Japan Institute for National Fundamentals

　
On October 25, the Japanese Supreme Court denied the constitutionality of a law that requires reproductive glands (testes or ovaries as internal genitalia) to be defunctionalized for gender change.

“Forcing people with gender dysphoria to choose between accepting the severe physical invasion of reproductive gland removal surgery or giving up the important legal interest of being treated as a legal gender according to their gender identity” runs counter to the constitution’s Article 13 (respect for individuals), said the ruling that was made unanimously by all the 15 top court justices. At a time when public debate on the matter has not yet boiled down, this is a very hasty conclusion.

What is particularly puzzling is that no Supreme Court justice has questioned the very basic position of the law --- the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder --- that allows legal gender to be changed.

Gender is determined at birth

For instance, the U.S. Supreme Court, where conservatives now make up the majority of the justices, has maintained a “judicial restraint” approach of monitoring the trends at the Congress and state legislatures and has not made any judgement regarding gender changes or the use of restrooms and changerooms, except a ruling that employment discrimination against sexual minorities is not allowed.

Meanwhile, in Florida, a state with strong conservative influence, a state law has codified the position that legal gender is determined by biological characteristics at birth and cannot be changed for life. This is because if legal gender can be changed by surgery, it may induce an obsession in people who feel gender dysphoria that they will be seen as fake transgender if they do not undergo surgery, and may prompt them to make irreversible (and, afterwards, potentially regrettable) decisions. It may be added that Florida prohibits sex reassignment surgery and the administration of opposite-sex hormones for adolescents aged 18 or less.

A person can freely claim to be transgender and others can freely treat him or her as such. But, if he or she is not allowed to change legal gender regardless of whether he or she undergoes sex reassignment surgery or not, there may be no legal factors to hasten surgery.

Abolishing the Special Cases Act makes sense

If a law is enacted to allow legal gender changes on condition that internal or external genitalia are removed or altered, as in Japan, it may trigger a wave of lawsuits claiming that forcing people to accept physical invasion is harsh and violates human rights.

A Supreme Court justice argued in his individual opinion at the latest court decision that not only surgery but also the administration of opposite-sex hormones could cause serious health hazards and should not be a requirement for gender change. In light of the circumstances in which the minority opinion given four years ago turned into a majority opinion this time, it is quite possible that this opinion may prevail in the Supreme Court in the future. In that case, a person could have a constitutional right to become a woman while retaining a man’s body.

Some transgender people who were assigned male at birth experience sexual arousal from cross-dressing, but treat women as their sex objects. Women’s uneasiness about these people’s use of women-only spaces may not be judged as prejudice.

A common-sense solution might be abolishing the Gender Identity Disorder Special Cases Act, making it impossible to change one’s legal gender, and then, taking measures such as prohibiting employment discrimination.

Yoichi Shimada is a councilor and Planning Committee member, Japan Institute for National Fundamentals, and a professor emeritus at Fukui Prefectural University.