2023.07.11

2021 (Gyo-Hi) 285

Minshu Vol. 77, No. 5

(Civil Case)Judgment concerning a case in which the National Personnel Authority's determination that a request for administrative action under Article 86 of the National Public Service Act concerning the use of women's restrooms in the workplace made by a national public employee in regular service, whose biological sex is male and who has been diagnosed by a doctor as having gender identity disorder was not granted is found to be illegal in that it exceeds the scope of discretionary power or is an abuse of such discretionary power.

Case of request for revocation of determination of request for administrative action and of claiming state redress

Judgment of the Third Petty Bench, partially quashed and decided by the Supreme Court, partially dismissed with prejudice on the merits

Tokyo High Court, Judgment of May 27, 2021

In cases where the treatment to the effect that a national public employee in regular service whose biological sex is male and who has been diagnosed by a doctor as having gender identity disorder would not be allowed to use the women's restrooms on the floor where such employee's office is located nor the floors directly above and below it in the government office building where such employee's office is located but would be allowed to use the women's restrooms on other floors has been implemented, under the circumstances described in the following paragraphs (1) through (4) and other circumstances, the determination by the National Personnel Authority that a request for administrative action under Article 86 of the National Public Service Act concerning the use of women's restrooms in the workplace made by the above person was not granted is found to be illegal in that it exceeds the scope of discretionary power or is an abuse of such discretionary power.
(1) Under the above treatment, the above person is forced to use a restroom for males that differ from the gender that the above person self-identifies as, or to use a women's restroom on a floor away from the floor where the above office is located.
(2) At a briefing held at the Ministry to which the above person belongs to explain the person's gender identity disorder to the employees working in the department where the person works, only a few female employees seemed to feel uncomfortable about the fact that the person uses the women's restrooms on the floor where the above office is located, and there was no indication that any employee clearly objected to the fact.
(3) The above person has been receiving female sex hormone therapy and other therapies and has also received a doctor's diagnosis that there is little possibility of sexual violence based on sexual impulses. After the above briefing, the above person began coming to work in women's clothing, etc. and using the women's restrooms on a floor at least two floors away from the floor on which the above office is located, and this has not caused any trouble.
(4) During the approximately four years and 10 months between the above briefing and the above determination, there is no indication that another investigation was conducted to determine whether there were other employees who should be given special consideration regarding the use of the women's restrooms in the above government building by the above person nor that a review of the above treatment was considered.
(There are concurring opinions.)

Article 71, paragraph (1), Article 86, and Article 87 of the National Public Service Act

1. The portion of the judgment in the prior instance that relates to the request for revocation of the portion of the determination made by the National Personnel Authority pertaining to the use of the restrooms is quashed, and the appellee's appeal to the court of second instance is dismissed with respect to that portion of the judgment.
2. The other appeals of the appellant are dismissed.
3. All court costs shall be divided into 10 portions, one of which shall be borne by the appellee with the other portions borne by the appellant.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, YAMASHITA Toshimasa and other (except for the portions excluded)
1. In this case, the appellant is a national public employee in regular service who has been diagnosed by a doctor as having gender identity disorder, and made a request in accordance with the provisions of Article 86 of the National Public Service Act to the National Personnel Authority for administrative action concerning the use, etc. of the restrooms at the appellant's workplace, and received a determination that none of the requests were granted (hereinafter referred to as the "Determination") and is therefore seeking revocation of the Determination, etc. against the appellee.
2. The outline of facts lawfully determined by the court of prior instance is as follows:
(1) Article 86 of the National Public Service Act provides that officials may make requests to the National Personnel Authority that appropriate administrative action be accorded by the National Personnel Authority, the Prime Minister, or the head of the government agency appointing that official, relative to salary, compensation, or any other working conditions, and Article 87 of the same Act provides that when such a request as above is received, the National Personnel Authority must conduct investigations, hearings, or other fact-finding reviews as it finds necessary, and reach a determination on the case with due regard to impartiality to the general public and the persons concerned and in terms of developing and improving the efficiency of officials.
(2) a. The appellant (born in ▲▲) was hired as a (omitted) in April, ▲, and has been working in the same department of the Ministry of Economy, Trade and Industry since May 2004.
There are three separate men's and women's restrooms on each floor of the government building (hereinafter referred to as the "Building") where the offices of the above departments are located. The multipurpose restrooms for unisex use are not located on the floor where the above office is located (hereinafter referred to as the "Office Floor") but (omitted) are located on several other floors.
b. Although the appellant's biological sex is male, the appellant has felt a strong sense of discomfort with this since childhood. The appellant began receiving female sex hormones around 1998 and was diagnosed by a doctor as having gender identity disorder around 1999. Then, by about 2006, the appellant began to undergo (omitted) and began to lead the appellant's private life as a woman in about 2008.
By around March 2010, the appellant had also been diagnosed by a doctor who stated that the amount of male hormones in the blood of the appellant was well below the lower limit of the norm for men of the appellant's age and that there was little possibility of sexual violence based on sexual impulses. Incidentally, the appellant has not undergone gender-affirming surgery due to health reasons.
(3) a. In July 2009, the appellant informed the appellant's supervisor of the appellant's gender identity disorder, and in October of the same year, the appellant informed the official of the Ministry of Economy, Trade and Industry in charge of the issue of the appellant's request to wear women's clothing and to use the women's restrooms, etc. In response to the above, on July 14, 2010, a briefing was held at the Ministry of Economy, Trade and Industry, with the appellant's consent, to explain the appellant's gender identity disorder to the employees working in the department to which the appellant belongs (hereinafter referred to as the "Briefing"). When the official in charge of the issue asked the participants at the Briefing to comment on the appellant's use of the women's restrooms in the Building after the appellant had left the room, several female employees, based on their demeanor, appeared to be uncomfortable about the appellant's use of the women's restrooms on the Office Floor. When the official in charge of the issue asked for opinions on the appellant's use of the women's restrooms on the floor one floor above the Office Floor, one female employee stated that she also used those women's restrooms on a daily basis.
b. Based on the discussions at the Briefing, the Ministry of Economy, Trade and Industry decided to implement the treatment to the effect that the appellant would not be allowed to use the women's restrooms on the Office Floor nor the floors directly above and below it in the Building but would be allowed to use the women's restrooms on other floors (the "Treatment").
The week after the Briefing, the appellant began coming to work in women's clothing, etc., and mainly using the women's restrooms on a floor two floors away from the Office Floor, and this did not cause any problems among other employees.
In ▲ 2011, the appellant changed the appellant's name to the current one with the permission of the family court and began using that name in the workplace in June of that year.
(4) As of December 27, 2013, the appellant made a request for administrative action pursuant to Article 86 of the National Public Service Act, to the effect that the appellant should be treated in the same manner as the other female employees in principle, including allowing the appellant to freely use the women's restrooms in the workplace. As of May 29, 2015, the National Personnel Authority issued a determination (Determination) to the effect that none of the requests were granted. (the portion of the Determination that relates to the above request for use of the restrooms is hereinafter referred to as the "Portion of the Determination")
3. Based on the facts mentioned above, the court of prior instance determined as summarized below and dismissed the request for revocation of the Portion of the Determination.
The Treatment implemented and continued by the Ministry of Economy, Trade and Industry should be said to be a response to fulfill its responsibility to create an appropriate work environment for all employees, including the appellant, and therefore, the Portion of the Determination cannot be considered to be exceeding the scope of discretionary power or an abuse of such discretionary power, and it cannot be considered illegal.
4. However, the aforementioned determination of the court of prior instance cannot be upheld. The reasons therefor are as follows:
(1) In a determination by the National Personnel Authority in response to a request for administrative action pursuant to the provisions of Article 86 of the National Public Service Act, the wide range of service conditions of employees is required to be professionally judged in line with the personnel administration and the actual conditions of service of employees with due regard to impartiality to the general public and the persons concerned and in terms of developing and improving the efficiency of officials (Articles 71 and 87 of the said Act), and it is understood that the above judgment shall be left to the discretion of the National Personnel Authority. Therefore, it is reasonable to conclude that the above determination is illegal if it is found to exceed the scope of discretionary power or to be an abuse of such discretionary power.
(2) Applying the above to this case, it can be said that the Treatment was an attempt by the Ministry of Economy, Trade and Industry to adjust the use of the restrooms in the Building from the viewpoint of ensuring an appropriate work environment for the employees, including the appellant.
Since the appellant has been diagnosed by a doctor as having gender identity disorder and yet is being forced under the Treatment to use the restrooms for males which differ from the self-identified gender of the appellant, or the women's restrooms located on a floor away from the Office Floor, it can be said that the appellant is suffering a considerable disadvantage on a daily basis.
While the appellant, on the other hand, has not undergone gender-affirming surgery due to health reasons, the appellant has been receiving female sex hormones and (omitted) and has also received a doctor's diagnosis that there is little possibility of sexual violence based on sexual impulses. In fact, after the Briefing, the appellant began coming to work in women's clothing, etc., and using the women's restrooms on a floor two or more floors away from the Office Floor, and this has not caused any problems. At the Briefing, only a few female employees seemed to feel uncomfortable about the appellant using the women's restrooms on the Office Floor, and there was no indication that any employee clearly objected to such use by the appellant. Furthermore, during the approximately four years and 10 months between the Briefing and the Determination, there was no indication that another investigation was conducted to determine whether there were other employees who should be given special consideration regarding the use of the women's restrooms in the Building by the appellant nor that a review of the Treatment was considered.
According to the above, even up until the time of the Determination, it could not have been easily assumed that there would be any problems with the appellant's free use of the women's restrooms in the Building, and the existence of other employees who should have been given special consideration had not been known, so it should be considered that no specific circumstances were found that would require the appellant to suffer the above disadvantages that resulted from the Treatment. Taking this into consideration, the judgment of the Portion of the Determination made by the National Personnel Authority, which placed undue emphasis on consideration for other employees without taking into account the specific circumstances of this case, unfairly disregarded the disadvantage of the appellant, and was not judgment with due regard to impartiality to the persons concerned and in terms of developing and improving the efficiency of officials including the appellant, must be said to be significantly inappropriate.
(3) Therefore, the Portion of the Determination should be illegal in that it exceeds the scope of discretionary power or is an abuse of such discretionary power.
5. The determination by the court of prior instance that differs from the above contains a violation of law or regulation that has clearly influenced the judgment. The counsel's arguments are well-grounded, and the part related to the request for revocation of the Portion of Determination in the judgment in the prior instance should inevitably be quashed. On the grounds explained above, the above request is grounded. Therefore, the judgment in the first instance that upheld the above request is justifiable, and with respect to the aforementioned part, the appeal to the court of second instance filed by the appellee should be dismissed.
The remainder of the final appeal filed by the appellant is dismissed with prejudice on the merits since its reasons for a petition for acceptance of the final appeal have been excluded in the ruling to accept the final appeal.
Accordingly, the Court unanimously decides as set forth in the main text of the judgment. There are concurring opinions by Justice UGA Katsuya, Justice NAGAMINE Yasumasa, Justice WATANABE Eriko, Justice HAYASHI Michiharu, and Justice IMASAKI Yukihiko.
The concurring opinion of Justice UGA Katsuya is as follows:
1. The reasons that judgment differed between the first instance and the prior instance in this case seem to be:
(1) the fact that although the appellant seems most likely to be recognized as a woman due to the administration of female sex hormones and (omitted) and is a transgender woman (male-to-female, or MtF) whose name has been changed to one commonly used for women, the appellant is still male according to the appellant's family register, and the difference in recognition of the extent to which the interest of such a transgender person living in society based on his or her gender identity should be an important legal interest; and
(2) the difference in perception of how much importance is placed on the sense of discomfort and embarrassment about using the same women's restrooms as the appellant felt by a female fellow employee who knows that the appellant is a transgender person with such a condition.
2. In examining this case, how to evaluate the fact that the appellant is still male according to the appellant's family register becomes an issue. In this case, it appears that the Ministry of Economy, Trade and Industry had a policy that if the appellant were to become a woman in the family register as well, the appellant would be treated in the same manner as other female employees in terms of using the restrooms, but under the current Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder, in order to change the gender in the family register, the appellant would have to undergo gender-affirming surgery. It is well known that there are arguments about the constitutionality of these provisions, but putting that point aside, gender-affirming surgery inevitably causes physical injuries and strains, involves risks to life and health, is financially burdensome, and is impossible for some people to undergo because of their physical constitution or other reasons. Therefore, it should be considered that even in cases where a person has not undergone such surgery, the response should respect the person's gender identity as much as possible. In this case, the appellant had health reasons that prevented the appellant from undergoing gender-affirming surgery for the time being, and even though the appellant had not undergone gender-affirming surgery and was still male according to the family register, it can be said that the Ministry of Economy, Trade and Industry was required to respect the appellant's interest in leading a social life based on the gender identity of the appellant to the extent possible.
3. The Ministry of Economy, Trade and Industry is obligated to maintain a work environment in which officials can fully develop and improve their efficiency (Article 71, paragraph (1) of the National Public Service Act), and with regard to restrooms in the Building, it is necessary to consider the appellant's interest in leading a social life based on the gender identity of the appellant, as well as the feelings of the appellant's fellow employees. When examining whether the Ministry of Economy, Trade and Industry's response in this case, which focused on the discomfort and embarrassment of female employees about using the same women's restrooms as the appellant, could be justifiable as a restriction on the appellant's interest in leading a social life based on the gender identity of the appellant, as the opinion of this court points out, no concrete risk was found of a problem being caused by the appellant's use of the women's restrooms.
Furthermore, as of May 29, 2015, when the Determination was made, four years and 10 months or more had passed since the appellant began coming to work in women's clothing, and approximately four years had passed since June 2011, when the appellant changed the appellant's name to that of a woman and began using that name in the workplace. Therefore, at the time of the Determination, even if there was a possibility that a female employee, who recognized that the appellant was a transgender woman and still male according to the family register of the appellant, might use the women's restrooms on the Office Floor or on a floor directly above or below it, the disruption caused by this should not be considered important and would not justify restricting the appellant's interest in using the restrooms according to the appellant's own gender identity on the same terms as other female employees.
Moreover, the discomfort and embarrassment that the female fellow employees who recognize the appellant as male according to the appellant's family register may feel when using the same women's restroom as the appellant could be dispelled to a considerable extent through training because it is believed that this is likely to be due to an insufficient understanding of transgender people. Since the appellant came out as a transgender woman and requested to be allowed to use the women's restrooms in October 2009, although it was unavoidable to set certain restrictions on the appellant's use of the women's restrooms as a temporary measure after the Briefing, the Ministry of Economy, Trade and Industry could have conducted training at an earlier stage to promote the understanding of transgender people and reviewed such restrictions. However, the Ministry of Economy, Trade and Industry did not take such measures and has only repeatedly urged the appellant to undergo gender-affirming surgery for approximately five years. In this regard, it does not appear that sufficient efforts have been made to improve the work environment to realize a society of harmonious coexistence in which diversity is respected.
4. In conclusion, under the facts of this case, the Portion of the Determination, as exercised under the National Personnel Authority's discretionary power, overvalues the discomfort, embarrassment, etc. that may be felt by female employees who recognize that the appellant is a transgender woman and still male according to the family register of the appellant, undervalues the interest of the appellant to use the restrooms according to the gender identity of the appellant under the same conditions as other female employees, and should inevitably be revoked for exceeding of discretionary power and being illegal.
The concurring opinion of Justice NAGAMINE Yasumasa is as follows:
I agree with the court opinion but would like to further lay out the following points:
It is recognized that the Ministry of Economy, Trade and Industry introduced the Treatment in an attempt to adjust the interests of the employees since it appeared to the official in charge of the issue that several female employees were uncomfortable based on their demeanor at the Briefing. However, in terms of restrictions on the use of restrooms, the appellant was the only one who suffered a disadvantage, and therefore, it must be concluded that the Treatment was not balanced in terms of how adjustments should be made. However, since the appellant began coming to work in women's clothing, etc. the week after the Briefing, the Treatment can be regarded as a measure to moderate any changes and avoid confusion due to the sudden change in circumstances, so to speak, and taking into consideration the fact that the appellant did not object, it is possible to consider that, as of July 2010, the Treatment was reasonable to a certain extent.
However, given that the appellant had been consistently leading a life as a woman in the workplace for more than four years up to the time of the Determination, even though it appeared to the official in charge of the issue that the female employees had any discomfort at the Briefing, the Ministry of Economy, Trade and Industry should be considered to have had a responsibility to investigate whether any discomfort had been resolved, and to examine whether maintaining the Treatment, which had imposed unilateral restrictions on the appellant, could be justified and to review the Treatment as necessary. Moreover, there was no problem concerning the use of the restrooms by the appellant during this period. In light of the above background and considering that it is an important interest for everyone, and a crucial interest especially for transgender people, to lead a social life in conformity with their self-identified gender and that such an interest should be legally protected, I believe that the Portion of the Determination in which the National Personnel Authority denied the appellant's request to use the restrooms was, as the court opinion states, significantly inappropriate.
The concurring opinion of Justice WATANABE Eriko is as follows:
I agree with the court opinion in both its main text and reasons but would like to offer a concurring opinion regarding the consideration of the use of the restrooms in the Building by the appellant, who is a transgender woman.
Although I do not deny that the Ministry of Economy, Trade and Industry has a certain discretion based on its authority to manage facilities, etc., as the judgment in the prior instance shows, I believe that gender, as an attribute of individuals in social life and interpersonal relationships, is closely and inseparably related to the existence of an individual with personality respected and that the ability of individuals to lead social lives in accordance with their truly self-identified gender should be fully respected as an important legal interest in the judgment by the said Ministry.
However, it is needless to say that even important legal interests should be subject to reasonable restrictions when they conflict with other interests, and consideration should also be given to employees who use restrooms for men and women on the premise of biological sex distinctions. Therefore, in this case, it cannot be denied that when the interests of the appellant, who is transgender, and the interests of the female employees (cisgender) who use the restrooms in the Building conflict, it is necessary to balance and adjust the interests between the two.
However, while the interests of the female employees cannot be disregarded, the use of the women's restrooms in the Building by the appellant is an important legal interest that should be indispensable for the appellant to live as a human being, and under the current circumstances where misunderstanding and prejudice against sexual minorities still cannot be dispelled, it should be considered that it is not allowed to make an intuitive and abstract balancing and adjustment of interests between them, but objective and concrete balancing and adjustment of interests are necessary. In this case, although the appellant had not undergone gender-affirming surgery, the appellant began coming to work in women's clothing, etc. the week after the Briefing, and it could be considered that the appellant seemed most likely to be recognized as a woman in terms of the appellant's behavior, manner, and appearance etc. in the appellant's social life. With respect to the appellant's use of the women's restrooms, it is necessary to first seriously consider what interests of the female employees should be protected (the interests of the female employees that would be lost due to the appellant's use), as indicated in the court opinion and the judgment in the first instance, and it should be considered concretely and objectively whether those interests are, in fact, being infringed or whether there might have been a risk of infringement thereof.
In this case, the Ministry of Economy, Trade and Industry decided to implement the Treatment which banned the appellant from using the women's restrooms not only on the floor of the department where the appellant works but also on the floors directly above and below it, totaling three floors, because the female employees "seemed" to have discomfort with the appellant's use of the women's restrooms. Even after that, the Ministry of Economy, Trade and Industry maintained the Treatment for approximately four years and 10 months without reviewing it on the grounds that the appellant had not undergone gender-affirming surgery and was listed as a male in the appellant's family register, and it is clear that such a response by the Ministry is not reasonable and should be considered inequitable in that it imposes unilateral restrictions only on the appellant. In particular, it has been pointed out that, in general, even if people initially feel uncomfortable with transgender people using the restrooms of the gender they self-identify as, as they become more aware and increase their understanding of the circumstances of transgender people, their sense of unease may be alleviated or reduced over time. (The record of this case also suggests that there were female employees who felt this way.) In addition, it has also been pointed out that it is important to implement the processes necessary to seek understanding of respect for the legal interests of transgender people in order to resolve concerns based on misunderstandings. From this point of view, even if the Ministry of Economy, Trade and Industry had taken the temporary measure of banning the use of the women's restrooms only on the floor of the department where the appellant works (or even though banning the use of the women's restrooms on the floors directly above and below as well, although the necessity of such a measure is questionable) as a measure to moderate any changes for taking care of the initial confusion of the female employees, the Ministry of Economy, Trade and Industry, as facility manager, etc., could possibly have and should have made efforts, without being overinsistent on the implementation of gender-affirming surgery, could possibly have, and should have, made efforts to gain the understanding of the female employees and gradually reduced or lifted the ban.
Moreover, even with the facts found in the prior instance, it is not clear why the female employees did not express their objections at the Briefing. Even though it is natural for some female employees to feel awkward upon learning that the appellant wanted to use the women's restroom because they were aware that the appellant was a man, there could be multiple reasons why the female employees did not express their objections at the Briefing. In other words, it is possible that the female employees did not object in recognition that the appellant should be allowed to use the restrooms of the appellant's self-identified gender. (The record of this case also suggests that there were female employees who felt this way.) Although it is not impossible to say that the female employees may have been discouraged from expressing their objections in front of a large number of people, it is also quite possible that they felt awkward but thought it was unavoidable in consideration of the appellant's position or that it would not be appropriate to object. (The record of this case also suggests that there were female employees who felt this way.)
If the judgment in the prior instance had found the Treatment and the Portion of the Determination reasonable on the basis of intuitive and abstract concerns about "sexual interests such as sexual shame and sexual anxiety" without considering the possibility of such diverse reactions by the female employees, I fear that it may have led to an overlooking of the existence of the diversity of women's ways of thinking.
As stated above, with regard to the balancing and adjustment of interests regarding the use of restrooms, it is certainly essential to take into consideration that distinctions have been made in society over the years between men and women based on biological sex and to consider those employees who have always used restrooms on the basis of such distinctions. In addition, the balancing and adjustment of interests regarding the use of restrooms may vary depending on the circumstances of the facility and other factors, such as the individual circumstances of sexual minority employees and the need to consider, for example, the safe use of restrooms, such as how to exclude suspicious persons when restrooms in the workplace are available to outside persons. Therefore, it is difficult to uniformly determine proper handling, and it will certainly be necessary to make decisions on a case-by-case basis.
In any case, however, I strongly hope that the facility manager, etc. will not assume that female employees are uniformly sexually anxious and therefore oppose the use of women's restrooms by transgender women, but rather, for the purpose of seeking the coexistence of cisgender and transgender people as much as possible, will implement the processes for that purpose through education and other measures in the direction of ensuring that their employees also understand about respect for the legal interests of sexual minorities.
Justice HAYASHI Michiharu concurs with the concurring opinion of Justice WATANABE Eriko.
The concurring opinion of Justice IMASAKI Yukihiko is as follows:
It is a natural and sincere desire for transgender people to seek treatment appropriate to their self-identified gender in various aspects of social life, and how to achieve this is an issue that our entire society must now discuss. Although the use of restrooms is only one example, the need to address these issues is clear if we imagine, for example, the emotional distress felt by any transgender woman who is forced to use a men's restroom against her will.
At the Briefing, the appellant announced to the female employees that the appellant was transgender, but no objections were expressed overtly by the female employees during the subsequent hearing of their opinions. After that, the appellant used the women's restrooms on the floor that the appellant was allowed to use in accordance with the Treatment for approximately four years and 10 months up to the time of the Determination (approximately three years and eight months if the period of leave is excluded), and no problems arose during that time. In addition, according to the facts found in the prior instance, prior to the Briefing, the appellant had been receiving female sex hormones on an ongoing basis since about 1998 and has been spending all of her personal time as a woman since about 2008, and no problems have ever arisen as a result thereof.
Although the court opinion directly focuses on the pertinence of the Portion of the Determination by the National Personnel Authority in response to the appellant's request for administrative action, it is needless to say that, in substance, the core of the opinion was an evaluation of the series of measures taken by the Ministry of Economy, Trade and Industry against the appellant. The lesson that can be learned from this perspective is the attitude that should be adopted by facility managers, human resources personnel, and others in workplaces faced with these types of issues, that is, it is highlighted that they are responsible to give full consideration to the position of transgender people and to make sincere efforts to make any necessary adjustments.
The challenge lies beyond that. For example, in a case such as this, it is hard to say that there is currently a social consensus that it should be unconditionally accepted to allow the free use of restrooms without an explanation (provision of information) to, or the understanding (acceptance) of, the other employees who use the same restroom. This is why, in order to gain the understanding and consent of the people concerned, briefing sessions like the one in this case are held and opportunities are provided for discussion. However, it is inevitable that negative opinions, resistance, and uneasiness may be expressed as a result, and even if all the effort to adjust is made sincerely, it is possibly that the people concerned may be not satisfied (although I hope this is a groundless fear). Regarding the provision of information, when it comes to specific issues, such as when, to which employees, how, and how much information should be provided (in particular, whether to disclose the fact that an individual is transgender can be a serious issue in some cases, and needless to say, it must not go against the individual's will), it will be required to weigh carefully the need to protect privacy and the need to provide information to the people concerned and a difficult decision may have to be made depending on the case.
Although there is a need for guidelines and standards for these various issues to be followed, there can be no standardized solution since circumstances will vary in terms of the organization and size of the workplace, structure of the facility, and other workplace conditions, as well as the type of work, number of staff involved and their interpersonal relationships, and the working situation of transgender personnel in such workplace. At this point, the only solution is to listen carefully to both the requests and intentions of the transgender person and the opinions and reactions of the other employees and then seek the best solution from the perspective of maintaining the workplace environment, safety management, and so on. It is expected that cases of this type will occur in various aspects of society in the future and that the number of workplace and facility managers, human resource personnel, and executives who will struggle with this type of situation will increase. It seems that there have already been some examples in the private sector, and I hope that standard treatments, guidelines, and standards will take shape in the future through the further accumulation of cases. In addition, it is desirable that this type of issue be discussed throughout society and a consensus be formed because a reasonable solution cannot be reached without the understanding of a large number of people.
Incidentally, this judgment does not address how public facilities, including restrooms, that are intended for use by unspecified or many persons should be used. This issue should be discussed on another occasion.

Justice IMASAKI Yukihiko
Justice UGA Katsuya
Justice HAYASHI Michiharu
Justice NAGAMINE Yasumasa
Justice WATANABE Eriko