By SHUNSUKE ABE/ Staff Writer
December 2, 2021 at 15:30 JST
The Supreme Court in Tokyo (Asahi Shimbun file photo)
The Supreme Court has rejected a plaintiff's appeal seeking to legally change her gender status after getting sex reassignment surgery, denying her the possibility because she is raising a child.
The court upheld the legal requirement that states those with gender dysphoria seeking to change their gender status must not be raising a minor.
A 54-year-old company employee living in Hyogo Prefecture had asked the Amagasaki branch of the Kobe Family Court in 2019 to allow her gender to be legally changed from a man to a woman to match her new identity after having a sex reassignment operation.
But both the family court and Osaka High Court ruled against the company employee, who then appealed to the Supreme Court.
At issue was one of the five restrictions set out in the law for handling the gender status of those with gender dysphoria. A 2008 revision to the law relaxed the condition of not having any children at all to not raising a minor.
From her youth, the plaintiff never felt comfortable as a male. While the plaintiff had eventually married a woman introduced by the plaintiff’s parents, and the two had a daughter, the couple divorced shortly thereafter.
The company employee's daughter is now 10.
The lower courts said the restriction is rational because it intends to prevent confusion among children and within the family order.
The plaintiff argued the condition violated the constitutional guarantees of equality and the right to the pursuit of happiness.
Four of the justices on the Third Petty Bench found nothing wrong with the legal condition and rejected the plaintiff’s appeal.
But Justice Katsuya Uga wrote a dissenting opinion calling the condition unconstitutional.
He said the idea that a minor would necessarily become confused is a subjective argument and pointed out that heavy restrictions like this are seldom seen in other nations.
Uga also pointed out that the child’s welfare would be hurt if problems arose at work or elsewhere because the person’s gender status listing on the local government’s family register did not match the physical appearance of the individual. He said the condition violated Article 13 of the Constitution, which guarantees the right to self-identity.
Shun Nakaoka, the lawyer for the plaintiff, said the Supreme Court failed to address the suffering of those unable to legally change their gender status in the family register even after changing their physical and psychological self.
But Nakaoka added, “It was a major step forward to have one justice show deep understanding” of the issue.
According to legal statistics, about 10,000 people have been permitted to change their gender status since the law was enacted in 2004.
The five conditions listed in the law that allow a person to have their gender status legally changed have increasingly come under scrutiny over that time frame.
In 2019, a Supreme Court petty bench ruled that the condition requiring forced sterilization is constitutional, but two justices dissented and said there were doubts about its constitutionality.
The three other conditions are that the individual must be 20 or older; must be single; and must have a physical appearance close to the gender to which they are seeking to change.
Shuhei Ninomiya, a law professor at Ritsumeikan University who is an expert in family law, said the condition of not having any children is unreasonable.
“Many children have said they wanted their parent to live in a manner most suited to them,” Ninomiya said. “The distortions in the system are clear, so the Diet should revise the law to match reality.”
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