Written By: Takashi Shirouzu

Posted on: March 22, 2024

In Japan, the issue of transgender rights is relatively new and there is limited discussion in legal cases and academia. As a crucial starting point, it is essential to note that Japan lacks a general body of human rights law, resulting in a lack of legal mechanisms to protect transgender individuals[1]. Consequently, navigating this issue feels akin to being in a maze where one is unsure of the perspective from which to approach it. However, as discussed in the following chapter, this area of law is gaining public recognition with recent notable cases in Japan revolving around transgender rights concerning gender change and washroom usage. The Supreme Court of Japan has ruled one of the conditions for sex registry change unconstitutional[2] and the refusal to allow a transgender woman to use washrooms on the same floor of the workplace illegal.[3] These judgments have drawn wide attention from both society and the academic community.

Concerning gender changes, Japan has the Family Registration Act[4] which requires the registration of “sex” alongside name and birthdate for all Japanese nationals at birth. Thus, in the Japanese legal context, gender change requires the altering of one’s registered “sex” in the family registry. The law governing transgender individuals’ gender changes, known as the Gender Identity Disorder Act (GID Act)[5] was enacted in 2003. However, disputes have arisen regarding the constitutionality of some of its requirements.

The absence of gender-neutral washrooms and the prevalence of gender-segregated toilets in Japan make this issue directly relevant to the daily lives of transgender individuals. Thus, through the lens of these decisions, this paper illustrates a segment of Japan’s legal landscape surrounding transgender individuals.

1. Restrictions on Sex Change

The GID Act was enacted in 2003 and implemented in 2004. As indicated by its name, the act employs the term “gender identity disorder.” This can be notably contrasted with the ongoing global trend of using “gender dysphoria” rather than “disorder” when referring to transgender individuals[6]. This enduring contrast could be indicative of a lag in Japanese law on the subject. Originally, the GID Act was established to allow legal change of the registered sex of individuals who had already undergone sex transition, aligning with the desires of the transgender community. However, it has since become a hindrance for those transgender individuals who do not wish to undergo sex transition. Now, two decades since its enactment, there is a pressing need for significant changes. The provisions outlining the requirements for sex changes are as follows:

Article 3(1): The Family Court may, upon the request of a person with gender identity disorder who meets the following conditions, make a judgment to change the treatment of their sex:

(i) be over the age of eighteen,

(ii) be unmarried,

(iii) have no minor children,

(iv) have no genital gland or be permanently lacking function of a genital gland, and

(v) have the body structure with the appearance resembling the sexual organs of the other sex.

To undergo sex change, all of these requirements must be met and each poses significant issues from a human rights perspective.

The requirement in item (ii), regarding not being married, was added due to Japan’s non-recognition of same-sex marriage. The purpose of the requirement in item (iii), regarding the absence of children, initially aimed to prevent confusion in parent-child relationships. The original condition was the absence of any children but the 2008 amendment limited the condition to the absence of underage children[7]. This continued insistence on the absence of underage children is motivated by concern for child welfare, specifically considering the impact of sex change of a parent on underage children. The requirement in item (iv), related to the removal of the genital gland, was enacted to prevent societal confusion arising from the use of birth-related reproductive functions to conceive children after sex change. Finally, the “resemblance” requirement in item (v) was established to prevent confusion in the use of public facilities such as changing rooms.

With respect to the requirement in item (ii), the Supreme Court decision[8] in 2020 upheld the provision and stated that allowing a change in the treatment of sex for those currently married could disrupt and confuse the current marriage order, which recognizes marriage only between persons of the opposite sex. The decision held that such a change might cause confusion in the existing marriage order and deemed it not unreasonable. The Supreme Court concluded that such a provision did not constitute an abuse of the discretionary power of the legislative body and did not violate the Constitution[9].

Similarly, concerning the “no minor children” requirement in item (iii), a Supreme Court decision[10] in 2021 cited a 2007 decision[11], stating that the condition cannot be considered as lacking in rationality. The decision acknowledged the need for considerations such as the potential for confusion in the family order and problems from the viewpoint of the welfare of the child. It concluded that this requirement did not represent an abuse of discretion by the legislative body and was not in violation of the Constitution.

The most contentious points of Article 3(1) of the GID Act have been the requirements outlined in items (iv) and (v) which mandate surgery. The Supreme Court first rendered a decision[12] on item (iv) in 2019. In that ruling, the Supreme Court unanimously deemed the provision constitutionally valid, citing the purpose of item (iv) to be threefold: to prevent issues in parent-child relationships due to the reproductive function of the assigned sex before sex transition, to avoid societal confusion, and to mitigate abrupt changes in a society that distinguishes between biological males and females.

However, just four years later in 2023, the Supreme Court unanimously declared item (iv) unconstitutional[13]. The Court held that Article 13 of the Constitution[14] guaranteed the “freedom not to be subjected to intrusion on the body against one’s own will” as an important right related to personal existence. It emphasized that item (iv), which involved the removal of testes or ovaries, constituted a significant restriction on this freedom. Therefore, the Court proposed a weighing of the degree to which a restriction could be deemed necessary for the purpose and the content and nature of the restricted freedom, the specific manner and degree of the restriction, etc. In doing so, it concluded that item (iv), being an excessive constraint, violated Article 13 of the Constitution when it was considered comprehensively.

On the other hand, the trial court did not make a ruling on item (v), which also imposes surgery requirements, despite the plaintiffs’ assertion of its unconstitutionality in line with that of item (iv). As a result, in reversing the judgment and remanding the case back to the court below, the majority did not make any judgment on this item. However, in this case, three dissenting opinions were attached opposing the remanding the case. While all three concurred with the majority that item (iv) was unconstitutional, the dissents also expressed that item (v), which mandated genital surgeries such as penectomy and vaginoplasty for transgender women and urethral lengthening and phalloplasty for transgender men, similarly constituted a significant constraint on the freedom not to be subjected to intrusion on the body against one’s own will, and thus violated Article 13 of the Constitution. They thus wanted to accept the plaintiff’s request for a sex change, believing that there was no other reason to refuse it.

The significance of this ruling lies in the recognition that, for the first time, the Supreme Court of Japan held a statute unconstitutional based on the reasoning that Article 13 of the Constitution guarantees the freedom not to be subjected to intrusion upon one’s body against one’s own will. The Court dismissed abstract concerns, such as causing societal confusion. However, the ruling still fell short of addressing other issues with the legislation in question. Firstly, the ruling did not recognize the right to choose the gender one identifies with. Similarly, the right to maintain one’s self-identity, as demonstrated by dissenting opinions in previous precedents, was not acknowledged. While the Supreme Court found the freedom not to be subjected to intrusion on the body effective for items (iv) and (v), the court made no ruling on items (i) to (iii). The Supreme Court seems to be of the opinion that Article 3 (1) of the the GID Act should not be considered as a whole, but rather should be read as separate matters from items (i) to (v). However, this approach failed to address the core transgender concern which lay in the ability to choose one’s desired gender without any constraints, and instead left the door open for further discrimination. Despite gender identity not being explicitly listed as a prohibited ground for discrimination under Article 14(1)[15], case law principles acknowledge that the protection of this article is not limited to enumerated grounds[16]. Therefore, making claims based on gender identity may also be possible.

1. Restriction on Washroom Usage

The second case involved a restriction on washroom usage for a transgender woman within her workplace at the Ministry of Economy, Trade, and Industry. The plaintiff identified as a woman despite being assigned male at birth. She had undergone feminization surgery and spent all her private time presenting as a woman. However, she had not undergone gender confirmation surgery. The defendant, after consulting with legal advisers and engaging in multiple exchanges with the plaintiff, established a policy for transgender individuals meeting certain criteria, permitting them to use the women’s washroom but advising them to do so in a restricted manner for the consideration of other staff members. This policy was communicated to the plaintiff. Subsequently, with the plaintiff’s consent, an explanatory session about her being transgender was conducted for staff members and, from the following week, the plaintiff began using the women’s washroom. However, it was crucial to note that the plaintiff was allowed to use a women’s washroom located on a floor two or more levels above her work area with some limitations on its use. While there are additional points of contention in this case, the primary issue revolved around the alleged illegality of the treatment that restricted the plaintiff’s washroom usage.

The trial court determined that the societal interests based on gender were legally protected, and restricting the use of washrooms corresponding to one’s self-identified gender constituted a constraint on legal interests[17]. While acknowledging the need for appropriate consideration for other female staff members, the court found that, given the objectively low potential for harm to other women due to the plaintiff’s use of female hormones and societal changes in perception, the treatment regarding washroom usage in this case was illegal under the Government Liability Act[18]. Consequently, the court declared the Personnel Commission’s decision to restrict the plaintiff’s washroom usage as illegal.

Upon appeal, the Tokyo High Court recognized that the Ministry of Economy, Trade, and Industry had actively considered possible measures based on the available information and the decision regarding restroom treatment was reached through dialogue and coordination with the concerned parties. Therefore, the court concluded that the treatment, which the plaintiff had accepted, was not significantly unreasonable, and there was no objective evidence of a substantial change in circumstances warranting the abolition of the specified restrictions at the current stage. While understanding the desire to act based on gender self-identification in the workplace, the court emphasized that the desire for happiness in the workplace was a sentiment shared by everyone in that environment. As a result, the court determined that the government’s response fell within the scope of discretion and was thus lawful.

However, the Supreme Court found that the plaintiff, due to the treatment in this case, was regularly disadvantaged either by using male washrooms or by being forced to use restrooms located away from the office floor. The Court noted that there was no clear objection from staff members regarding the plaintiff’s use of the washroom and there was no evidence present to show any necessity of special consideration for other staff members. Therefore, the Court concluded that there were no specific circumstances forcing the plaintiff to accept such disadvantages and that the government’s decision lacked validity, deviated from the scope of discretion, or amounted to an abuse of discretion, rendering it unlawful. While the decision was unanimous, five supplementary opinions were attached. Each supplementary opinion emphasized the disadvantages faced by the plaintiff but also highlighted the unique circumstances of this case. The scope of this case was limited and would not apply to public washrooms in general, as particularly emphasized in the supplementary opinion of Justice Imasaki.

Conclusion

The two judgements discussed in this paper have paved the way for progress in transgender rights within Japan. However, issues with the GID Act persist, involving item (v) and other requirements, prompting questions on how the Constitution should be interpreted. Regardless of whether the remaining concerns are limited to Article 13 or could be extended to Article 14, further clarification and elaboration of Supreme Court rulings are eagerly anticipated. Moreover, there is a need to further address many complicated issues involving treatment in prisons and treatment of women in sports events. In addressing such issues, a context-driven approach centered on Article 13 seems most reasonable.

In order for Japanese society to reconsider these issues, however, the equality right in Article 14 might become the primary focus. Japan, still in the early stages of addressing transgender issues compared to other nations, needs to navigate this labyrinth of complexities. The academic realm in Japan has seen minimal discussion on this matter, yet such discussion is critical if the country is to escape from this maze and establish a well-defined constitutional foundation for trans rights.

*Associate Professor, Chiba University Law School.

[1] Seiteki shiko oyobi gender identity no tayousei ni kansuru kokumin no rikai no zoushin ni kansuru horitsu [Act for Enhancing Public Understanding of Sexual Orientation and Gender Identity], Law no. 68 of 2023.

[2] Saikō saibansho [Sup Ct], grand bench, 25 October 2023,available at https://www.courts.go.jp/app/hanrei_jp/detail2?id=92191 (sex change case].

[3] Saikō saibansho [Sup Ct], grand bench, 11 July 2023, available at https://www.courts.go.jp/app/hanrei_jp/detail2?id=92191 (washroom case].

3 Kosekihō [Family Registration Act], Law no. 224 of 1947.

[5] Seidouitsusei shougaisha no seibetsu no toriatsukai no tokurei wo sadmeru hōritsu [Act to Provide Special Treatment of Sex for Gender Identity Disorder Patients], Law no. 111 of 2003 [hereinafter, GID Act].

[6] For example, in the World Health Organization classification, gender identity disorders were previously classified as mental and behavioral disorders, but after revision, they are now classified as conditions related to sexual health, and the term “Gender incongruence” is now being used. WHO, ICD-11 for Mortality and Morbidity Statistics (January 2023), available at icd.who.int/browse11/l-m/en.

[7] Originally, article (3)(1)(i) allowed trans people 20 years of age or older to apply. As the legal age of adulthood was lowered to 18 years of age, the GID Act also lowered the age to 18. There is room for debate as to whether 18 years of age is appropriate in comparison with the age in other countries but given the age limit for voting and other provisions of the Japanese Civil Code, it seems difficult to eliminate the age requirement.

[8] Saikō saibansho [Sup Ct], 11 March 2020, 2^nd petty bench, available at https://www.courts.go.jp/app/hanrei_jp/detail2?id=89311.

[9] Nihonkoku kenpō [Constitution of Japan], 1946.

[10] Saikō saibansho [Sup Ct], 30 November 2021, 3^rd petty bench, available at https://www.courts.go.jp/app/hanrei_jp/detail2?id=90733.

[11] Saikō saibansho [Sup Ct], 19 October 2007, 60 (3) Katei Saiban Geppo 36. At the time of the enactment, the requirement was that individuals could not have children at any age.

[12] Saikō saibansho [Sup Ct], 23 January 2019, 2^nd petty bench, available at  https://www.courts.go.jp/app/hanrei_jp/detail2?id=88274 .

[13] Supra note 2.

[14] Supra note 8, Art 13 [translated by National Diet Library, available at  https://www.ndl.go.jp/constitution/shiryo/03/076a_e/076a_etx.html: “All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs”.

[15] Supra note 8, Art 14 (1): All people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.

[16] Saikō saibansho [Sup Ct], 27 May 1964, grand bench, 18 (4) Saikō Saibansho Minji Hanreishu [Minshu] 676.

[17] Tokyo chihō saibansho [Tokyo District Ct], 12 December 2019, 1479 Hanrei Times 121.

[18] Kokka baishahō [Government Liability Act], Law no. 125 of 1947.

Written By: Hideki Oshita

Posted on: March 22, 2024

The treatment of sexual minorities is a significant issue in contemporary Japan.  Although demonstrating a relatively tolerant attitude towards homosexuality, and, save for a few periods, rejecting punishment for same-sex relationships[1], the mishandling of sexual minorities, particularly transgender individuals, is insidious in Japanese society due to the long-standing tradition of following an individual’s registered sex in situations where gender is relevant.

In the field of substantive criminal law as related to sexual offenses, revisions in 2017 and 2023 ensured that individuals are appropriately characterized as victims or perpetrators irrespective their sexual identity or orientation. However, there is ongoing debate regarding whether the use of public restrooms or bathhouses by transgender individuals constitutes the criminal offense of trespassing. In the field of criminal procedure, issues arise regarding the impact of bias against sexual minorities by investigative authorities, the problem of outing of individuals involved in investigations, and the influence of judges’ biases on trial outcomes. In the area of criminal detention, there are issues with the placement and treatment of individuals in facilities based on the sex indicated on their family register, as well as medical issues facing transgender suspects and defendants.

Overall, there is a palpable inadequacy with respect to the treatment of sexual minorities in the Japanese criminal justice system. While these issues are partly due to institutional factors, the societal norms surrounding the treatment of sexual minorities in Japan also play a significant role.

Introduction

Historically, from ancient times until around the 1900s, the Japanese held a relatively tolerant attitude with respect to homosexuality. Homosexuality between men was called “masculinity” or “shudo,” and was sometimes the subject of shunga (graphic books) and ukiyo-e (woodblock prints) during the Edo period (1603-1868). In the process of adopting Western culture during the Meiji period (1868-1912), aversion towards homosexuality developed. In spite of this, society generally tended to accept homosexuality. Presently, there is a strong positive attitude toward homosexuality demonstrated in pop culture by the genres of “BL” and “Yuri”.

Until the mid-2010s, there was a tendency in the media to treat sexual minorities in a discriminatory or derogatory manner. In recent years, however, TV dramas and movies are produced with greater sensitivity toward sexual minorities, and psychological barriers against sexual minorities are decreasing, especially among younger people.[2]

In Japan, a person’s sex must be recorded in the family registry[3] and gender-specific facilities are used in principle according to the sex on the family register. In 2003, a law on gender reassignment for transgender persons was enacted, but this law requires the removal of the genital gland and sex reassignment surgery to complete the sex change.[4] Unsurprisingly, not all transgender people can undergo sex reassignment surgery, preventing them from living in their self-identified gender. Therefore, differential treatment of transgender persons whose self-identification differs from the sex on their family registers is a major issue.

Flowing from this, as will be seen below, there is insufficient discussion on how sexual minorities should be treated in the criminal justice system.

I. Treatment of Sexual Minorities in Substantive Criminal Law

1. Penal Provisions Regarding Homosexuality

From ancient times until the Edo period, homosexuality was not a criminal offence. However, during the Meiji Era marked by a wider adoption of Western culture, the sodomy law saw enactment in 1872 and remained following the Revised Criminal Code in the same year.[5] Anal intercourse between two men constituted the crime of sodomy, and the parties were punished despite consensuality.[6] However, sodomy as a criminal offence was removed during amendments to the Criminal Code in 1880,[7] and no provisions to punish homosexuality have since existed in Japan.

2. Sexual Offenses

From 1907, when the current Criminal Code was enacted,[8] until the revision of sex crime provisions in 2017, primary sex crimes in the Criminal Code were indecent assault[9] and rape.[10] Rape involved solely female victims and required the insertion of the male genitalia into the female genitalia for the crime to be attempted.  All other indecent acts were punishable under indecent assault, which made no distinction between male and female victims or perpetrators, and thus applied to any act that was objectively indecent, regardless of gender identity or sexual orientation of the perpetrator or victim.

Despite the availability of sex reassignment surgery since 2003, no published cases demonstrate facts in which a woman who had undergone sex reassignment is found as a victim of rape, or in which a man who had undergone sex reassignment is found to have been a perpetrator of rape.

In 2017, the Criminal Code’s rape provision saw amendments in which the name of the crime of rape was changed to the crime of “forcible sexual intercourse, et al.”[11] This amendment was made on the grounds that men can also be victims, and that acts of bodily invasion including anus and mouth should be punished similarly to the original characterization of inserting the male genitalia into the female genitalia. As this crime is judged objectively on the relevant conduct of the perpetrator, its success or failure does not depend on the sexual identity or orientation of the victim or perpetrator.  Nevertheless, the crime requires the penetration of the male genitalia. Thus, the acts of a man inserting his genitalia into a woman, a man, or a man causing another man to insert his genitalia into himself, and a woman causing a man to insert his genitalia into herself have become punishable offenses as “forcible sexual intercourse, et. al.”

Since other sexual conduct constitutes only indecent assault, this provision did not consider as punishable the insertion of an object other than the male genitalia into the body. In 2023, Parliament debated an amendment to the Criminal Code, which now includes a provision making the insertion of body parts other than the male genitalia or objects into the vagina and anus punishable. This new provision was added to Article 177 and is punishable by the same statutory penalties.  According to this provision, acts committed by a woman against another woman would be included in the same category of offences.

Thus, even though the Japanese Penal Code was not amended primarily for the purpose of treating all sexual minorities equally, the amendments demonstrate these ends: each sex crime under the Code is punishable regardless of the sexual orientation or self-identification of the perpetrator or victim, so long as the impugned conduct violates one of these provisions.[12]

3. Trespassing

Other crimes involving sexual minorities, especially transgender persons, include the crime of trespass with respect to premises occupied by another person.[13]  In Japan, separation of gender in public washrooms, public bathhouses, and changing rooms is an established custom, which raises the question of which gender’s facilities a transgender person should use.

As mentioned above, the principle in Japan is to use facilities in accordance with the sex indicated on the family register. On this principle, the foregoing criminal offence of trespass will capture transgender individuals as a perpetrator if that individual uses the facilities of the sex that is not their assigned sex on the family register. However, “breaking into”, in the context of the crime of trespass, is defined as entering against the will of the person who has the right of residence or the right of management. There may be cases in which the administrator does not have a problem with transgender individuals using gender-specific washroom facilities. Oppositely, a trespass charge may remain to be made if a transgender individual elects to use a gender-specific washroom in light of a managerial posting that requires transgender individuals to use the gender-neutral restrooms provided. In this regard, Japanese media reported that a transgender person was charged with trespassing for entering the washroom of the gender she self-identifies with.[14]

More troublesome than washrooms is the use of public bathhouses. Because swimsuits are not worn in public bathhouses in Japan, there is significant resistance within Japanese society to the use of public bathhouses by individuals whose gender differs from their biological sex, more so than that to the use of public washrooms.  Currently, transgender people are so diverse: transgender individuals who identify solely as transgender in their minds, transgender individuals who have not undergone sex reassignment surgery but have undergone certain external changes due to, among other things, hormone therapy, transgender individuals who have undergone sex reassignment surgery but have not completed sex reassignment, and transgender individuals who live post-sex reassignment. Regardless of the stage, the question remains as to how these individuals should conduct themselves in these situations.

Unlike the case of public washrooms, some transgender women who possess the genitalia of males assigned at birth have been prosecuted and convicted of trespassing for entering cisgendered women’s bathhouses.[15] In the case of public washrooms, it might be said that if the user is not “visibly” transgender, a manager may not take issue with the individual’s use because the use of washrooms is private and the contact time with other users is short. On the other hand, in terms of usage, the range of acceptance for transgender people in the use of public bathhouses is much narrower than in the case of public washrooms.

Opinions are divided with respect to transgender individuals’ use of public bathrooms, even among those who argue that society should allow individuals to live according to their self-identified gender unencumbered. It is important to note the future possibility for transgender individuals to change their sex in Japan without undergoing sex reassignment surgery. In this event, the enforcement of gender segregation in public facilities as guided by the sex indicated on the family register is obsolete. Although there is an urgent need to discuss how sex as indicated on the family register should inform perceptions of gender and how transgender individuals ought to navigate gender-specific public facilities, sufficient discussion is yet to be had.

Ⅱ. Treatment of Sexual Minorities in Criminal Procedures

One of the distinctive features of criminal proceedings in Japan is that a suspect can be detained for up to 23 days per case.[16] This is commonly known as “hostage justice” and is the subject of international criticism.[17] Remaining under the control of investigative authorities for a long period of time often pressures the suspect to confess to the details of the case.

In such cases, suspects who intentionally conceal their gender identity and sexual orientation may be forced to confess using information relevant to their sexuality uncovered during the investigation process. They may be reluctant to disclose certain information, such as their motives, for fear of their sexual orientation being exposed and, consequently, the potential for discriminatory treatment from the investigating authorities due to their sexual orientation. Throughout the investigative process, sexual minorities face risks of discrimination and the possibility of exposure to other individuals involved in the investigation.[18]

Moreover, defense attorneys lack specific knowledge pertaining to sexual minorities, leading to inadequate representation. For example, in a case involving an assault between same-sex partners, a defense attorney asked the defendant, “Will you stop being homosexual from now on?” Further, a citizen judge trial system where members of the public sit together with professional judges to hear major criminal cases is currently evolving in response to the overt prejudices of the public against sexual minorities with respect to final verdicts.[19]

While sexual minorities face significant risks throughout criminal proceedings, these issues are not merely procedural in nature, but deeply rooted in societal prejudices and discrimination.

Ⅲ. Treatment of Sexual Minorities in Penal Institutions

In Japan, the same laws apply between arrest and detention during the investigative stage through to subsequent incarceration.[20]  Homosexual individuals may be placed in a single cell upon disclosure of their sexual orientation, while no special accommodations are provided without this disclosure. There are no special restrictions on homosexuality and it is possible, for example, to read books about homosexuality in one’s own room.  However, sexual contact with inmates in the same room is subject to disciplinary action.

In 2011 and 2015, the Ministry of Justice issued notice to penal institutions nationwide regarding transgender persons.[21] It stated that transgender individuals who have not undergone a sex reassignment should be detained in accordance with their registered sex and, in principle, should be detained in a single room both during the day and at night. Although the notice requires consideration of various aspects of post-incarceration treatment, it is not a rule but a guideline to inform the implementation of rules at the discretion of the head of the facility. In some facilities, decisions are made about whether transgender women should be treated differently: whether they could have their hair cut as women,[22] be allowed to use shampoo, or be allowed to wear underwear. However, these decisions are made by the head of the facility and not necessarily based on gender identity, but rather based on the presence or absence of physical changes and the results of a social life survey conducted prior to admission.

Particularly problematic is that the notice stipulates diagnosis and subsequent hormone therapy to remedy “gender identity disorder” during incarceration shall not be treated as medical measures unless particularly necessary circumstances are found, as it is not considered that the absence of these treatments would cause a significant impact on the inmate’s quality of life. However, if a person who has been undergoing continuous hormone therapy suddenly stopped such therapy, serious physical and mental effects arise. Therefore, the decision to support the sudden suspension of hormone therapy can be appropriately criticized.[23]  Nevertheless, in a case in which a person who underwent sex reassignment from male to female sought damages for the suspension of hormone therapy in jail, the court dismissed the claim on the grounds that hormone therapy is not an essential medical procedure.[24]

Conclusion

The current extent of protection afforded to the rights of sexual minorities in the Japanese criminal justice system in undoubtedly inadequate.  However, this issue is not exclusive to the criminal justice system, but reflects insidious societal attitudes towards sexual minorities, particularly transgender individuals, in Japan as a whole.

To address these issues, it is necessary to eliminate stereotyping and prejudice against sexual minorities, foster a society where individuals can freely express their gender identity, establish a system that allows individuals to change their gender without requiring surgery, promote respect for diversity, and cultivate a society grounded in respect for one another. To achieve this, it is crucial to transform the societal context in which the criminal justice system operates and foster a society that values and embraces diversity. Such a transformation will naturally also be reflected in the criminal justice system, prompting further reforms.

* Professor of Law, Ritsumeikan University School of Law.

[1] See infra note 5.

[2] Kazuya Kawaguchi, Seiteki mainoriti ni tuiteno ishiki:2019nen(dai2kai) zenkokucyousa houkokukai siryo [Awareness of Sexual Minorities – 2019 National Survey Results Report Materials], available at  http://alpha.shudo-u.ac.jp/~kawaguch/2019chousa.pdf.

[3] Kosekihō [Family Registration Act], Law no. 224 of 1947, art. 49(2).

[4] Seidouitsusei shougaisha no seibetsu no toriatsukai no tokurei wo sadmeru hōritsu [Act to Provide Special Treatment of Sex for Gender Identity Disorder Patients], Law no. 111 of 2003, art. 3 (GID Act).

[5] Kaisei ritsuryo [Revised Penal Code], Law no. 206 of 1872, art. 266.

[6] Kasumi Nobuhiko, Nori wo koete (Keio University Press, 2007), at 46.

[7] Keihō [Criminal Code], Law no. 36 of 1880.

[8] Keihō [Criminal Code], Law no. 45 of 1907.

[9] Ibid. art. 176.(“A person who, through assault or intimidation, forcibly commits an indecent act upon a male or female of not less than thirteen years of age shall be punished by imprisonment with work for not less than 6 months but not more than 10 years.”)(prior to the 2017 amendment).

[10] Ibid. art.177(“A person who, through assault or intimidation, forcibly commits sexual intercourse with a female of not less than thirteen years of age commits the crime of rape and shall be punished by imprisonment with work for a definite term of not less than 3 years”)(prior to the 2017 amendment).

[11] Ibid. (“A person who, through assault or intimidation forcibly engages in sexual intercourse, anal intercourse or oral intercourse (hereinafter referred to as “sexual intercourse, et al.”) with another person of not less than thirteen years of age is guilty of the crime of forcible sexual intercourse, et al. and is punished by imprisonment for a definite term of not less than 5 years”) (after 2017 amendment).

[12] In the 2023 revision, the provisions for sexual offences were also substantially changed. It dropped the requirement of “assault or intimidation” for a sex crime. A person who commits an indecent act or engages in sexual intercourse, oral intercourse, or anal intercourse by making it difficult for a person to form, express, or fulfill an intention not to consent or by taking advantage of such a state now shall be punished as a person who commits a crime such as non-consensual indecency or non-consensual sexual intercourse, et al..

[13] Keihō [Criminal Code], supra note 6, art.130(”A person who, without just cause, breaks into a residence of another person or into the premises, building or vessel guarded by another person, or who refuses to leave such a place upon demand is punished by imprisonment for not more than 3 years or a fine of not more than 100,000 yen”).

[14] Asahi Shinbun Digital, “Seijinin ha jyosei to setsumei no riyoukyaku, jyosei toire ni sin-nyuyougi de syoruisouken [A customer who explained that her gender identity was “female” was arrested for breaking into a women’s restroom]” (6 January 2022), available at  https://www.asahi.com/articles/ASQ163TGKQ15PTIL010.html. However, given the lack of subsequent coverage, it is presumed that no charge has been filed.

[15] Sendai chihō saibansho [Sendai District Court], 13 July 2020, Reiwa 2 (wa) no. 106, unpublished. In this case, the crime of building trespassing was recognized because the defendant had stolen women’s underwear that was left in the bathhouse after breaking in. However, the reason the defendant in this case committed the offences was “because he wanted to affirm himself as a woman or identify with women like the victims”. So, it should be distinguished from the case where he broke into the building for the purpose of stealing underwear to satisfy sexual desire.

[16] Keijisoshohō[Code of Criminal Procedure], Law no.131 of 1948 art. 208

[17] Committee against Torture, Concluding Observations on the Second Periodic Report of Japan adopted by the Committee at its 50th Session, CAT/C/JPN/CO/2.

[18] Mitsuishi Shunpei, “Sekusharu mainorithi to keiji bengo [Sexual Minorities in Criminal Cases]” (2017) 89 Kikan Keiji Bengo at 36.

[19] Ibid. at 39.

[20] Keijishisetu oyobi jyukeisya no syoguutou ni kansuru hōritsu [Act on the Treatment of Criminal Detainees and the Correctional System], Law no. 50 of 2005.

[21] The Director of Adult Correction Division and the Chief Medical Officer of the Correctional Bureau of the Ministry of Justice, “Sei douitsuseisyougai wo yuusuru hisyuuyousya no syoguu housin ni tsuite [Guidelines for the Treatment of Inmates with Gender Identity Disorder]”(1 June 2011), available at  https://www.nichibenren.or.jp/library/ja/opinion/hr_case/data/2018/notification_151001.pdf, and “Sei douitsuseisyougai wo yuusuru hisyuyousyano syoguusisinnnituite no itibu kaisei ni tsuite [Partial Revision of the ‘Guidelines for the Treatment of Inmates with Gender Identity Disorder]”(1 October 2015), available at  https://www.nichibenren.or.jp/library/ja/opinion/hr_case/data/2018/notification_151001.pdf.

[22] In principle, male inmates have their hair cut to 0.2 mm or 1.5 cm once a month, except before release. For female inmates, on the other hand, it is stipulated that their hair should be “Kabi ni wataru kotonaku seiso na kamigata [neat and tidy, without being flashy]”. Jyukeisya no hokeneisei oyobi iryou ni kansuru kunrei [Instruction on health and medical care of inmates], art.6, available at https://www.moj.go.jp/content/001174862.pdf.

[23] Japan Society of Psychiatry and Neurology, “Kyouseishisetsutou no hisyuuyousya dearu seidouitsuseisyougai toiujisya heno iryoutekitaiou ni kansuru youbousyo [Request for Medical Response to Persons with Gender Identity Disorder who are Detained in Correctional Facilities]” (19 March 2016), available at https://www.jspn.or.jp/uploads/uploads/files/activity/iryoutekitaiou_youbousyo_rev.pdf.

[24] Tokyo chihō saibansho [Tokyo District Court] 18 April 2019, Heisei 28 (wa) no. 18814, unpublished.

Written By: Shigenori Matsui

Posted on: March 22, 2024

Historically, most nations in the world assumed that a sex is binary: a person is either a male or female, and the distinction in sex[1] is biological and predetermined.  These nations also assumed that everyone has heterosexual orientation.  As a result, little concern for transgender or homosexual people (“sexual minorities”) existed.[2]  They are the people who are often referred to, more generally, as LGBTQ people. ^[3]

Canada’s past also shared this lack of concern.  However, Canada gradually evolved to a position of strong commitment in protecting sexual minorities, and is now a global example for what a strong commitment to welcoming sexual minorities ought to look like.

The question remains: what about Asian countries and how are sexual minorities treated in their nation’s respective constitutions and legislation?  In answering this question, this panel will examine the status of sexual minorities in Japan and China.  First, Professor Shigenori Matsui of the University of British Columbia, Peter A. Allard School of Law outlines the development of the rights of sexual minorities in Canada and contrasts it with their development in Japan.[4]  Next, Professor Jie Chen of the University of British Columbia, Peter A. Allard School of Law will examine the ambiguous situation in China.^[5]  As a follow-up, two visiting researchers provide detailed analyses of the status of sexual minorities in Japan: Professor Takashi Shirouzu of Chiba University will examine the status of transgender individuals and recent discussion on official sex registry change^[6] and Professor Hideki Oshita of Ritsumeikan University will examine the status of sexual minorities in Japanese criminal law.^[7]

These papers intend to show the history and current status of sexual minorities in Asia and cast doubt on their treatment, especially from the constitutional perspective.  Since the history and status of sexual minorities in Asia are not well known amongst English-speaking countries, these papers are of immense value in understanding societal attitudes and subsequent legal implications for sexual minorities in Asia.

Sexual Minorities and the Constitution in Japan

Shigenori Matsui*

Introduction

What is the constitutional status of sexual minorities?  Historically most nations paid sexual minorities little to no attention.  Their treatment never raised any constitutional concerns and various discrimination against them was regarded as natural or reasonable.  However, this lack of attention afforded to sexual minorities is no longer justifiable.  In lieu, their constitutional status and various discriminations needs critical reexamination.

In Part I, this paper examines Canadian progress and how Canada became a global leader in the protection of sexual minorities. In Part II, it examines, in contrast, the current status of sexual minorities in Japan.  In Part III, it will consider whether these treatments in Japan can be justified in light of the right of sexual autonomy protected by the Constitution.[8]

1. Sexual Minorities in Canada

Similar to other nations, Canada historically showed little concern for sexual minorities, assuming that gender is binary, i.e. a person is either a male or female, the distinction is biologically predetermined, and that everyone is cisgender.  On both birth certificates and passports, sexual identity was indicated as either male or female and there was no method to change the sex designation. Moreover, many public facilities, such as public washrooms, were separated by sex. These treatments created major impediments for transgender people who wanted to change their sexual or gender identity and forced them to suffer various serious disadvantages.

It had been also assumed that everyone had a heterosexual orientation. Marriage was defined as an exclusive union of one man and one woman.  Although there was no criminal offence against homosexuality, there was no system for same-sex partners to live together as a couple, let alone consummate a marriage.  During that time, such treatment of homosexual people was acceptable without much doubt.  For example, in Egan v. Canada,^[9] the Supreme Court of Canada (“SCC”) held that sexual orientation is captured by section 15(1) of the Canadian Charter of Rights and Freedoms (“Charter”) ^[10] and is therefore a prohibited ground of discrimination, but the SCC upheld the rejection of spousal allowance pursuant to the Old Age Security Act (“OASA”) for same-sex partners.  The majority found that the objective of the OASA was to support and protect “legal marriages” leading to procreation and to nurture the children who live within that relationship, which is by its nature heterosexual.  Thus, the majority concluded that the exclusion of same-sex partners was not irrelevant to the objective of this law and was justified under s.1 of the Charter.

This is a small sampling indicative of the extent to which sexual minorities suffered various disadvantages as a result of discrimination.  Beyond legal implications, there was a very strong moral prejudice against sexual minorities, causing them to face moral condemnation and harassment.

However, sexual minorities came to challenge these practices and prejudices.  Gradually, the SCC came to hold that discrimination against homosexual persons was an infringement of the right to equality protected by section 15(1) of the Charter and is unjustifiable under section 1 of the Charter. For example, in M v. H,^[11] the SCC held that the exclusion of same-sex partners from the definition of common-law spouse under section 29 of the Ontario Family Law Act was in violation of equality rights under section 15(1) of the Charter, and could not be justified under section 1. In Vriend v. Alberta,^[12] the SCC concluded that the omission of sexual orientation from the prohibited grounds in the Alberta’s Individual’s Rights Protection Act was unconstitutional.  The SCC held the exclusion of sexual orientation from the scope of prohibited grounds, considered in the context of the social reality of discrimination against homosexuals, clearly causes a disproportionate impact to homosexuals as opposed to heterosexuals and denies the equal benefit and protection of the law on the basis of sexual orientation, a personal characteristic which is analogous to those enumerated in section 15(1).  The SCC concluded that it lacked any pressing and substantial objective and failed to satisfy s.1 of the Charter. As a result, the discriminatory treatment of homosexual people is no longer constitutionally justifiable in Canada.

The next hurdle was an exclusion on same-sex marriage.  Historically, the common-law definition of marriage as an exclusive union between one man and one woman had been followed without overt opposition for its potential unconstitutionality.  However, homosexual people challenged this definition in courts, leading to several Court of Appeal judgments where the exclusion was held as unconstitutional as a violation of equality rights protected by section 15(1) of the Charter.  The federal Government decided not to file an appeal to the SCC and instead drafted a federal statute legalizing same-sex marriage.  Before enacting this legislation, the Government sought the opinion of the SCC.  The SCC, although refusing to answer the question posed by the Government as to whether the exclusion of same-sex marriage was unconstitutional, supported the power of the federal Parliament to redefine the meaning of marriage in legislating same-sex marriage.^[13]  As a result, same-sex marriage was legalized in Canada.^[14]

This movement to accept homosexual people in Canada prompted steps to extend this acceptance to transgender individuals.  Eventually, the government changed the system of sex designation on birth certificates and passports and allowed greater flexibility.  The government came to allow residents to change sex designation much more flexibly. This change forced a delisting of sex designation on many public documents or identifications.  This movement also advocated for the elimination of the segregation of public facilities, such as publish washrooms, based on sex. Gradually, gender-neutral or all-gender public restrooms became quite common.[15]

Finally, sex or gender identity and sexual orientation are now included in the “prohibited grounds” in the federal Canadian Human Rights Act^[16] and provincial human rights codes, thereby making it illegal for any private individuals and corporations to discriminate based on sex or gender identity or sexual orientation.  As a result, Canada became a global leader in protecting sexual minorities.  Although some issues remain, basic principles on equality rights are well settled.

1. Sexual Minorities in Japan

A similar traditional understanding and treatments toward sexual minorities had been common in Japan as well.  While Japan has a long history of homosexuality and a greater receptiveness to homosexual relationships, a pervasive moral prejudice and condemnation against homosexuality persisted.^[17] The same kind of prejudice and condemnation existed also against transgender people.

In Japan, upon the birth of a new child, the parents must register the baby at the local municipal office by submitting a birth registration notification under the Family Registration Act.^[18]  The parents are mandated to report the name of the baby together with the sex (“seibetsu”): either male or female.^[19]  The distinction is based on the judgment of physicians or midwives who assisted the childbirth and provided a birth certificate, and parents must submit this certificate upon birth registration.  The judgment of the physicians and midwives are based on anatomy: whether the baby has a penis or vagina.  Following registration, no system existed to allow for changes to this registered sex.^[20]  “Legal sex” was used widely as a method of identification and as a basis for differential treatment between male and female individuals. As a result, transgender individuals suffered serious discrimination and disadvantages in their everyday lives.

Pressured by protests, the Diet, or national legislature, came to accept sex registry changes on the family registry for certain transgender people. According to the Act to Provide Special Treatment of Sex for Gender Identity Disorder Patients (GID Act),^[21] certain transgender patients can ask the family court for a sex registry change.  The applicant must:

(a) be over the age of eighteen,

(b) be unmarried,

(c) have no minor children,

(d) have no genital gland or be permanently lacking function of a genital gland, and

(e) have the body structure with the appearance resembling the sexual organs of the other sex.

These requirements are extremely narrow and restrictive and, as a result, many transgender people are still prevented from changing their respective sex registry.^[22]

Although there was no offence prohibiting homosexual intercourse in the Criminal Code, it was only forced sexual intercourse with a female person that could constitute rape as prohibited by the Criminal Code.^[23]  The Prostitution Prevention Act prohibits prostitution and becoming a customer, but it only prohibits “sexual intercourse,” as referring to the penal penetration of the vagina.  There has not been much discussion on whether and to what extent these provisions could be applied to sexual minorities.  The rape provision was revised in 2017 to prohibit “forcible sexual intercourse, et al.” with anyone, meaning “sexual intercourse, anal intercourse and oral intercourse”.  As a result, not only female individuals but male individuals are protected.  Yet, insertion of fingers or objects into the vagina was not still covered and there was a doubt as to whether forcible lesbian intercourse between two women is covered by the amendment as well.  It was only after the further amendment in 2023 that the prohibited “forcible sexual intercourse et al.” came to include insertion of body parts other than penis or objects into vagina or anus without consent.  The Japanese sexual offence provisions in this sense had long ignored the existence of sexual minorities.^[24]

Same-sex marriage was not accepted in Japan despite no explicit ban or exclusion in the Civil Code (marriage registration application from the same-sex couple would simply not be accepted).^[25]  Same-sex couples are precluded from common law marriage relationships,^[26] from the definition of “spouse” in tax law,^[27] and from receiving medically-assisted reproduction.^[28] This list is just a scratch of the surface of discrimination against homosexual people in Japan.

Currently, transgender people are challenging the discriminatory and restrictive requirements for changing sex on the family registry, while homosexual couples are challenging the exclusion of same-sex marriage as unconstitutional.  Furthermore, the LGBTQ community seeks the enactment of a Human Rights Act or Civil Rights Act prohibiting unreasonable private discrimination. These challenges must inform our perspective and ask us to reconsider their status under the Constitution.

III. Sexual Minorities and the Constitution

It is disappointing to find in Japan that there is still not enough concern or respect for sexual minorities. The most fundamental issue impacting Japanese treatment of sexual minorities is the absence of constitutional discussion on what defines a person’s sex and whether citizens should be allowed to enjoy complete sexual autonomy.

The Constitution of Japan, of 1946,^[29] mandates that everyone should be respected as individuals (article 13),^[30] guarantees “life, liberty and pursuit of happiness” (article 13),^[31] and prohibits sexual discrimination and guarantees equality rights (article 14).^[32] Moreover, it has a special mandate for family relationships to be built on individual dignity and the essential equality of the sexes (article 24).^[33] The Constitution provides the following:

“Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.

With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.”

This special mandate was inserted into the Constitution with sober reflection on the gross sexual discrimination in family relationships that was fostered under the former Meiji government. As such, the mandate is clearly a special provision on equality rights but at the same time, it is possible to view this provision as a constitutional guarantee of the right to sexual autonomy, the right to decide the personal matters related to sex by one’s self.^[34]

The right to sexual autonomy should include sexual freedom and freedom of choice for childbirth. Sexual freedom should further include freedom to decide and change sexual or gender identity and freedom to have sex. Freedom of choice for childbirth should further include freedom to have a child, to prevent pregnancy by using contraceptives, and the freedom to terminate a pregnancy before it’s term, i.e., abortion. Since the right to sexual autonomy is integral to individual dignity and essential for the survival of liberal democracy, the judiciary must vigorously protect this right against government infringement. The government should not be allowed to restrict this right unless such a restriction is essential for serving a compelling public interest and the courts, by exercising the power of judicial review,^[35] will be able to closely examine and determine whether the restriction is justifiable or not.

From this perspective, the preclusion of sex registry change for transgender people is highly questionable. Every individual should have a right to decide one’s sexual or gender identity and change it. Therefore, while it may be permissible to mandate the notification and registration of sex, the inclusion of a gender to differentiate individuals between male, female or others is of critical importance. If “sex” to be registered on the family registry should be read as “gender,” then each individual should have a right to change their gender according to their wishes. The requirements imposed for a sex registry change for transgender people under the Special Act are utterly unjustifiable, if “sex” to be registered is a gender.^[36]

Government discrimination against homosexual people is also unjustifiable. In light of the constitutional protection of equality right by article 14, any unjustified discrimination should be invalidated. Since the Constitution lists certain classification such as sex as suspect, such discrimination based on suspicious classification needs to be subjected to rigorous judicial review. Any sex discriminations within family matters are also precluded by article 24. Although the Constitution does not explicitly list sexual orientation as suspect grounds of discrimination, there is ample reason to apply similarly rigorous judicial scrutiny to any discriminations based on sexual orientation since it may be viewed as a kind of sex discrimination. All governmental discriminations against homosexual people thus need to be viewed as unconstitutional unless it could be justified as an essential means to accomplish a compelling goal.^[37] Each individual should be also granted a right to decide their sexual orientation. It does not matter whether the individual is heterosexual or homosexual. There is simply no reason to preclude same-sex marriage. The preclusion of same-sex marriage for homosexual couples in Japan is therefore highly questionable.

Private unreasonable discrimination against sexual minorities needs to be banned as unlawful and illegal. It is utterly unjustifiable to leave this kind of unwarranted private discrimination without any prohibition. The government should enact a Human Rights Act or a Civil Rights Act and ban such discrimination along with other unreasonable discrimination, such as discrimination based on race, colour of skin, ethnic origins, religion and sex. The government should set up an independent regulatory agency, such as a Human Rights or Civil Rights Commission, to enforce this ban by filing criminal charges, issuing administrative orders, mandating cease-and-desist orders, ordering damages to victims, imposing hefty civil fines, and also assisting victims in seeking civil redress.

Even without such a statutory ban, any unreasonable private discrimination ought to be viewed as illegal by the courts in light of the mandate in the Civil Code to interpret its provisions in light of the “individual dignity and essential equality of sexes.”^[38] Any legal action which is contrary to the public order and good morality is void^[39] and any illegal infringement of rights and legal interests could be a tort.^[40] There is no need for the courts to wait for the enactment of statutory bans to crack down on discrimination based on sexual or gender identity or sexual orientation.

Conclusion

One may wonder why this paper focuses on the “right to sexual autonomy” rather than “privacy” as developed and accepted in the United States. The Supreme Court of the United States (“SCOTUS”) developed privacy jurisprudence to provide constitutional protection to many of the foregoing issues, discarding the prohibition on abortion and homosexual sodomy^[41] and legalizing the same-sex marriage.^[42]  However, with the most recent Dobbs judgment,^[43] the future of these privacy judgements is unclear.  Although many academics support this privacy jurisprudence, it is questionable whether the choice to employ “privacy” is the most apposite option.  The concept of “privacy” as defined by the SCOTUS is extremely ambiguous and is without boundary.  Moreover, many of the issues discussed here involve a partner or relations between people and it is hard to view such individual choices as “private.” In light of this, it is much more appropriate to reconsider the foregoing questions involving sexual minorities from the perspective of sexual autonomy rather than privacy.  Sexual or gender identity and sexual orientation remain an individual choice and it is vital to ground this right to sexual autonomy firmly in the Constitution to provide solid protection to all choices that flow from this entitlement as a substantive right.

This urgent necessity is also applicable to other countries in the world, including Canada.  In Canada, the SCC has not squarely held that sexual autonomy, including a right to determine one’s gender identity and sexual orientation, is a constitutionally enshrined right.  It is true that the SCC has relied upon section 15(1) of the Charter to mandate equal treatment between heterosexual people and homosexual people.  Yet, the fact remains that the underlying right is not squarely established.  Some may claim that the equality right is sufficient and further grounding the right of sexual autonomy into the Constitution is unnecessary.  However, this is not sufficient, as the equality right will be only triggered upon discrimination.  With this in mind, there exists a clear necessity to firmly enshrine the right of sexual autonomy as a constitutionally protected right in Canada as well.

*This panel discussion is a part of the Constitutional Crossroads Conference, which took place at the University of British Columbia, Peter A. Allard School Law, on January 12-14, 2023.

[1] Sex is generally believed to be a biological distinction whereas gender is generally believed to be a social distinction. Transgender people generally refer to the people whose gender identity does not correspond to their biological sexual identity. However, in some countries, such as Japan, there is no clear-cut distinction between sex and gender. Moreover, some people are not happy with their biological sex and went ahead with sex reassignment surgery and hormone therapy to become a person with opposite sex.They may choose to identify as transsexual people. During this panel, we don’t want to exclude anyone from our discussion.

[2] Some people might object to the use of the words of “sexual minorities,” because these people do not want to be viewed as minorities. Yet, the fact remains that they are minorities who are vulnerable and need stronger judicial protection for the constitutional analysis. This is a reason why we refer them as “sexual minorities.” We don’t have any intention of hurting anyone.

^[3] There are so many different words to refer these sexual minorities: LGBT, LGBTI, LGBTQ, LGBTQ+, LGBTQA, LGBTQA+, 2SLGBTQ+, or something else. In this panel, each panelist chose a best word for their analysis.

[4] Shigenori Matsui, Sexual Minorities and the Constitution in Japan.

^[5] Jie Chen, Sexual Minority Rights in China from the Perspective of Law and Politics. Professor Cheng’s paper will be published on other publication.

^[6] Takashi Shirouzu, Trans Rights in Japan.

^[7] Hideki Oshita, Sexual Minority in the Japanese Criminal Justice System.

* Professor of Law, University of British Columbia, Peter Allard School of Law

[8] Shigenori Matsui, Sex, Sexuality and the Constitution (UBC Press 2023).

^[9] [1995] 2 SCR 513.

^[10] Canadian Charter of Rights and Freedoms, Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.).

^[11] [1999] 2 S.C.R. 3.

^[12] [1998] 1 SCR 493.

^[13] Reference re Same-Sex Marriage, [2004] 3 SCR 698.

^[14] Civil Marriage Act, S.C. 2005, c. 33, s.2 (defining marriage, for civil purposes, as “the lawful union of two persons to the exclusion of all others.”).

[15] Although sex needs to be registered in Canada, the parents can choose “X” instead of male or female, and every individualis allowed to change it without any sex reassignment surgery. Therefore, sex to be registered actually means gender. Indeed, many government websites refer to “gender” designation instead of “sex” designation.

^[16] Canadian Human Rights Act (R.S.C., 1985, c. H-6), s.3(1).

^[17] At least Japan has a long history of homosexuality and the homosexual relationship is very popular nowadays in Japanese comics and popular television dramas. But there used to be and still is a wide deep prejudice against sexual minorities in Japan. Nagayasu Shibun, Sexual Minorities in Japan: The Myth of Tolerance, nippon.com (Oct 21, 2016), https://www.nippon.com/en/currents/d00253/. Although the majority of Japanese people are willing to accept homosexuality, one-third of the population steadfastly opposes it. Statista, Attitudes towards homosexuality in Japan as of September 2019, https://www.statista.com/statistics/1333186/japan-homosexuality-acceptance-level/.

^[18] Kosekihō [Family Registration Act], Law no. 224 of 1947, art. 49(1).

^[19] Ibid. art. 49(2). The Japanese word “seibetsu” could be viewed as either sex or gender. But the government has interpreted it to mean “sex.” Since the sex of the baby is confirmed by a physician or a midwife who assisted the baby birth and is based on the physical characteristics of the baby whether the baby has a penis or vagina, probably it should mean physical sex and not gender. If this interpretation is correct, then there is no requirement for registration of gender in Japan. This might imply that the Japanese law has not distinguished sex and gender and has accorded the different treatment of people solely based on sex of a person. It means that the Japanese law has not granted any independent status to gender, different from sex.

^[20] The name of the baby is also needed to be reported and registered. The name of the baby is often different depending upon whether a baby is a boy or a girl. However, there is a system to allow the registry change of first name with the permission of the family court.　Family Registration Act, supra note 11, art. 107. Moreover, there is nothing to prevent the use of common name or trade name different from the registered legal name.

^[21] Seidouitsusei shougaisha no seibetsu no toriatsukai no tokurei wo sadmeru hōritsu [Act to Provide Special Treatment of Sex for Gender Identity Disorder Patients], Law no. 111 of 2003 (GID Act).

^[22] For more detailed analysis, see Shirouzu’s paper.

^[23] Keihō [Criminal Code], Law no. 45 of 1907, art. 177. Since “sexual intercourse” was interpreted as “penal penetration of vagina,” it was natural only female persons who could be victim of rape.

^[24] For more detailed analysis, see Oshita’s paper.

^[25] Minpō [Civil Code], Law no. 89 of 1896, art. 739 (mandating a marriage notification to the local municipal office in accordance with the Family Registration Act); Family Registration Act, supra note 11, art. 76.

^[26] There is a separate local residence registration system, which will record personal information of all residents, regardless of nationality. Jumin kihon daichohō [Local Residence Registration Act], Law no. 81 of 1967. It is created based on the family registry, but the applicant can record the status of de facto married spouse as “spouse (unmarried),” indicating that the couple is at least de facto married. Apparently, homosexual couples cannot use this procedure. Common law married couples or de facto married couples can be treated as married couples for the purpose of social security benefit payment. But the homosexual couple is prevented from this treatment as well.

^[27] Shotokuzeihō [Income Tax Act], law no. 33 of 1965, art. 83; Souzokuzeihō [Inheritance Tax Act], Law no. 73 of 1950, art. 19-2.

^[28]　Japan Society of Obstetrics and Gynecology,  http://fa.kyorin.co.jp/jsog/readPDF.php?file=74/7/074070749.pdf#page=17 (IVF procedure is limited to married couples although they no longer have to be legally married).

^[29] Nihonkoku kenpō [Constitution of Japan], 1946.

^[30] Ibid. art. 13.

^[31] Ibid.

^[32] Ibid. art. 14(1)(“All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin”).

^[33] Ibid. art. 24.

^[34] I elaborated this position in my book, Matsui, supra note 1.

^[35] Constitution of Japan, supra note 22, art. 81.

^[36] Moreover, this Act is premised upon the perception that transgender people have a disability and that they can be treated or cured. This perception is no longer justifiable. If the sex to be registered on the Family Registration Act is a biological or physical sex, then that sex could not be changed unless a person received a sex reassignment surgery. As we already saw, the Japanese government seems to assume that “sex” to be registered is a biological or physical sex and, therefore, it is not a “gender” to be changed simply because of gender dysphoria. Surely, there might be necessity to track the biological or physical sex of a person. But it is more important to track “gender” for personal identification purposes. Then, it is the “gender” that needs to be registered and then the gender could be and should be changed according to one’s wish. The problem is that the Japanese government used biological or physical sex as a criterion for separate and different treatment between male and female.

^[37] Even when a transgender woman needs to be viewed as a “woman,” this does not mean that any different treatment between cisgender woman and transgender woman should be struck down. If there is a compelling reason and it is an essential means to accomplish that goal, then a different treatment should be justified.

^[38] Civil Code, supra note 18, art. 2.

^[39] Ibid., art. 90.

^[40] Ibid., art. 709.

^[41] Lawrence v. Texas, 539 U.S. 558 (2003).

^[42] Obergefell v. Hodges, 576 U.S. 644 (2015).

^[43] Dobbs v. Jackson Women’s Health Organization, 597 U.S. — (2022). [Dobbs]