Japan: New Momentum to Reform Transgender Law

Transgender people in Japan face continuing barriers to changing their legally recognised gender, Human Rights Watch said in a report released yesterday.The Japanese government should heed increasing calls from activists and experts to revise its abusive and outdated transgender recognition law.

The 55-page report, «The Law Undermines Dignity’: Momentum to Revise Japan’s Legal Gender Recognition Process», documents the persistent barriers transgender people face in Japan under the Gender Identity Disorder (GID) Special Cases Act. The procedure for changing one’s legally recognised gender, which requires sterilisation surgery and an outdated psychiatric diagnosis, is anachronistic, harmful, and discriminatory. Many transgender people in Japan and domestic medical, legal, and academic experts, as well as international health and human rights bodies, have said that the law should be substantially revised.

«Transgender people are courageously speaking out against Japan’s abusive and discriminatory transgender law, and increasingly gaining support from experts in medicine, law, and academia», said Kanae Doi, Japan director at Human Rights Watch. «Tokyo officials should embrace public opinion and local-level policies and update the law to reflect current medical and legal perspectives».

The current law has five requirements for a transgender person to be legally recognised according to their gender identity. They must be: at least 20 years old; unmarried; not have any children under age 20; not have gonads or permanently lack functioning gonads; and have a physical form that is «endowed with genitalia that closely resemble the physical form of an alternative gender».

Each of these requirements contravenes Japan’s international human rights obligations, and is opposed by the World Health Organisation (WHO) and other medical expert bodies. The medical requirements in particular underpin widespread prejudice against transgender people. The diagnosis requirement rests on an outdated and pejorative notion that a transgender identity is a «mental disorder» and the surgery requirements force transgender people who want legal recognition to undergo lengthy, expensive, invasive, and irreversible medical procedures. Forcing people to divorce and not allowing those under 20 to change their legal gender is discriminatory.

Itsuki Dohi, a transgender woman and teacher in Kyoto, told Human Rights Watch: «The five requirements of the GID Law all narrow down the life choices that transgender people have. This undermines our dignity». Miho Mitsunari, a professor at Nara Women’s University, said: «The five requirements are based on the idea of changing transgender people’s sex from ‘deviations’ to ‘normal.’ It promotes prejudice against transgender people who cannot, or do not want to, change their body.”

This is the third report by Human Rights Watch since 2016 addressing transgender issues in Japan. The 2016 and 2019 reports documented the stories of transgender people who described their struggles to fit into rigid school systems designed around strict gender binaries, to seek and obtain employment, to access health care, and to raise families in accordance with their basic rights.

Japan’s GID Special Cases Act was drafted in 2003 and came into force in 2004. For that era, it is not unique. Other legal regimes around the world from that period contain similar discriminatory and abusive provisions. Legislatures, domestic courts, and regional human rights courts and bodies have in recent years found that such requirements violate international human rights law. Governments around the world have removed sterilisation requirements, or drafted laws without surgery requirements at all. Some countries, such as Sweden and the Netherlands, have recognised compulsory sterilisations of transgender people that took place in the past as rights violations, and compensated survivors.

Medical expert bodies have similarly urged governments to remove medical requirements from legal gender recognition procedures. In 2019 the WHO, in its revised International Classification of Diseases, removed «transsexualism» as a «mental disorder». Reacting to the changes, the prominent Japanese transgender activist Fumino Sugiyama wrote: «The WHO says I don’t have a mental disorder, but in Japan my government says I do». Sugiyama, who co-chairs Tokyo Rainbow Pride, the annual festival, said: «I underwent a mastectomy in 2009 because I wanted the surgery to affirm my identity and shape how my body felt. But like many other trans people I know, I don’t want to be sterilised».

Over time, an increasing number of trans people in Japan have taken the legally prescribed steps and changed their legal gender. In 2019, 948 people were approved for legal gender change, but activists have said the law limits the number of people who are willing to undergo the full procedure.

«The five requirements in Japan’s legal gender recognition law need to become a thing of the past», Doi said. «Japan’s government should urgently turn to revising the law».