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.

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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.

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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]

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Written By: Shigenori Matsui

Posted On: September 20, 2023

Introduction

Barely one year has passed since I sent my final draft of Sex, Sexuality and the Constitution (UBC Press 2023) to the printer,^[1] but there have been several significant changes during this very short period of time. These changes do not affect my overall argument in my book: there is an urgent need to consider all legal issues regarding sex, sexuality, and family as matters of constitutional law and it is most appropriate to view all these constitutional issues as an issue of the right to sexual autonomy. And, although I focused on Japan to examine these issues, they do not affect my argument that the lessons we can learn from Japan should be seriously considered in other countries as well.

Yet, I believe that some details of the book should be updated, although I did mention in my original work that there was a high likelihood of change following publication. At least five significant changes have occurred: the passage of the LGBTQ People Respect Act, significant amendments to the rape provision, significant amendment to the law of parentage, the decision to allow abortion pills for artificial termination of pregnancy, and the further decline in childbirth rate. In this blog, I would like to add updates to my book.

1. Enactment of the LGBTQ People Respect Act

With a significant increase in calls to add further protection for LGBTQ people, the ruling Liberal Democratic Party (LDP) finally decided to enact a statute calling for respect for LGBTQ people. In June, 2023, the Diet passed the Act to Promote Public Understanding toward Diversity Based on Sexual Orientation and Gender Identity, introduced by a private bill drafted by the LDP members.^[2] This Act purports to “foster the public willingness to accept diversity based on sexual orientation and gender identity, thereby contributing to the accomplishment of a tolerant society toward diversity based on sexual orientation and gender identify, by laying down the fundamental principle, clarifying the roles of the central government and local governments, and providing for the establishment of a fundamental plan and other necessary measures, toward promotion of public understanding of the diversity based on sexual orientation and gender identity” (s.1). The Act defines “sexual orientation” as “orientation toward partners based on romantic feeling or sexual feeling”, and “gender identity” as “one’s own consciousness of one’s sex’s affiliation including whether one has a different gender identity or the degree of difference” (s.2).

It then declares the fundamental principle that “there should be no improper discrimination due to sexual orientation or gender identity, based on the principle that every person should be respected as an indispensable individual equally enjoying the fundamental human rights, regardless of sexual orientation or gender identity, and we need to contribute to the accomplishment of a society which allows the people to coexist by mutually respecting the integrity and individuality of others” (s. 3). The central government is mandated to try to adopt and implement various measures to promote diversity with regard to sexual orientation and gender identity based on the fundamental principle stipulated in the previous section (s. 4), and the local government is mandated to do the same in their local jurisdictions in cooperation with the central government (s. 5). Private business operators are mandated to “try to promote workers’ understanding toward diversity toward sexual orientation and gender identity, by providing public promotion, improving underlying working environment, providing an opportunity to consult with others, and to cooperate with these government measures adopted by the central government and local governments toward sexual orientation and gender identity (s. 6). The central government needs to adopt the fundamental plan based on a cabinet decision and publish it for the promotion of comprehensive and planned enforcement of various measures to promote public understanding on sexual diversity with respect to sexual orientation and gender identity (s. 8). The central government is mandated also to promote research into the formulation of measures for promoting public understanding (s.9) and try to adopt necessary measures to promote a deeper knowledge of sexual diversity on sexual orientation and gender identity, by providing education, public promotion, and other measures, with private business operators and educational institutions mandated to try to adopt necessary measures (s.10).

The Act took effect immediately right after promulgation in the National Gazette on June 23, 2023.

There was a complicated background to the passage of this bill. The LGBTQ people and their supporters wanted the statute to prohibit discrimination against them and wanted to protect transgender people upon their own self-identification. Anticipating the 2023 summit meeting in Hiroshima, the Prime Minister Kishida decided to enact a statute to protect sexual minorities in Japan. Yet, the ruling party had a concern that the outright ban on discrimination might lead to significant changes in the society and might allow some men to enter into women’s toilet or public baths (where customers are supposed to take off their clothes and bathe in the hot water together) pretending to be transgender woman if we allowed transgender people to self-identify. As a result, the enacted statute does not carry any ban and merely mandated a respect for these sexual minorities. I also left unclear whether transgender people can decide for themselves to be transgender: they might require some kind of verification by professionals such as medical doctors. In the end, the word of “gender identity” is chosen over “sexual self-identification” and “sexual identity” without clarification to this point.

It is a far cry from what has been called for by LGBTQ people and their supporters. There is no legal ban on discrimination against them. Moreover, during the process leading to the passage of the bill, the ruling party made a compromise with some minority political parties to select ambiguous words in order to obtain their support. It also made a last-minute revision to call for “cooperation with family, local community, and other interested parties” in promoting the understanding of sexual minorities (s.6(2)). Many LGBTQ people and their supporters are concerned that this last-minute revision might allow the community to slow down or postpone the implementation of various measures to promote protection for sexual minorities, and may potentially withhold their cooperation altogether.^[3]

As a result, there are no significant changes to the rights of individuals with varying sexual identities and orientations. Same-sex marriage is still precluded, and transgender people are not free to change their sex or gender identification on the family registry. There is also no statue prohibiting private discrimination against sexual minorities, let alone more general civil rights legislation or human rights legislation. The introduction of the new statue is certainly progress, but it is still a baby step and there is long road ahead toward full acceptance of sexual minorities in Japan.

2. Amendment to the Rape Provision

Secondly, with respect to the right not to be forced to have sex, the Japanese Diet passed the amendment Bill to Amend Parts of the Criminal Code and the Code of Criminal Procedure^[4]  to add significant changes to rape provisions in Japan.

Japan used to ban forcible sexual intercourse with assault or intimidation against a female person as a rape and imposed the imprisonment term of no less than three years. Yet this provision was widely criticized as too narrow. It was meant to protect only female persons (sexual assault against a male person could be a forcible indecency but not a rape, carrying a much lighter sentence). It was only forcible sexual intercourse that was banned, meaning penal penetration of a vagina (other sexual conducts could not be a rape). It was only forcible sexual intercourse with “assault or intimidation” that could constitute a rape (if there was no assault or intimidation, then rape charge was impossible). Moreover, a criminal complaint of the victim was necessary for prosecutor to file a charge and there was a statutory limitation period for filing criminal charges. Although the courts came to add very liberal interpretations to all these requirements for rape, allowing conviction in all circumstances where there was no consent, still there was a fear that, unless the victim was physically assaulted or unable to resist or escape, a rape conviction could be impossible. Moreover, the imposed sentence for a rape was quite light (lighter compared even with robbery).

In 2017, the rape provision was significantly revised. The 2017 amendment changed the name of crime from “rape” to “forcible sexual intercourse, et al.” The 2017 amendment protected both men as well as women. The prohibited conducts are defined as “sexual intercourse, et al.,” meaning “sexual intercourse, anal intercourse and oral intercourse.” The covered conduct was thus greatly enlarged compared with the original one. The 2017 amendment also increased the punishment to imprisonment for no less than five years. The criminal complaint requirement was dropped and the statute of limitation for filing a charge was extended. Yet, still some sexual conducts, such as inserting fingers or objects into women’s vagina, were not covered. The “assault or intimidation” requirement still remained, with the possibility that the conviction might not be obtained if there is no physical violence or when the victim was not totally overpowered to refuse or run away. Many feminist groups thus called for further amendment to prohibit all sexual intercourse without consent.

Now, barely six years have passed, but the Diet already added further radical amendments to the Criminal Code in 2023. First, it changed the name of crime to “sexual intercourse, et al. without consent” (names of other sexual assaults were also changed).

As a result, now any “obscene act without consent” (s.176(1)), imposes criminal imprisonment^[5] for no less than six months and no more than ten years. This applies if the accused engaged in obscene acts by causing a situation which makes it hard to have an intention not to give consent, express it or to fulfill it or by taking advantage of such situation, due to one of the following conducts or circumstances or a similar conduct or a circumstance, regardless of whether there was a marriage relationship:

1. Using assault or intimidation, or when the victim suffered either of them,
2. Causing physical and mental impairment or when the victim is suffering from it,
3. Providing alcohol or drugs or when the victim was influenced by either of them,
4. Making the victim to sleep or lose clear consciousness, or when the victim is suffering from either of them,
5. Leaving no time for the victim to have an intention not to give consent, express it or fulfill it,
6. Causing fear or surprise by forcing the victim to face unanticipated circumstances or when the victim is suffering from fear or surprise from facing such a circumstance,
7. Causing phycological trauma by abuse or when the victim is suffering from it,
8. Making the victim to worry about the possible disadvantage resulting from the influence based on the status in economic or social relationship, or when the victim is suffering from such worry.

If the accused engaged in an obscene act by making the victim mistaken that the conduct is not obscene or identity of the person who was conducting or when the accused engaged in the obscene act taking advantage of such mistake, the same punishment will be imposed (s.176(2)). If the accused engaged in obscene conduct toward anyone under the age of sixteen, they should be subjected to the same publishment, provided that if the accused is born no less than five years earlier than the victim and the victim was under the age of sixteen but was no less than thirteen (s.176(3). This is comparable to sexual assault in other countries.

Similarly, now “sexual intercourse, et al. without consent” provides (s.177(1)):

Anyone who engaged in sexual intercourse, anal intercourse, oral intercourse, or inserted a part of the body (except for penis) or object into vagina or anus and was obscene (hereinafter cited as sexual intercourse, et al.) should be sentenced to imprisonment for a definite term of no less than five years, regardless of the marriage relationship, if the accused engaged in such acts by causing a situation that makes it hard to have an intention not to give consent, express it or to fulfill it or by taking advantage of such situation, due to one of the following conducts or circumstances listed in s.176(1), or a similar conduct or a circumstance.

If the accused engaged in a sexual intercourse, et al. by making the victim mistaken that the conduct is not obscene or identity of the person who was conducting or when the accused engaged in sexual intercourse, et al. taking advantage of such mistake, the same punishment will be imposed (s.177(2)). If the accused engaged in sexual intercourse et al. toward anyone under the age of sixteen should be subjected to the same publishment, provided that if the accused is born no less than five years earlier than the victim and the victim was under the age of sixteen but was no less than thirteen (s.177(3)).

S.176(1) is also applicable to anyone who engaged in obscene acts by taking advantage of the influence as a guardian against anyone under the age of eighteen (s.179(1)), and s. 177(1) is applicable to anyone who engaged in sexual intercourse, et al. taking advantage of the influence as a guardian against anyone under the age of eighteen (s.179(2)). In other words, no additional conduct or circumstance is required for conviction, if anyone who engaged in obscene conducts or sexual intercourse, et al. taking advantage of the influence as a guardian against anyone under the age of eighteen.

All the attempts to commit crimes stipulated in s. 176, s.177 and s.179 are similarly punishable as before (s. 180). If the victim died or was injured as a result of the crime stipulated in s.176(1), s.179(1), or these attempts, the accused will be punished by imprisonment for an indefinite term or less than three years (s.181(1) and if the victim died or injured as a result of the crimes stipulated in s. 177. S.179(2) or their attempts, the accused would be punished by imprisonment for an indefinite term or for less than six years (s.181(2)). If anyone committed a crime of robbery or its attempt and also a crime stipulated in s.177 or its attempt, or anyone who committed a crime stipulated in s.177 or its attempt and committed a crime of robbery or its attempt, then the accused will be punished by imprisonment for indefinite term or no less than seven years (s.241).

Thirdly, the Amendment created another crime of sexual nature toward minors, in addition to sexual assault. Thus, anyone who engaged in one of the following conducts for obscene purposes toward anyone under the age of sixteen (if the person under the age of sixteen is more than thirteen, then this provision is only applicable when the accused was born no less than five years earlier than the victim) should be subject to confinement for no more than one year or criminal fine of no more than 500,000JPY:

1. Demanding meeting by using intimidation, deception or luring,
2. Repeatedly demanding meeting despite the fact that the meeting demand was refused, or
3. Demanding meeting by providing money or other benefit, proposing or promising it (s.182(1)).

Anyone who actually met for obscene purposes with anyone under the age of sixteen by committing the crime stipulated above should be subject to imprisonment no more than two years and fine no more than 1 million JPY (s.182(2)).

Moreover, anyone who demanded one of the following conducts from anyone under the age of sixteen (second item listed needs to be the conducts which are obscene), should be subject to criminal confinement for no more than one year and criminal fine of no more than 500,000JPY).

1. Making that person to take a position of sexual intercourse, anal intercourse or oral intercourse and transmit its image, or
2. In addition to the previous conducts listed, making that person to take a position that allows insertion of a part of the body (except for penis) or objects into vagina or annus or being inserted, position that allows touching or being touched with sexual parts (sexual organs, annal part, or other sexual parts (hip or buttock surrounding the sexual organ or annus), or position exposing sexual parts and transmitting its image (s.182(3)).

Fourth, the 2023 amendment extended the statute of limitation for filing prosecution for a crime of sexual intercourse, et al. without consent to fifteen years and a crime of an obscene act without consent to twelve years. But the period between the time of commission of crime and the time victim became eighteen years old should not be counted (Code of Criminal Procedure, s. 250).

The Act was promulgated on June 23, 2023, and is supposed to take effect 20 days after the promulgation. It was enforced from July 13, 2023.

The expansion of the sexual conducts covered has been one of the most important arguments of feminist groups for a long time and the 2023 amendment finally accomplished this expansion. The removal of “assault and intimidation” and its replacement of “without consent” has been also another important argument for a long time. The 2023 amendment finally accomplished this too.

This is certainly a wise decision since it defines the crime as sexual intercourse “without consent,” thus making it clear that any sexual intercourse without consent is unlawful. It listed, however, a number of specific conducts or circumstances where consent can be denied. As the text of the amended provision made clear, listed conducts or circumstances are not exclusive and instead are merely illustrative, since a similar conduct or circumstance can also qualify to deny consent. Yet, although this amendment clarified the requirement for a criminal charge, it may not be in the best interest of the victims, since it would be extremely hard to figure out what should be defined as a crime since the specific conduct or circumstance is listed as a requirement to punish the sexual intercourse, et al. without consent. It was much better to impose criminal punishment to anyone who engaged in sexual intercourse (with an expanded definition) without consent and list these specific conducts as illustrations for denying the consent in a separate section or subsection. Nobody can remember these listed conducts or circumstances and it also still leaves doubt as to whether these are the exclusive list.

Moreover, opposition to removing the assault or intimidation requirement was a reflection of a fear that the prosecutor will have greater difficulty in proving the absence of consent. It is much easier, it was believed, to prove assault or intimidation, than to prove that the victim did not give consent. It is unclear whether this fear was sufficiently alleviated. We must wait and see how this 2023 amendment will be actually enforced. If it is still deficient, then the Diet needs to come back again and add another revision.

3. Amendment to the Law of Parentage

During my examination on the right to have a child in my original work, I briefly explained the law of parentage and argued that it is totally outdated and does not fit with the development of the medically assisted reproduction. In last minutes of 2022, the Diet came up with some revisions on the law of parentage.^[6]

First, it removed the mandatory waiting period stipulated in s.733 that only applied to women, that women must wait for 100 days after divorce to get remarried. The municipal government office can therefore now accept marriage applications without waiting for 100 days after divorce (s.740). Now a divorced woman can get remarried right after divorce, as was always the case for men.

Second, it revised the presumption of paternity for a child. Now, a child conceived by a wife during marriage is presumed to be a child of a husband of that marriage (s.772 (1)). When a child was conceived by a woman before marriage and was born after the formation of marriage, similarly a child would be presumed to be a child of a husband of that marriage.

For the purpose of the preceding subsection, a child born within 200 days after the formation of marriage, is presumed to be conceived before the marriage, and a child born 200 days after the formation of marriage and a child born within 300 days from the dissolution or cancelation of marriage should be presumed to be conceived during marriage (s.772(2)).

For the purpose of subsection 1, when a woman was married more than twice between the time of conception and a birth of a child, then the child is presumed to be a child of the husband of the most recent marriage before birth (s.772(3)).

When the child stipulated in the preceding subsection 3 is denied legitimacy by a father according to s.774, the “most recent marriage” stipulated in that subsection should be read as “most recent marriage (except for the marriage between a husband who denied the legitimacy of the child according to s. 774)” (s.772(4)).

With respect to a child whose paternity is to be decided by s. 772, a husband and a child can deny the legitimacy of a child (s.774(1)). The right of the child to deny legitimacy can be exercised by a mother who has a parental right (s.774(2)). For the purpose of subsection 1, the mother can also deny legitimacy to a child, except when the exercise of that denial right is apparently harming the interests of the child (s.774(3)).

When a paternity is to be decided according to s. 772(3), the former husband other than the father of the child who was married with mother during the time of conception of the child and the time of birth can deny the legitimacy of the child, except when that exercise of that denial right apparently harms the interests of the child (s.774(4)).

When the former husband exercised the denial right according to the preceding subsection, the other husband to be stipulated according to s.772(4) instead of s.772(3) then cannot deny the paternity to a child despite s.774(1)(s. 774(5)).

The amendment will take effect on April 1, 2024.

All of these are important revisions on the law of parentage. But from the perspective of the constitutional right to be recognized as legal parent, still the revised Civil Code does not have any guiding principle. It does not respect the wish of the parents or the best interests of the child. Still the law of parentage in Japan is not based on solid constitutional foundation but is a patchwork as a result of accommodating the various interests of conflicting parties. Especially disappointing is the absence of any effort to update the law of parentage in the light of technological developments. Evidently, the update is not reflecting the development of medically assisted reproduction technology although an increasing number of patients choose to have a child using this technology.

4. Abortion Pill

In Japan, abortion is prohibited by the Criminal Code. As a result, the pregnant woman as well as the doctor who performed an abortion were criminal punished. Although there was no explicit exemption, several exceptions had been accepted because of the general defense provisions, including in a medical emergency to save the life of a pregnant woman.

Yet, the Mother’s Body Act allowed “artificial termination of pregnancy,” practically the same procedure as an abortion, under certain conditions. The procedure to artificially terminate the pregnancy at this point needed to be performed by designated doctors who had experience and were working in hospitals or clinics satisfying the hospitalization requirement.

It was only permissible on the text of the statute if the pregnancy would cause a threat to the life and health of the pregnant woman or if the pregnancy was caused by a rape. It was also necessary to obtain the consent of her husband. Therefore, on the face of the statute, legitimate reasons for asking for artificial termination of pregnancy were very limited similar to many countries in the world.

Yet, in reality, these requirements had been very loosely interpreted by practicing doctors and the artificial termination of pregnancy was virtually free from restriction in the early period of pregnancy, because the economic reason could be a legitimate ground to fear for a threat to life and health of the pregnant mother and the decision was utterly left to attending doctors. In most cases, designated doctors have been happy to accept the allegation of pregnant woman that the continued pregnancy and a childbirth will case a threat to her life or health. There was no need to corroborate her allegation and there was no review. Although the consent of the husband was required, the government had interpreted that this consent was not necessary when a pregnant woman is not married or when gaining consent from husband is very difficult. Moreover, there was no method to check the authenticity of the consent form submitted by a woman. Anyone can sign and there was no way to verify or check the reliability of a consent. As a result, when a pregnant woman came to ask for artificial termination of pregnancy with a consent form, then most doctors have been happy to provide one.

In my book, I argued that this huge discrepancy between the statute and reality is troublesome and the absence of the constitutional right of a woman to demand abortion/artificial termination of pregnancy is questionable.

Moreover, there was also a serious restriction on how to perform artificial termination of pregnancy: it needed to be performed surgically. In other words, the abortion pill was not approved by the government, and the doctors or patients could not use it, no matter how early in the pregnancy the termination was performed.

However, for the first time, the Ministry of Health, Welfare and Labor approved the abortion pill in 2023. It is a Mefeego Pack, a combination of mifepristone and misoprostol. As a result, now the medical termination of pregnancy has become possible from 2023.^[7] This was a huge blessing for pregnant women who want artificial termination of a pregnancy.

Yet, there are still significant hurdles left. First of all, the termination needs to be provided by designated doctors. It is still an artificial termination of pregnancy that needs to be justified under the Mother’s Body Protection Act. Second, it is only available for pregnant women within 63 days of pregnancy (9 weeks). Third, the pill needs to be administered in a hospital or clinic satisfying the hospitalization requirements and the patients who take a second dosage must be observed in such hospital or clinic (must be hospitalized or observed in the hospital) until the fetal sac is discharged. In other words, online prescription is not allowed. The government kept these requirements as a result of the fear of possible complications. Therefore, any personal import by the patients is not allowed and pharmacies or drug stores cannot offer it.

The government might reconsider some of these requirements in the future if practical evidence demonstrates that fears of complications are unfounded. Yet, for now, the availability of a medical abortion pill is still only a small piece good news for pregnant women who want to have an abortion/artificial termination of pregnancy.

5. Further Decline in the Child Birthrate

In 2022, the number of the child born in Japan further dropped to 770,747^[8] and the total fertility rate (TFR) for women dropped to 1.26, further decrease from 1.3 in 2021, 1.33 in 2020, and 1.36 in 2019.^[9] The total population of Japan as of June 1, 2023, is estimated at 124,520,000, a further drop from 124,752,000 in January, 2023.^[10] It was a loss of 570,000 people from June of the previous year.^[11] This further decline has made the necessity of increasing birth rates as the most urgent national agenda for the government. Prime Minister Kishida now emphasizes the necessity of taking measures “totally in a different dimension” to promote the childbirth.^[12] Although many are doubtful of any possibility of success, it is imperative to adopt more definitive and strong measures to welcome and support childbirth while keeping in mind the basic principle of sexual autonomy as a constitutional command.^[13]

Conclusion

We are living in a rapidly changing world. Sex and sexuality definitely bring up issues and call for significant changes to the current status quo in Japan and beyond. Although none of these changes affect my overall conclusion and main arguments in my original work, it is still better to have a knowledge of these changes after the publication of my book. I will try to keep updates if there are any significant changes in the future.

^[1] Shigenori Matsui, Sex, Sexuality and the Constitution (Vancouver, UBC Press 2023).

^[2] Seiteki shikō oyobi gender identity no tayousei ni kansuru kokumin no rikai no zoushin nikansuru hōritsu (Act to Promote Public Understanding toward Diversity based on Sexual Orientation and Gender Identity), law no. 68 of 2023, https://kanpou.npb.go.jp/20230623/20230623g00132/20230623g001320018f.html.

^[3] As a result, several competing bills were introduced into the Diet to offer alternative provisions. Yet, in the end, the ruling party decided to go ahead with the support of some opposition parties with the bill that was passed in the end.

^[4] Keihō oyobi keijisoshouhō no ichibu wo kaiseisuru hōritsu [Act to Amend Parts of the Criminal Code and the Code of Criminal Procedure], law no. 66 of 2023, https://www.moj.go.jp/content/001398501.pdf　.

^[5] Japanese Criminal Code distinguished between imprisonment with hard labor and confinement with no hard labor in the past, but this distinction is abolished in 2022, and both will be integrated into just “criminal confinement” without any hard labor from 2025.

^[6] Minpōtō no ichibu wo kaiseisuru hōritsu [Act to Amend Parts of the Civil Code], law no. 102 of 2022.

^[7] Ministry of Health, Labor and Welfare, Iwayuru keikō chuzetuyaku “mefeego pack” no tekisetsu shiyoutō nitsuite [On the Proper Use of Artificial Termination of Pregnancy Pill, called Mefeego Pack], https://www.mhlw.go.jp/stf/seisakunitsuite/bunya/kenkou_iryou/iyakuhin/topics/infertility_treatment_00001.html.

^[8] Ministry of Health, Labor and Welfare (MHLW), Jinkō doutai souran no nenji henka [Annual Change of Total Population] (2022), https://www.mhlw.go.jp/toukei/saikin/hw/jinkou/geppo/nengai22/dl/h1.pdf.

^[9] MHLW, Jinkō doutai souran (ritsu) no nenji suii [Annual Change of Population Change (Percentage), (2022), https://www.mhlw.go.jp/toukei/saikin/hw/jinkou/geppo/nengai22/dl/h2.pdf.

^[10] Soumushō toukeikyoku [Statistics Bureau], Jinko tōkei [Statistics on Population], https://www.stat.go.jp/data/jinsui/index.html.

^[11] Statistics Bureau, Jinkō suikei [Population Estimates] (June 1, 2023), https://www.stat.go.jp/data/jinsui/new.html.

^[12] Prime Minister’s Remark in the Press Conference (March 17, 2023), https://www.kantei.go.jp/jp/101_kishida/statement/2023/0317kaiken.html.

^[13] It is disappointing to note, however, the gender gap index ranking of Japan dropped nine positions at 125th out of 146 countries, according to a World Economic Forum report released in 2023. World Economic Forum, Global Gender Gap Report 2023, (June 2023), https://www3.weforum.org/docs/WEF_GGGR_2023.pdf, at 11. Evidently, the status of women in Japan has not improved and rather further deteriorated. Unfortunately, it is extremely hard to see any possibility of progress.

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Written By: Shigenori Matsui

Posted On: May 12, 2021

COVID-19 vaccination drive is ramping up everywhere. It is proven that the vaccination is the most effective measure to prevent the spread of infectious virus. In order to curtail the number of infections in the population, it is vital to vaccinate large majority of the public. However, as with any vaccinations, there is a risk of possible side effects, making it impossible to prevent a small percentage of people who receive the vaccination from developing side-effects and in rare cases, even dying.  In order to encourage people to get vaccinated, it is essential to alleviate concerns for any ramifications from serious side-effects. Japan has already established the government compensation system for the possible financial ramification to be caused by side effects from the vaccination.

The Japanese Vaccination Act[1] mandates the government offer vaccinations to the population in order to prevent the occurrence and spread of infectious diseases. The vaccination is divided into two categories:

1. Routine vaccination, which needs to be offered regularly on designated dates or periods.
2. Ad hoc vaccination, which can be offered depending upon the circumstances.

However, neither option is mandatory.

Japan used to have a mandatory vaccination system in place for certain listed infectious diseases, making it criminally punishable for any violation. However, concern of possible side-effects has forced the government to give up the idea of mandating the public to get a vaccine. The major vaccination is now offered under the Vaccination Act and is merely recommended: vaccination for category A infectious disease, most important vaccination, is strongly endorsed by the government, and the public are mandated to strive to get a vaccine. But there is no legal obligation to get vaccinated and no criminal punishment for a violator. Other vaccinations, that can be administered by doctors or hospitals are treated as regular medical services, and have a separate compensation system for such voluntary vaccinations under the separate statute.^[2]

Under the government compensation system, a person who suffered injury or a family who have lost a family member due to suspected side-effects of a government endorsed vaccination, can apply for  benefits to the municipal government. The application will be forwarded to the prefectural government and eventually to the Ministry of Health, Labour and Welfare (MHLW). Here the application will be reviewed by the Injury and Disability Finding Committee, by experts. If the Committee finds that the injury or disability was caused as a result of the vaccination, the Health Minister will decide to grant benefits to the persons who applied.  No fault requirement exists. The benefit is paid regardless of the negligence of the vaccine manufactures, vaccine givers or the government. The benefits to be granted include:

• Medical expenses
• Treatment and hospitalization expenses
• Support for parents whose children under the age of 18 are disabled
• Support for persons over the age of 18 who are disabled
• Benefit for surviving family that lost a family member as a result of the vaccination
• Funeral expenses
• Support for surviving family who were depended upon deceased as a result of vaccination or
• One-time support for surviving family other than those that was depended upon the deceased as a result of vaccination

The benefit amount to be paid is stipulated. This amount differs depending on whether the disease against which vaccination is offered is classified as category A or category B, and whether the vaccination is a routine vaccination or an ad hoc vaccination.[3]

The most common type of vaccination, is the routine vaccination for category A infectious disease, and will cover all medical expenses except for those covered by the mandatory public health insurance.  Treatment and hospitalization expenses start at 35,000JPY (390CAD) per month for the initial three days of treatment, and 35,000JPY per month for initial eight days of hospitalization. Any longer treatment or hospitalization will be covered at 37,000JPY (410CAD) per month. If a child under the age of 18 is disabled, the support benefit for parents is offered at 1,581,600JPY (17,600CAD) per year for a serious disability, and 12,66,000 JPY (14,100CAD) per year for a less serious disability as pension. The support for adults who are disabled will be paid at 5,056,800JPY (56,500CAD) per year for a serious disability, 4,045,200JPY (45,200CAD) per year for a moderate disability, and 3,034,800JPY (33,900CAD) per year for less serious disability as pension. One-time benefit for surviving family who have lost a family member will be paid at 44,200,000JPY (493,901CAD). Funeral expense is also covered up to 212,000JPY (2,300CAD). If any additional care is needed, an additional care benefit could be offered at 844,300JPY (9,400CAD) per year for a serious disability or 562,900JPY (6,290CAD) per year for less serious disability.

For those persons who suffered as a result of routine vaccination for category B infectious diseases, the amount of disability benefit and surviving family benefit is somewhat lower. It is 2,809,200JPY (31,300CAD) per year for those who were seriously disabled as a result of vaccination or 2,247,600JPY (25,100CAD) per year for those who were less seriously disabled. The amount of benefit for surviving family who have lost a member as a result of a vaccination is also different: one-time 7,372,800JPY (82,300CAD) for surviving family that was not depended upon the deceased or 2,457,600JPY (27,400CAD) per year for family that was depended upon the deceased up to ten years as a pension.

Therefore, if someone dies as a result of regular, common types of government endorsed vaccinations, the surviving family can receive 44,200,000JPY. This is higher than the amount of benefit to be awarded to family that lost a family member due to a traffic accident under the mandatory traffic accident insurance system (maximum of 30,000,000JPY or 334,200CAD).

The new coronavirus infection is treated as a category A disease. As a result, the compensation system just outlined above is available for persons who were injured or disabled or for family who lost a family member as a result of vaccination.[4] Of course, this kind of promise of compensation is not sufficient to persuade everyone to get a vaccine. There is a strong distrust of government, pharma industry, and hospitals over vaccination, prompted by the sensational mass media reports over side-effects. This is why the vaccination rate among Japanese population is always so low.[5] The Japanese government was slow in making arrangements to import COVID-19 vaccination to Japan, and as a result, as of May 6, 2021, the vaccinated people are less than 3% of total population.[6]  The Japanese government will face significant hurdles in the facilitation of the COVID-19 vaccination drive.

But Canada can learn an important lesson from the Japanese experience. Currently Canada does not have a vaccination compensation system like Japan. The Canadian government announced its plan to introduce the national no-fault vaccine injury compensation program in late 2020 amid COVID-19 pandemic and rushed to facilitate the vaccination program. However, so far it has not materialized yet.[7] It is definitely an appropriate time for the Canadian government and citizens to look around the world.

Footnotes:

[1] Yobosesshuhō [Vaccination Act]].

[2] Dokuritsu gyouseihojin iyakuhin iryō kiki sougo kikohō [Independent Administrative Organization Medicine and Medical Equipment General Administration Act].

[3] Class A infectious diseases include diphtheria, whooping cough, polio, measle, rubella, Japanese encephalitis, tetanus, tuberculosis, HPV, and other infectious diseases which are “stipulated by cabinet order as diseases against which vaccinations are especially deemed required in order to prevent the occurrence of infectious disease by infection and to prevent spreading or prevent the patients from getting seriously ill or capable of getting seriously ill.” Class B infectious diseases on the other hands include influenza and others infectious diseases that are “stipulated by cabinet order as diseases against which vaccinations are deemed especially required in order to prevent the patient from getting ill or from getting seriously ill, thus contributing to the prevention of pandemic.”  Routine vaccinations need to be offered to residents by the municipal government for the prevention of class A and stipulated class B infectious diseases and are provided for by cabinet order by designating a date or a period. Ad hoc vaccinations can be offered when necessary to prevent the spread of class A and class B infectious diseases stipulated by the MHLW regulation.

[4] Ministry of Health, Labour and Welfare, Shingata corona wakuchin Q&A [Q&A for Vaccination for New Coronavirus Infection], https://www.cov19-vaccine.mhlw.go.jp/qa/0003.html.

[5] Statista, Where Most People Are Skeptical about Vaccine Safety, https://www.statista.com/chart/18435/countries-with-most-vaccination-skeptics/ .

[6] Out World in Data, Coronavirus (COVID-19) Vaccinations: Japan, https://ourworldindata.org/covid-vaccinations?country=~JPN.

[7] Terry Murray, Canada’s long road to a vaccine injury compensation program, CMAJ (Feb 22, 2021), https://www.cmaj.ca/content/193/8/E294.

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Written By: Jeff Hicks and Max Norton

Assisted By: Joanne Xu and Yi Zhao

Posted: February 23, 2021

By mid-March, 2020, many Canadians had come to recognize the COVID-19 pandemic as a once-in-a-lifetime crisis that could cause permanent changes to their lives. Just as online classes immediately began to transform the experience of legal education, academics also shifted their attention to the enormity of the challenges brought by COVID. The Centre for Asian Legal Studies organized a COVID-19 Roundtable on March 5. In the ensuing months, faculty members and students together pursued multiple strands of research on COVID’s impact on law and governance in Asia.

You can find some examples of student research in this area at the CALS blog: topics ranged from changes in Canadian immigration policy, international competition and coordination in vaccine research, to novel uses of parliamentary power in China during pandemic times. Many of these research projects are still ongoing, and we would be very interested in feedbacks from readers of this newsletter.

One example that illustrates our research on governmental responses to COVID is a working paper jointly authored by Jeff Hicks, Max Norton (both  Ph.D. students at UBC’s Vancouver School of Economics (VSE), and Wei Cui (Allard law and CALS member). The paper, titled “How Well-Targeted Are Payroll Tax Cuts as a Response to COVID-19? Evidence from China,” studies the most substantial piece of economic policy that the Chinese government adopted in response to the COVID shock—a payroll tax holiday made available to almost all firms in the country. Not only is the policy important, a large and unique dataset we used to carry out the study also enabled us to make findings otherwise infeasible.

On February 20, 2020, China’s Ministry of Human Resources and Social Security (MOHRSS) announced that for the period between February and June, all businesses other than the largest (less than 1%) of firms were completely exempted from the obligation to make employer contributions to three components of China’s social insurance (SI) regime: pension, unemployment and injury. The remaining large businesses as well as private, non-business employers received a 50% reduction in contribution obligations for 3 months (February-April). In June, MOHRSS extended the exemption for the first group of firms to the end of 2020, and the 50% reduction for the second group firms to June.  Separately, on February 21, 2020, China’s Nation Healthcare Security Administration announced guidelines for mitigating employer contributions for medical insurance (MI)—the second largest component in China’s SI system after pension insurance. Under these guidelines, local jurisdictions may reduce employer MI contributions by up to 50%, for 5 months (February to June).

These tax holidays represent a response to COVID that is large both in aggregate terms and for each firm beneficiary. The government estimated that the foregone revenue to the nation’s pension systems alone exceeded CNY 576 billion by the end of June. The entire fiscal cost for 2020 could easily surpass CNY 1 trillion (CAD 200 billion)—which would be larger than the projected combined costs of the Canada Emergency Response Benefit and Canada Emergency Wage Subsidy programs. For many employers, the policies brought a tax cut that was more than 20% of the wages paid. At least at first glance, these policies should improve the cash flow and the probability of survival for businesses, support job retention, and even facilitate the hiring of new workers.

A distinctive feature of our study is the use of confidential taxpayer data from one large Chinese province. We use this data to simulate the impact of China’s 2020 payroll tax cuts, and this approach carries a critical advantage. Not only does China have no national SI regime, even China’s provinces do not have their own unified SI systems. Pension insurance is often pooled at the prefectural level, and MI may be pooled at even lower, county levels. This means that when provinces report their SI budgets to the national government, they are aggregating budget reports generated by cities, which in turn are aggregating budgetary reports by counties and other lower units. The more layers there are in this aggregation process, the more information is lost. In contrast, comprehensive firm-level data gives both researchers and policymakers a more detailed, ground-up view of the impact of changes in SI policies.

Our first finding is directly attributable to this data advantage. Our firm-level data covers both firms that participate in SI and those that do not.  We observe that as many as 54% of active firms—representing 24% of aggregate economic activity—do not participate in SI at all. Therefore, they stand to receive no government support from the 2020 tax cuts. Moreover, non-participation is far higher among small firms: only 22% of the smallest decile of firms make SI contributions compared to 78% of the top decile (see Figure 1). This means that the payroll tax cut would be unable to deliver benefits to a vast population of small firms that engage in informal labor practice (in the sense that they do not offer their employees SI benefits.)

Figure 1 SI Participation Is Very Low among Small Firms in China

Despite this fundamental limitation of the policy, we find several forces that push in the other direction and give rise to desirable targeting properties. The first has to do with the fact that small firms tend to be more labor-intensive than large firms: their wage bills represent a larger portion of their total costs. Consequently, a payroll tax cut delivers greater benefits to smaller firms relative to total costs. On average, firms that participate in SI receive benefits equal to 1.3% of annual business expenses. But among the lowest decile of firms that participate in SI, the subsidy rises to 14% of annual expenses. This is approximately 20% of cash holdings the median small firm has on hand.

A second force that improves targeting is the regressive tax structure of China’s SI scheme. When an employer pays SI premia with respect to an employee, the employee’s wage is assumed to be no lower than 60% of the local average wage. This floor on employer premia means that the effective tax rate of the premia is very high for low wage workers. Meanwhile, employers are assumed to pay wages no more than 300% of the local average wage, which means that hiring workers for higher wages generate no additional SI premium expense. By suspending this system, the payroll tax holiday delivers more benefits to firms that hire low-wage workers—which tend to be more affected by the COVID crisis.

These first two forces combine to allow China’s payroll tax cuts to deliver greater benefit (relative to business expenses), as can be seen in Figure 2. In fact, even when non-participating firms that receive no benefits at all are included (as represented by the grey line in Figure 2), the smallest firms receive on average greater benefits as a fraction of their total costs.

Finally, we find that many industries that are most negatively affected by COVID-19 also tend to be more labor-intensive. This pattern is illustrated by the hospitality, education, and culture and entertainment industries, and we verify it partly by drawing on results from a recent study conducted by researchers at Tsinghua University. For this reason, the SI tax cut also delivered a greater benefit (as a proportion of businesses’ operating costs) to industries that are more exposed to the economic downturn (see Figure 3).

Figure 2 Payroll Tax Cuts Deliver Greater Benefits to Small Firms on Average

Figure 3 The Payroll Tax Cut Delivered Greater Benefits to Vulnerable Industries

Students who participated in this research project included not only the two co-authors named above but also research assistants Joanne Xu and Yi Zhao who gathered important data and legal information. Indeed, without the effort of our talented students, many of the research projects would not be feasible. Your feedback on our research will thus not only constitute welcome advice to our faculty members but also especially contribute to our student training.

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Written By: Wei Cui

Posted on: February 22, 2021

On December 30, 2020, Chinese President Xi Jinping convened a meeting of one of the most important decision-making bodies currently in the Chinese Communist Party: the Central Committee for Comprehensively Deepening Reforms. Xi gave a strongly ideological speech: in summarizing a report that offered a comprehensive evaluation of the Party’s measures for “deepening comprehensive reforms” since 2013, he claimed “historical” and “revolutionary” accomplishments for his leadership. The meeting also approved a slate of new policy directives, covering many high-salience topics ranging from strengthening Party leadership in state-owned enterprises to building a green, low-carbon economy. Among the new directives approved was a document named “Opinions regarding Further Optimizing Tax Enforcement Methods.” This new edict about tax administration—a topic that normally does not grab media attention—was immediately lauded as the most newsworthy item in Chinese taxation in 2020.

With the world in turmoil, why is President Xi Jinping thinking about tax administration now? One might have tried to look for an answer in the Party edict itself. But like many other recently issued, top Party leadership decisions that are supposed to represent important policy recommendations—and be the subjects of diligent study by Party members—the December “Opinions” on optimizing tax administration are nowhere to be found. It is unclear that the document will ever come to the public light. Thus, even when senior government officials stress the importance of Xi’s new take on tax administration and elaborate its implications, they cannot reveal what exactly it says. Instead, they merely repeat the official media’s summary of the “Opinions.” According to this summary, Mr. Xi would like tax enforcement to be more “precise,” taxpayer services to be more “attentive,” and tax administration to be more “sincere and collaborative.” Compliance and taxpayer satisfaction should both substantially increase, while compliance and administrative costs “notably reduced.” Tax administration, according to Mr. Xi’s vision, should play a fundamental role in the country’s governance.

What does this all mean? We know that tax administration had in fact been on Xi’s mind for several years already: in March 2019, China’s State Tax Administration (STA) cited “important instructions and comments” from Xi on “optimizing tax enforcement,” in an internal document circulated to tax administrators around the country. Judging from the trajectory of Chinese tax policy in the last few years, two explanations about what motivates Mr. Xi are likely relevant.

First, a signature policy Mr. Xi has pursued is the delivery of big tax cuts to the Chinese economy. The tax cuts announced in the last few years are very wide-reaching—in Xi’s own terms, they are “inclusive”—and are available to both individuals and business taxpayers. Having decided on such an approach of reducing the private sector’s tax burden, it is understandable that China’s political leaders want to see results—in the forms of both economic growth and political popularity. And it is typical for leaders in China’s central government to see local governments and grassroots tax administrators as not completely reliable in implementing such policies. Unlike the central government, China’s local governments directly face budgetary pressures. They are thus perceived as potentially too interested in maximizing revenue to permit taxpayers to access the tax preferences announced by the central government. Tax administrators, in the meantime, naturally take greater pride in raising than in giving up revenue. In other words, Mr. Xi may fear a major principal-agent obstacle in the delivery of tax cuts. Bringing China’s tax administration under his firm discipline may seem to be a critical solution.

But a second explanation points to a different source of anxiety. During his reign so far, Mr. Xi has also championed major social spending programs. A widely-discussed project is the eradication of poverty by 2020. Pension and health insurance regimes that are funded by tax revenues instead of employer and employee contributions have also expanded. These large spending programs are crucial to Mr. Xi’s claim to legitimacy and his vision of a “well-off” society, but they are very costly. Sustaining these spending programs seems to be on a collision course with the goal of keeping tax cuts. The fiscal challenges that many local governments face seem so severe that there is evidence that the government has already begun to censor discussions of the topic. A few years ago, Mr. Xi’s main proposed solution appeared to be cutting waste within the government (most famously through anti-corruption campaigns). A newer solution now seems to be “precision” in tax administration: tax administrators should be able to offer tax cuts where they are required to, but also raise revenue when there is tax to be collected.

Is there room for such optimization in Chinese tax administration to achieve Mr. Xi’s wishes? My research in the last few years on Chinese tax administration—summarized in a book I am completing that will be published by Cambridge University Press—suggests that the prospect is not sanguine. There are several basic reasons for this conclusion. First, taxpayer services in China are already quite strong by international standards, and taxpayer satisfaction (based on official surveys) has been very high for many years. This is substantially the result of the fact that Chinese tax administration resources are distributed in a dense network of grassroots offices located in amazing proximity to taxpayers: one runs into tax offices in China more easily than one can find Canada Post offices in Canada. Consequently, Chinese taxpayers routinely rely on tax administrators to help them with tax compliance, leaving little to be done by accountants and tax return preparers. Chinese tax administrators have also rapidly adopted new technologies, such as smart phone apps, to facilitate taxpayer compliance in recent years.

Low compliance cost is not the only thing that reduces Chinese taxpayer complaints. Tax administrators also rarely impose penalties, removing a major source of antagonism in tax collection. Even when taxpayers are selected for audits, they are often given the chance to “self-inspect” first, and declare previously under-reported tax liabilities with no fines. Thus, at least by international standards, Chinese tax administrators already adopt a very “collaborative” approach to tax collection.

This is especially remarkable given that Chinese taxpayers are generally not perceived, even among themselves, as that compliant. Tax cheats are known to easily get away. Indeed, some scholars have produced evidence that tax incentives announced by the central government often do not perform well, because taxpayers are already successful at reducing taxes through evasion. That is to say, it may not be zealousness in tax collection, but the very tolerant approach taken towards non-compliance, that prevents the recent tax cuts from being more effective. There are thus reasons to think that if Chinese taxpayers complain—if the government believes that greater political popularity can be gained through tax cuts—it is not because taxpayers have been treated badly, but precisely because taxation is one thing that citizens are allowed to complain about.

Finally, precision in tax administration cannot simply be willed into being. A major cost of China’s decentralized tax administration is that it hinders specialization among frontline tax offices. Local tax administrators are asked to serve and monitor assigned taxpayers in comprehensive fashions, which makes it impossible for them to gain expertise on a subset of tasks. The STA has paid lip service to specialization for decades, with little to show for accomplishments. When tax administrators lack expertise, and when taxpayers invest little in compliance and rely instead on local tax administrators, it is unclear how compliance can avoid being a matter of just muddling through. Perhaps the government thinks that a path to precision lies in advances in information technology and more comprehensive databases, but this remains largely speculative.

China’s grassroots tax administrators will likely share these doubts about Xi’s new ideological explorations on tax administration as the foundation of governance. But they of course cannot express them. For the time being, the proposal to optimize tax administration will simply have to be repeated. Just as one can only pretend, without ever being sure, that some of the government officials eulogizing the proposal actually are lucky enough to have read the secret Party document, one is left to pretending that the proposal means something.

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Posted On: December 07, 2020

Written By: Wei Cui

The tax that citizens in many modern economies are most familiar with is probably the personal income tax (PIT). The salience of the PIT, compared to other major taxes such as the corporate income tax and value added tax, is often, but not always, matched by the PIT’s significance as a source of revenue. In Canada, PIT revenue represented 49% of total federal government revenues in 2017-2018. In many developing countries, however, the PIT is a much less important revenue source. There are two standard explanations for this. First, the PIT, since its adoption in industrialized countries in the early 20^th century, tends to generate the most revenue from the taxation of wage income. That is, most PIT revenue comes from employers’ withholding of the tax from paychecks written to employees. In many developing countries, however, the formal employment sector is small, and therefore the tax base of wages of formally employed workers may be too small to sustain the PIT.  Second, it is often believed that the PIT must possess certain features—e.g. there must be progressive tax rates, certain types of deductions must be allowed, etc.—that make the tax administratively complex. Low administrative capacities in developing countries further handicap them in raising revenue through the PIT.

These standard explanations, however, are pretty much irrelevant for developments in China’s PIT in the last 25 years. China’s PIT revenue rapidly rose from 1994 to 2005 as percentages of total tax revenue and of GDP. But as the following figure from a 2017 paper by Professors Rong Li and Guangrong Ma at Renmin University shows, the PIT languished after 2006, at around 6% of total tax revenue and 1% of GDP. The trend since 2006 clearly bears no relationship to the rising income of the Chinese people or the maturity of Chinese tax administration.

China’s PIT revenue relative to total tax revenue and GDP (from Li and Ma 2017)

Instead, it all has to do with relentless—and highly successful—attacks on the PIT waged by China’s urban affluent class, attacks that China’s senior political leadership not only condoned but even embraced.

An essential strategy in these assaults is the thorough obfuscation of basic facts about the distribution of income in China, such as who is rich enough to be subject to tax. And this strategy is extraordinarily effective, partly because one of its most pernicious consequences is the destruction of the government’s ability to collect information about individual income. Because the PIT generates so little revenue, most tax agencies in China cannot afford to invest in auditing individual taxpayers and compiling databases about them. Therefore, even the government itself has little information about individuals’ income. Researchers studying income inequality in China thus have to rely on infrequent household surveys the government organizes, which in developed countries are generally considered less accurate (and less rich) than tax return data. (Impoverished data also makes it much harder for the painstaking work of researchers to gain academic prominence.)

Against this background, some recent analyses done by Chinese economists on the redistribution effects of China’s PIT are highly informative. The paper by Professors Li and Ma cited above used data from household surveys to simulate the impact of several increases in the monthly exemption amount for wage income that happened in 2006, 2008 and 2011. Another recent paper by researchers at Beijing Normal University (Zhan et al 2019) simulated the impact of the 2011 increase in the monthly exemption amount, as well as the consequences of even more dramatic changes in the PIT brought about by 2018 legislation. A few helpful figures from these two papers convey some basic facts about PIT changes since 2006.

One such fact is what one could almost simply call the demolition of the PIT. The monthly exemption amount for wage income was raised from CNY 800 to CNY 1,600 in 2006, and just two years later, to CNY 2,000. In 2011, this exemption amount was raised to CNY 3,500. That is, within just 5 years, the exemption level was increased by 337%. The following figure from Zhan et al 2019 shows the tax structure of the 2011 PIT on wage income against the background of the distribution of wage income in urban households.

The 2011 PIT and the Urban Wage Income Distribution

The three bell-shaped curves represent the distribution of monthly wage income in 2007, 2013, and 2018, respectively. Note that the data is based on surveys of urban households—the urban population being less than 50% of the total population in 2007 and less than 60% in 2018. That is, we are already looking at the richer half of the Chinese population. In 2007, the median wage income (somewhat to the right of the peak of the solid curve) was below CNY20,000, and most likely below the CNY 19,200 that corresponded to the CNY 1,600 monthly exemption applicable that year. In 2013, the median wage income is clearly to the left of CNY 42,000—the annual amount exempted under the 2011 PIT change—which is indicated by the first vertical bar from the left. In other words, at least half of the urban working population would have paid zero PIT on their wages in 2007 and 2011.

The second to fourth vertical bars from the left in the above figure indicate certain brackets in the 2011 PIT’s progressive rates on wage income. The second bar indicates the end of a 3% rate and the start of a 10% rate. The third bar indicates the start of a 20% rate. And the 4^th indicates the start of a 25% rate. (Three higher marginal rates, 30%, 35%, and 45%, are not shown because they apply to income levels outside the range of the horizontal axis, i.e. to proportionally very few people.) It is clear that even in 2018, a vanishing portion of urban employees would have faced a marginal tax rate of 25% under progressive rates set in 2011.

But this was not good enough for the urban affluent in China. In 2018, China raised the monthly exemption further to CNY 5,000, corresponding to an annual amount of CNY 60,000. It also further moved up the rate brackets, so that one has to earn CNY 204,000 a year to face even a 20% marginal tax rate. This is illustrated by the next figure from Zhan et al 2019 (the three vertical bars represent the start of the 3%, 10% and 20% marginal tax rates).

The 2018 PIT and the Urban Wage Income Distribution

What the last two figures clearly illustrate is that, since 2008, China has been very busy cutting the PIT for the highest 10% or 5% of wage earners in the country. This has led to a dramatic reduction in the redistributive effect of the Chinese PIT. That effect was already very small to begin with. In an earlier paper in Chinese, Professors Guangrong Ma and Shi Li (along with a co-author) calculated that in 2007, the Chinese PIT had the most redistributive impact in its history, reducing China’s Gini coefficient by 1.25%. This was far smaller compared to advanced economies: Canada’s PIT, for example, reduces the Gini coefficient by about 4%.  However, had the Chinese PIT been left intact after 2006, an increasing portion of the high urban wage earners would have become subject to the PIT, which would have increased the amount of redistribution in the entire population. The 2011 and 2018 tax cuts trounced this expectation. As the figure below from Zhan et al 2019 shows, the 2018 legislation sets back the PIT enough that its redistributive effect would not recover to 2017 levels even by 2025.

Even this is not the end of the story. On top of the generous exemptions and wide rate brackets, the 2018 PIT legislation introduced “additional special deductions” for high-income households, such as the mortgage interest expense deduction and deductions for children’s education. Indeed, Chinese families can send children to study in Canada and claim a PIT deduction for a portion of the expense. Zhan et al 2019 calculate that these special deductions may further remove 5% of the urban wage-earning population outside of the PIT tax base.

Unfortunately, this is a story currently buried in obscure academic journals. If you ask someone from China, that person is more likely than not to tell you that the PIT is high in China. This is first because the individuals from China one meets in North America are likely to be high-wage earners. It is also because even if that person may actually pay no or very little PIT in China, the Chinese news outlets she reads will have repeated falsehoods about the PIT for years. According to Chinese media targeted at the white-collar class, the low PIT rates in Hong Kong and Singapore are the international norm, and China needs to cuts its top marginal tax rates to 20% to be “internationally competitive.” The government’s lack of information and the white-collar media’s determination to disseminate mis-information generate a vicious circle. The work of inequality scholars is bound to be marginalized.

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Written By: Wei Cui

Posted On: October 02, 2020

My post last week described a recent study of how information-sharing among South African government agencies succeeded to improve taxpayer registration. Such information-sharing involves minimal costs, and when, as in the South African case, no additional action on the part of taxpayers is required, mechanically raises the level of taxpayer registration. This technique for bringing more firms into the “tax net” is well-known and adopted in many countries. Indeed, one might ask why the technique is not used more often. Another interesting—and related—question is whether picking such low-hanging fruits actually gains anything for the government. If it does not (the South African registration success did not raise any significant revenue, at least as far as the corporate income tax is concerned), we have a potential explanation for its non-adoption.

I also reported that even in the late 1990s, when China was still a low (or lower-middle) income country, Chinese tax agencies sought out information from local Industry and Commerce Bureaus (ICBs) about firms that need to be registered for tax purposes. Consequently, in 2000, 97% of the firms newly registered with ICBs also got registered by tax agencies. In fact, the two government agencies that all Chinese businesses had to cope with from the beginning of their operations were tax agencies and ICBs. Since the main task of ICBs was business registration, whereas tax bureaus also engaged in tax collection, it makes sense that the ICB had an advantage in registration, and tax agencies benefitted from information shared by ICBs (and not so much the other way around).

But information sharing is only secondary: some government agency must possess the information in the first place. In China, both tax bureaus and ICBs engaged in ceaseless enforcement. As a result, although “operating without a business license” (无照经营) was a phenomenon widely talked about in the 1980s and early 1990s, it is rarely mentioned nowadays. (Economists seem to be late in coming to recognize that enforcement makes the biggest difference to business registration in developing countries: such conclusion is perfectly consistent with the Chinese experience.)

But it turns out that taxpayer registration is not the only thing that can dramatically improve because of strong enforcement. In an illustrative table from the China Tax Inspection Yearbook that I excerpted in part in the last post, the government also reports the rates at which Chinese taxpayers filed tax returns, relative to the number of taxpayers required by law to file such returns. The table excerpted below is a continuation of the same table I displayed in the last post.  It shows that the average rate of timely return filing was an incredible 95.75% (96.6% for legal entities and 95.4% for sole proprietors) in 2000. This reflect the underlying statistic that out of over 50 million (!) taxpayers required to file tax returns, over 48 million did so.

Some readers may feel skeptical about these numbers. In the South African study, the estimated rate of return filing for taxpayers subjected to “forced registration” was less than 10%, and the average rate of return filing among registered taxpayers was less than 30%. Even in Canada, the rate of timely filing of corporate income tax returns was only 86-87% between 2002 and 2007. Can we really trust these Chinese statistics? (A similar question is certainly being raised about the reported number of COVID cases in China these days, although some rigorous studies already address such skepticism.)

A paper published last year in the American Economic Journal: Economic Policy is relevant to answering this question about the credibility of Chinese return filing statistics. In the paper, Anne Brockmeyer at the World Bank and her co-authors studied the effectiveness of the Costa Rica tax authority’s efforts to improve the rate of return filing by sending email reminders to taxpayers. The study is based on a careful randomized controlled trial and contains many interesting details, but since it has already been summarized in several places (see this and this blog), I will only comment on three aspects of it that are relevant for understanding the Chinese case.

First, Brockmeyer et al 2019 finds a rough correlation between GDP per capita and the rate of return filing. Costa Rica’s GDP per capita is actually a bit higher than both China’s and South Africa’s, but its rates of return filing (for income and sales taxes)—at over 80%— are much higher than South Africa’s and closer to China’s. Among initial non-filers, the email reminders from the Costa Rican tax authority increased the ultimate filing rate to over 30%. So, suppose that all non-filers receive email reminders: the Costa Rican tax filing rate could then become as high as 86%—similar to Canada’s. In other words, starting from an already high level of  voluntary return-filing, simple email remainders substantially increased the rate of filing even further.

This suggests that we are again looking at an instance of low-hanging fruits: it may not be that hard to increase the return filing rate, if tax authorities made the effort. To me, this also gives the Chinese statistics some credibility. As can be seen in the table excerpted above, Chinese provincial tax agencies are actually evaluated according to the return-filing metric, so it would not be surprising that much effort went into raising performance along this dimension.

Second, while email reminders sound very civilized (and proved effective), the Costa Rican tax authority as depicted by Brockmeyer et al 2019 comes across as toughies, and indeed rather heavy-handed. For example, the tax authority subjected a significant share of the taxpayers that did not file returns (including those that did not respond to email reminders) to “follow-up activities:” cases were assigned to individual tax officers for phone calls, audits, enforcement procedure, and even temporary closures. Clearly, greater-than-80% return-filing was not good enough for the government. As another example, to prevent deregistration of active firms, all non-filers that request deregistration have to be visited by a tax official.

Moreover, the “list of taxpayers in arrears is usually published online.” Overall, 9 percent of taxpayers in Costa Rica report having been subject to some kind of “control activity” by the tax authority during a 1-year period. All this comes on top of the fact that state institutions and credit card companies are required to withhold 2-6% from transactional amounts as “advance payments of tax”—whether or not there is any true tax liability. Costa Rican taxpayers are also required to engage in much more third-party information reporting than their counterparts in developed countries. All this raises the question: what is really doing the work here, the kid glove of email reminders or the iron fist behind it?

I find this interesting because in my research on Chinese taxation (which I present in a book to be published by Cambridge University Press), I find Chinese tax administrators also working seemingly much harder at tax collection than I believe the IRS in the US and CRA in Canada do. “Control activity,” a term that I have not previously seen before reading Brockmeyer et al 2019, is a pretty apt term for describing the mentality of Chinese tax administration.

This brings me to the third aspect of the Costa Rican study that struck me as remarkable. According to the authors, the tax-to-GDP ratio in Costa Rica is only 13.3% (in 2016). By contrast, Lediga et al 2020 reports that the South African tax-to-GDP ratio was 29% (in 2015). Which country has the greater state capacity, the one with a 25% rate of timely return filing and 29% gross tax ratio, or the one with an 80% rate of timely return filing but 13% gross tax ratio? Neither study considers this question. But it seems to me to be a really good question for researchers on tax and development to ponder.

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Written By: Wei Cui

Posted On: September 28, 2020

Earlier this month, in a widely-followed online public finance seminar series, the German economist Nadine Riedel presented a paper titled “What You Do (and What You Don’t) Get When Expanding the Net – Evidence from Forced Taxpayer Registrations in South Africa”. Notwithstanding the specific setting of Professor Riedel’s study, the topic is of wide relevance to low- and middle-income countries: how can the government locate and register more operating businesses for purposes of taxation—and what can the government expect when it succeeds in doing so?

In fact, the context of the study (which I will refer to as Lediga et al 2020, following the citation convention in economics) may bear greater affinity to Asia, where a large portion of countries are middle- or high-income, than to other countries on the African continent. South Africa is an upper-middle-income economy (like China, Indonesia, Malaysia and Thailand); its tax-to-GDP ratio is already high at 29%; and the South African Revenue Service (SARS) has a reputation of competence. Even in such a setting, getting businesses to register for tax purposes, which is a big part of moving firms from the informal sector to the formal sector, seems no easy task—or at least it is so traditionally thought.

Lediga et al 2020 studies two incidents—in 2008 and 2014—in which SARS enhanced tax registration simply by taking firm data from another government authority, South Africa’s Companies and Intellectual Property Commission (CIPC). Any business must register with CIPC to formally attain corporate status. Through this simple intra-governmental data sharing, SARS expanded its roster of taxpayers by 11% in 2008 and 8% in 2014.

Two facts are already notable here. First, around 10% of firms that formally register with one government authority fail to obtain a taxpayer ID as required by law, which seems to be a rather significant level of tax non-compliance. Second, all it takes for SARS to address such non-compliance is to obtain information from CIPC, and send out letters to the firms “registered by force” to remind them to commence tax compliance. The administrative costs for such SARS action are minimal. If tax registration is an important policy objective, then an obvious question is why SARS has not done this more often—and whether there are similar low-hanging fruits in other countries for enhancing taxpayer registration.

Lediga et al 2020 focuses on not this question but the consequences of forced tax registration. They remind us that for tax collectors to raise revenue, taxpayer compliance must increase along all of several distinct margins. Registering with the government is only a first step. The taxpayers must also file tax returns in accordance with law; they must report their tax liabilities truthfully on such returns; and they must end up actually paying what they owe. Because of this, even when taxpayers are successfully brought into the government’s registration “net,” no significant increase in revenue may result.

This may seem just commonsense. The theoretically interesting question, which Professor Riedel and her co-authors try to tackle, is how taxpayers’ tendencies to comply along these different stages/margins are correlated. For example, does increased compliance along the registration margin drive down compliance with truthful reporting, or vice versa? Lediga et al 2020 offers some intuitions about this question: if the likelihoods of getting caught for non-compliance in these different margins/stages of compliance are separate, then taxpayers may seek to cheat in the stage where it is easiest to do so. However, the model they construct does not yield determinate results.

As pure factual observations, the authors report that even for corporations voluntarily registering with SARS, only about 27.3% file an income tax return.  By expanding registration through intragovernmental data sharing, SARS probably ended up registering taxpayers that are even less likely to comply in the subsequent stages. Thus, compared to the 27.3% filing rate of firms voluntarily registering, only 8-10% of firms “registered by force” file corporate income tax returns.

The very low return-filing propensities of both voluntarily and forcedly registered South African corporations seem surprising. (During Professor Riedel’s presentation, some asked whether many of these corporations are exempt from filing returns because they owed no tax—the current version of the paper does not contain these institutional details.) But if we accept this fact of very low return-filing propensity, and if, further, we think that (i) increasing the rate of timely filing of tax returns is itself an important policy goal, and (ii) increasing the rate of registration can lower the rate of timely return filing, then we may even think that the rate of taxpayer registration in South Africa was too high: we may want to lower rate of registration if a higher rate of return filing is desirable.

This raises the basic question of how we should value the outcomes of registration, return-filing, timely payment, etc.: if they are not important in themselves, what are the ultimate policy objectives for which they represent merely means? Lediga et al 2020 seems ready to accept that raising tax revenue (in the short term) is the most important objective. Yet the authors mainly examine whether the newly registered firm paid significant amounts of corporate income tax. The answer is, as one might expect, No. The reason that this is an expected outcome is that in perhaps most countries, the median corporate taxpayer in terms of profitability is making either a negative profit (i.e. loss making) or only a small profit. The firms that fail to comply with the most basic legal requirements of tax authorities are likely all to fall below that median.

In any case, whether raising tax revenue in the short term is the most important policy objective is debatable. In a book on Chinese taxation that I am currently writing, I explore the issue of how to evaluate the various compliance outcomes of tax administration, and argue that there are some important but often-neglected institutional objectives. I will sketch some of these arguments in subsequent blog entries. But just to give a hint of the relevance of the Chinese case: Chinese tax administrators have long relied on intra-governmental data sharing for taxpayer registration. Indeed, their performance is evaluated on how many taxpayers already registered with the Industry and Commerce Administration (to which the CIPC sounds like the South African counterpart) are registered for tax purposes. And back in 2000, when China’s GDP per capita was not much higher than the GDP per capita of Sub-Saharan Africa (and comparable to the GDP per capita of Tanzania and Uganda today), the national average rate of taxpayer registration—relative to registration with the Industry and Commerce Administration—was 97%!

This is shown in the first 12 columns of the following table from the Tax Inspection Yearbook 2002:

I will also further comment on this table in subsequent blog entries. But the overall takeaway from the Chinese case is that there is no mystery to getting taxpayers registered: it can be done. The main question is what the benefits and costs are for doing so, and what actually motivate states to do so.

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