 2, paragraph (2) of the Basic Law; and (ii) an excessive restriction on the fundamental human rights guaranteed pursuant to Article 1, paragraph (1) of the Basic Law providing for human dignity and Article 2, paragraph (1) of the Basic Law providing for personal freedoms. With respect to the latter (ii), the German Federal Constitutional Court held that human dignity in combination with the fundamental human rights requiring protection of personality requires legal approval of one's gender identity. In 2017, the European Court of Human Rights held that the imposition of the requirement of reproductive inability to change one's Legal Gender was in violation of the European Convention on Human Rights. In that holding, it was stated that the imposition of the requirement of reproductive inability to change one's Legal Gender to be in accordance with the gender identity of a person with gender identity disorder is in violation of the European Convention on Human Rights in terms of not only a violation of the right of physical integrity but also a violation of the right of sexual identity.
While it is possible, since gender identity is diverse, to argue that the denotation of an interest in having gender status under laws and regulations handled in accordance with one's gender identity is not clear, if it is limited to the interest of a person with gender identity disorder as defined in Article 2 of the Act on Special Cases in having the gender status under laws and regulations handled in accordance with the person's gender identity, it is thought that it cannot be always said that the denotation is unclear. By adopting the concept that an interest will not be recognized as a new fundamental human right under the second sentence of Article 13 of the Constitution if the denotation of the interest is even a little unclear, it will be difficult to consider the existence of any new fundamental human right not specified in the Constitution. For new fundamental human rights under the second sentence of Article 13 of the Constitution as clearly recognized so far by this court, the "freedom to not have one's appearance, figure (...) be filmed or photographed without due cause" (1965(A)1187, the judgment of the Grand Bench of the Supreme Court of December 24, 1969, Keishu Vol. 23, No. 12, at 1625), the "freedom not to be forced to have fingerprints taken without due cause" (1990(A)848, the judgment of the Third Petty Bench of the Supreme Court of December 15, 1995, Keishu Vol. 49, No. 10, at 842), and the "freedom not to have one's personal information disclosed to third parties or publicized" (2007(O)403 and 2007(Ju)454, the judgment of the First Petty Bench of the Supreme Court of March 6, 2008, Minshu Vol. 62, No. 3, at 665), in all of these, the uncertain concept of "without due cause" is used. What falls under "without due cause" is not unequivocally clear by any means. There are various discussions in academic circles about its denotation, and it may be disputed in lawsuits as is well known. Moreover, the denotation of fundamental human rights provided for other than in Article 13 of the Constitution is also unclear by any means as is obvious considering the freedoms of expression and religion. It is thought that it can be said that most research by constitutional scholars is related to superiority or inferiority of the various interpretations regarding the denotation of rights clearly stated as fundamental human rights in the Constitution. Just as it becomes necessary to discuss the denotation of freedom of expression anew with the advent of search engines or social media, the denotation of fundamental human rights is subject to change in response to changes in social situations including advances in technology. There will be no choice but to leave efforts to determine this changing denotation to judicial precedents and theories. Although circumstances where gender identity can be diverse are not unique to Japan, it is also thought that the approval by the German Federal Constitutional Court and the European Court of Human Rights as stated above of the right to have gender status under laws and regulations handled in accordance with one's gender identity as a fundamental human right, is based not on the position that approval as a fundamental human right is refused simply because the denotation cannot be completely clarified but on the position that the core part thereof is recognized as a fundamental human right with the work of further clarifying the denotation being left to subsequent judicial precedents and theories.
Imagining a case where the gender of a person whose identified gender is consistent with the biological gender is erroneously entered in the person's family register as a gender different from the identified gender, the correction of the family register not being permitted, and the person having to accept a Legal Gender that is different from the person's identified gender for life, it is thought that most people would consent to the fact that an interest in having gender status under laws and regulations handled in accordance with one's gender identity is essential to existence with personality respected. Furthermore, while the cumulative total number of cases where a Ruling of Change in Recognition of Gender Status is rendered is more than 10,000, it does not seem that social confusion has occurred due to that. Family registers in which the changes in Legal Gender are entered under the Act on Special Cases are not open to the public in general, and usually, the gender of the relevant person is changed to the Legal Gender consistent with that person's appearance or given name, which has already been changed. Thus, it is difficult to consider that a violation of any other person's rights is occurring in response to a change in the Legal Gender of a person with gender identity disorder. Therefore, it can be thought that an interest of a person with gender identity disorder in having the gender status under laws and regulations handled in accordance with the person's gender identity is guaranteed pursuant to Article 13 of the Constitution.
4. If there are special circumstances, such as a person having permanently lost reproductive function due to the administration of anticancer drugs or other reasons, then the person may meet the requirements under the Provision of the loss of fertility without undergoing gonadectomy surgery. With respect to the Item (v) Provision, the requirements thereunder may be met without surgery through hormone therapy or other means. With respect to persons who have received a Ruling of Change in Recognition of Gender Status from female to male, some research results show that there are many such cases. While under the Item (v) Provision, however, surgery is usually required in the case of a person requesting a Ruling of Change in Recognition of Gender Status from male to female, that surgery involves a large degree of bodily invasion and possible risks to the life or body. Even if surgery is not necessary to meet the requirements under the Item (v) Provision, hormone therapy given to meet those requirements also involves the risk of serious side effects occurring. Therefore, it can be said that the Item (v) Provision also forces the relevant person to choose between two harsh options: the right to have gender status under laws and regulations handled in accordance with the person's gender identity and the Freedom from Having the Body Invaded, which is no different from the Provision. On the other hand, while problems that may occur in society if the Item (v) Provision were to be repealed should be carefully considered from the beginning, as indicated in the respective dissenting opinions of Justice MIURA and Justice KUSANO, it is thought that it cannot be said that those problems are enough to justify forcing the harsh choice explained above. Therefore, I agree with the respective dissenting opinions of Justice MIURA and Justice KUSANO with respect to the Item (v) Provision being unconstitutional in the same manner as the Provision.
It is obvious that the appellant meets the requirements under the Act on Special Cases other than those in the Provision and the Item (v) Provision. Accordingly, I consider that the order in prior instance should be quashed and the own judgment to accept the petition in this case should be rendered.

Justice TOKURA Saburo
Justice YAMAGUCHI Atsushi
Justice MIYAMA Takuya
Justice MIURA Mamoru
Justice KUSANO Koichi
Justice UGA Katsuya
Justice HAYASHI Michiharu
Justice OKAMURA Kazumi
Justice NAGAMINE Yasumasa
Justice YASUNAMI Ryosuke
Justice WATANABE Eriko
Justice OKA Masaaki
Justice SAKAI Toru
Justice IMASAKI Yukihiko
Justice OJIMA Akira