Japan's top court deems sterilisation requirement for sex-affirming surgery unconstitutional

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Japan's Supreme Court issued a landmark verdict on Wednesday, declaring a law that mandates sterilization surgery for transgender individuals to officially change their gender as unconstitutional. The ruling, which applies solely to the sterilization component of the 2003 law, marks a significant step in the recognition of LGBTQ+ rights and has been welcomed by advocates, according to the Associated Press.

According to the report, the law in question compels individuals seeking to change their gender to make a "cruel choice" between undergoing sterilization surgery, which causes intense physical intrusion, and forgoing significant legal benefits associated with their gender identity, as stated by the Supreme Court. Notably, this decision does not address the constitutionality of the broader requirement for gender-transition surgery to obtain an officially sanctioned gender change, a condition that has also faced criticism from international rights and medical organizations.

As a result of this ruling, the government is required to reevaluate the law, marking a crucial initial step towards allowing transgender individuals to change their gender on official documents without the necessity of sterilization. However, the claimant's case has been sent back to the high court to further examine the requirement for gender-affirmation surgery, indicating that the victory is only partial, the report further stated.

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The claimant, a transgender woman in her late 40s residing in western Japan, had initially requested a gender change on her family registry from male to female, but her appeal was denied by lower courts in 2020.

This ruling comes at a time when Japan is experiencing heightened awareness of LGBTQ+ issues and is considered a significant triumph for the LGBTQ+ community. The judges unanimously found the portion of the law mandating sterilization for gender change to be unconstitutional. Nonetheless, the decision that did not challenge the constitutionality of the gender-affirmation surgery requirement has been viewed as regrettable, as it postpones the resolution of this issue, the report further stated.

The claimant's lawyer, Kazuyuki Minami, conveyed the claimant's reaction to the ruling, stating that she was "surprised" by the decision and "disappointed" that a judgment on the gender-affirmation surgery requirement had been delayed. Minami highlighted that this delay results in further personal distress for the claimant, including invasive examinations.

According to the law, transgender individuals who wish to change their gender on family registries and official documents must be diagnosed with gender dysphoria and undergo surgery to remove their sex organs. Other requirements include being unmarried and not having children under 18.

Kanae Doi, the Japan director of Human Rights Watch, welcomed the unanimous decision by the top court, emphasizing that the government must now take measures to amend the law to eliminate the sterilization and gender-affirmation surgery prerequisites. She argued that any involuntary bodily intrusion constitutes a violation of human rights, the report cited.

While LGBTQ+ activists in Japan have been advocating for an anti-discrimination law, change has been gradual. Japan remains the sole member of the Group of Seven (G7) that does not permit same-sex marriage or provide legal safeguards, including an effective anti-discrimination law.

The claimant's original request in 2020 argued that the surgery requirement imposed a substantial economic and physical burden and violated the constitutional principle of equal rights.

This development followed a recent decision by a local family court, which, in an unprecedented ruling, accepted a claimant's request for a gender change without mandatory surgery, citing the requirement as unconstitutional.

In comparison to Japan, over 50 European and Central Asian countries allow individuals to change their gender on official documents without mandating the removal of sex organs through surgery. The practice of gender change in this manner has become mainstream worldwide, the report added.

In Japan, where traditional family values and a conservative government prevail, some LGBTQ+ individuals still hide their sexuality out of fear of discrimination at work and in schools. While some groups oppose greater inclusivity for transgender individuals, many municipalities issue partnership certificates to same-sex couples to alleviate challenges in areas such as renting apartments; however, these certificates are not legally binding.

In a 2019 case, the Supreme Court ruled that the law was constitutional, as it was designed to reduce confusion within families and society. However, the court acknowledged that it restricts individual freedoms and could fall out of step with evolving social values, indicating that the law should be subject to future review.