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Japan top court rules gender alteration ban for parent of underage child constitutional

Lawyer Shun Nakaoka, left, is seen during a news conference in Osaka, on Dec. 2, 2021. (Mainichi/Yumi Shibamura)

OSAKA -- The Japanese Supreme Court has ruled for the first time that a gender identity disorder-related law stipulating that an individual who has an underage child can't legally change their gender is constitutional.

    The Nov. 30 ruling was a split decision, with one of the five justices concluding that the stipulation was unconstitutional. Attorneys representing the petitioner said during a Dec. 2 news conference in Osaka following the ruling that though the ruling itself was wrong, the dissenting opinion was "groundbreaking" and "a ray of light."

    A transgender woman, 54, from Hyogo Prefecture petitioned the Supreme Court, arguing that the law's requirement went against Article 13 of the Constitution, which states, "All of the people shall be respected as individuals."

    The applicant was born a man, but had struggled from a young age to live as one. She now lives and works as a woman. She had married a woman and had a daughter, who is now 10, before the couple divorced. After undergoing gender reassignment surgery in 2019, she filed for a domestic affairs hearing at the Kobe Family Court's Amagasaki branch to legally change her gender, but was declined.

    The gender identity disorder-related law came into effect in 2004, and initially stipulated that gender alteration would not be permitted for individuals who had children, regardless of their age. The Supreme Court in 2007 ruled the stipulation constitutional. In a 2008 revision to the law, the requirements were relaxed for individuals without underage children. The latest ruling said the law "clearly does not violate the Constitution according to the legal precedent in 2007."

    Meanwhile, Justice Katsuya Uga, who presented a dissenting view, explained the process behind the stipulation, saying that it reflected the voices calling gender alteration "problematic from the viewpoint of child welfare," which argued that such a procedure for an individual with children would cause confusion to the family order and anxiety for their children. He went on to point out that the revised law which came into effect in 2008 acknowledges gender alteration for individuals with adult children, meaning that the argument that such a move would "cause confusion to the family order" has become weak.

    Uga also argued that the claim that gender alteration would cause anxiety for children is associated with the change in appearance, not the change of the legal sex of a parent. He criticized that claiming that the legal change, which presupposes appearance changes due to gender reassignment surgery, would cause anxiety is nothing but "vague, abstract concerns." He said even if the child experiences discrimination at school and elsewhere, efforts should be made rather to correct the prejudice within those who discriminate.

    Lawyer Shun Nakaoka, who appeared at the news conference, said Justice Uga's opposing opinion "fits the reality faced by social minorities and is a step forward." She added that the attorneys will ask the court to present its view with a parent and child both seeking to legally change their gender.

    (Japanese original by Yumi Shibamura, Osaka City News Department)

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