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.