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Case No. 993 of 2020 (ku) Special Appeal against Decision to Dismiss Appeal against
Ruling of Dismissal of Petition for Change in Recognition of Gender Status
Act on Special Cases in Handling Gender Status for Persons with Gender Identity
DisorderOctober 25, 2023 Grand Bench Decision
Main text of Judgment
The original decision is reversed.
The case is remanded to the Hiroshima High Court.

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Reasons
Reasons for the appeal as presented by Masafumi Yoshida and Kazuyuki Minami,
counsel to appellant
Part 1
Summary of the case
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1.

In this case, the appellant, whose biological gender is male but self-identifies as
female, applied for a ruling of a change in recognition of gender status based on
Article 3 (1) of the Act on Special Cases in Handling Gender Status for Persons
with Gender Identity Disorder (hereinafter, the “Act”).

2.

Article 2 of the Act defines [a person having gender identity disorder as a person]
whose biological gender is evident, but who holds a persistent conviction underwhich they self-identify themselves as being of the opposite gender, and who has
the intention of physically and socially conforming with the opposite gender, andhas received concurrent diagnoses on such identification from two or more
physicians equipped with the necessary knowledge and experience to give accurate
diagnoses on this matter, based on generally accepted medical knowledge(hereinafter the “person with gender identity disorder”). Article 3(1) of the Act
provides that a family court may make a ruling for a change in the recognition of
the gender status of a person (hereinafter, a “Gender Status Change Ruling”) fora person with gender identity disorder who satisfies all of the conditions set forth
therein.
Furthermore, Article 3(1) Item 4 of the Act (hereinafter, the “Provision”) stipulates
that “[such person] has no reproductive glands or whose reproductive glands havepermanently lost function.” In order to satisfy the conditions of the Provision, a1

person must undergo a gonadectomy (removal of the testicles or ovaries, which areinternal genital organs), unless there has been a permanent loss of overall gonadal
function due to administration of anticancer drugs or for other reasons. According
to the facts established at the Prior Instance, the appellant has not undergone a
gonadectomy, and there is no indication that the appellant has suffered permanent
loss of gonadal function.

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3.

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Furthermore, the Prior Instance did not take a view on the appellant's argument thatthe appellant satisfies Article 3(1) Item 5 of the Act (hereinafter, “Item 5”')stipulating that [such person] “has a body which appears to have parts that resemble
the genital organs of those of the opposite gender,” and that if that argument fails,
whether in the alternative Item 5 violates Articles 13 and 14(1) of the Constitution.

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4.

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The Prior Instance ruled and confirmed that the appellant is a person with gender
identity disorder that satisfies Article 3(1) Items 1 to 3 of the Act, but does notsatisfy the Provision. The Provision is based on considerations including thepossibility of causing societal confusion if a person who has received a Gender
Status Change Ruling were to have a child using their original reproductivefunctions. The Prior Instance ruled that the petition should be dismissed, as themanner of restrictions posed by the Provision is reasonable and does not violate
Article 13 and Article 14(1) of the Constitution.

The argument here is that the Provision violates Articles 13 and 14(1) of theConstitution and is therefore invalid.
Part 2

Constitutionality of the Provision with Article 13

1.

A summary of the facts related to this case is as follows.

(1)

Gender identity disorder
Gender identity disorder is a condition where a person’s biological gender and selfidentified gender do not align and the person requires medical treatment. Today, it
is understood that one’s self-identified gender cannot be influenced by one’s will.
As such, medical treatments aimed at aligning one’s self-identified gender with
one’s biological gender are no longer performed. Psychiatric and physicaltreatments are carried out to assist persons with gender identity disorder to adapt
to society and improve their quality of life.

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For persons with gender identity disorder, even if they undergo treatment and begin
to live according to their gender identity, their gender as listed on the family register(hereinafter, one’s “legal gender”), which is used as the basis for the application oflaws and regulations [to them], is their biological gender. This incongruity is said
to cause social disadvantages, such as by compelling them to reveal their gender
identity disorder in employment and other settings, or by not being treated inaccordance with their gender identity by society.

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(2)

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Legislative background of the Act’s enactment
a. As stated above, treatment is performed on persons with gender identity
disorder with the aim of improving their quality of life. When the Act wasenacted in July 2003, treatment was based on the concept of staged treatment,in accordance with the second edition of the “Guidelines for Diagnosis andTreatment of Gender Identity Disorder” (hereinafter, the “Guidelines”)
established by the Japanese Society of Psychiatry and Neurology. In principle,
staged treatment consisted of three stages: psychiatric treatment such as formental health support in the first stage, followed by physical treatment (e.g.,
hormone therapy or mastectomy) in the second stage, and gender-affirming
surgery in the third stage (e.g., gonadectomy, external genital removal surgery,or genital reconfiguration surgery). Gender-affirming surgery was considered
the final stage of treatment for people who continued to feel very uncomfortableor repulsed by the physical characteristics of their biological gender and who
were experiencing difficulties in their lives. It should be noted that first andsecond stage treatments do not necessarily need to be completed when one
moves to subsequent treatment stages. The staged treatments can beadministered concurrently. For instance, psychiatric treatments and hormone
therapy often continue even after the third stage.
Furthermore, the second edition of the Guidelines highlighted that persons withgender identity disorder who have completed the third stage of treatment might
encounter significant societal challenges if their legal gender remains
unchanged.

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b. When considering the reasons articulated at the time when the draft bill was
submitted for discussion at the National Diet, the Act was based on theunderstanding that gender identity disorder is a medical illness listed in the 10th3

revised edition of the International Classification of Diseases (ICD) developedby the World Health Organization. [The legislature] also recognized that those
persons with gender identity disorder who had received medically necessary
treatment by reaching the third stage of the staged treatment process and who
were leading their lives in accordance with their gender identity, still faced
various issues due to their legal gender remaining the same as their biologicalgender. Considering this, the Act was enacted to enable those persons to betreated in accordance with their gender identity, to increase the effectiveness oftreatment and to eliminate social disadvantages, where certain requirements are
met.

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c. Based on discussions at the drafting stage, the Act contains a supplementaryprovision that requires the scope of persons with gender identity disorder who
may be granted a Gender Status Change Ruling should be reviewed anddiscussed, and [the government should] take necessary measures based on the
results of the review and discussions, which take into consideration matters suchas the status of the enforcement of the Act and changes in societal views towards
persons with gender identity disorder, among others.

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In addition, Article 3(1) Item 3 of the Act stipulates its applicability only topersons who “currently [have] no children” at the time when the Act wasenacted, but this language was revised by Law No. 70 of 2008 (hereinafter, the“2008 Amendment”) to persons who “currently [have] no minor children.”
(3)

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Progress in medical knowledge regarding gender identity disordera. At the time of the Act’s enactment, medical treatment of gender identity disorder
was based on the concept of staged treatment. However, the Guidelines were
subsequently revised following clinical experiences. The third edition of the
Guidelines, published in January 2006, relinquished the concept of staged
treatment, because it was found that symptoms varied among persons withgender identity disorder, and that the necessary physical treatment also varied
from patient to patient. Specifically, while it was agreed that psychiatrictreatment should be the first treatment recourse for persons with gender identity
disorder, the Guidelines were revised such that if the patient required physicaltreatment, any or all of hormone therapy, mastectomy, gonadectomy, external
genital removal surgery, or genital reconfiguration surgery could be utilized in4any order.
b. In the 10th revised edition of the ICD, gender identity disorder was classified
among “mental and behavioral disorders.” Later, it was clarified thatclassification as a “disorder” was inappropriate. Therefore, in the 11th revised
version of the ICD, approved in May 2019, gender identity disorder was defined
as a “condition related to sexual health.” Accordingly, the term was changed
from “gender identity disorder” to “gender incongruence.”

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(4)

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Social conditions surrounding persons with gender identity disorder
Since the enforcement of the Act in July 2004, more than 10,000 people havereceived a Gender Status Change Ruling.
From 2004 onward, the Ministry of Justice has carried out human rights awarenessactivities with the aim of eliminating prejudice based on gender identity disorder.
Since 2010, the Ministry of Education, Culture, Sports, Science and Technology
has issued notices requesting that each local board of education ensure thatappropriate measures are taken with due consideration to the feelings of students
with gender identity disorder, and has created and distributed manuals for teachersand staff. In 2016, the Ministry of Health, Labour and Welfare also implemented
initiatives requesting that employers not include sexual minority status as adisqualifying factor in hiring selection criteria when recruiting workers. In June
2023, the “Act on Promoting Public Understanding of Diversity in Sexual
Orientation and Gender Identity” was enacted with the aim of contributing to therealization of a society that is tolerant of diversity in sexual orientation and gender
identity. In addition, the ordinances of a considerable number of local governments,
starting with Bunkyo Ward, Tokyo in 2013, now include a provision prohibiting
discriminatory treatment based on gender identity and other human rights
violations based on gender. Furthermore, in 2017, the Japan Business Federation(Keidanren) released a statement providing that it is urgently necessary forcompanies to promote appropriate understanding of LGBT people, including
persons with gender identity disorder, and to make efforts to recognize them. In
addition, since 2020, some women’s universities have been accepting students
whose legal gender is male but whose self-identified gender is female.
At the time of the Act’s enactment, a majority of the countries which had
procedures in place for a person to change their legal gender status required such5

person to undergo sterilization. However, the World Health Organization and otherorganizations issued an interagency statement in 2014 opposing the requirement,
and the European Court of Human Rights declared in 2017 that such a requirement
violates the European Convention on Human Rights. As a result, the number ofcountries, mainly Western countries, that do not require sterilization [as aprerequisite for someone to change their legal gender status] has increased
considerably.

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2.

Based on the above, the Court will consider the constitutionality of the Provision inconnection with Article 13.

(1)

Article 13 of the Constitution provides that, “All people shall be respected as
individuals. Their right to life, liberty, and the pursuit of happiness shall, to theextent that it does not interfere with public welfare, be the supreme considerationin legislation and in other governmental affairs.” It is clear that the freedom not tohave one's body intruded against one's will (hereinafter, the “freedom from bodily
intrusion”) is protected under this article as an important right for living withpersonal dignity.
A gonadectomy is an operation to remove one’s testicles or ovaries and is a severe
intrusion of one's body that poses a risk to life or body with irreversible
consequences. Being forced to undergo a gonadectomy would constitute a serious
restriction on the freedom from bodily intrusion.
The Provision only provides as a prerequisite that persons with gender identity
disorder who wish to receive a Gender Status Change Ruling undergo a
gonadectomy, but does not directly force persons with gender identity disorder ingeneral to undergo such surgery. Put another way, however, the Provision requires
persons with gender identity disorder, who do not otherwise require a gonadectomy
as medical treatment, to undergo such surgery in order to obtain a Gender Status
Change Ruling.
On the other hand, it should be considered an important legal interest tied topersonal dignity that a person with gender identity disorder is treated under the
relevant legislation in accordance with that person's own gender identity. This isparticularly pertinent when considering that legal gender is treated as one of thebasic attributes of individuals in various situations in their lives and thecircumstances persons with gender identity disorder are facing (as described6

above). This does not vary depending on whether a person with gender identity
disorder requires a gonadectomy by way of medical treatment or not.
Accordingly, the Provision should be considered a restriction on the freedom frombodily intrusion as it becomes inevitable for persons with gender identity disorder
who do not require a gonadectomy for medical reasons, to undergo such surgery inorder for them to secure their important legal interest to be legally treated inaccordance with their gender identity. Even considering that this does not directly
force persons with gender identity disorder in general to have this surgery, such
restriction should not be allowed unless it is necessary and reasonable in light of
the importance of the freedom from bodily intrusion.

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In order to examine whether the Provision is constitutional as a necessary andreasonable restriction in light of Article 13 of the Constitution, it is necessary toweigh the degree of necessity of such restriction for the purpose of the Provision
against the substance and nature of the freedom to be restricted and actual mannerand degree of the restriction.

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(2)

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The purpose of the Provision is understood to be based on the following
considerations: a person subject to a Gender Status Change Ruling and able to havea child with the reproductive function of their assigned gender may cause parentchild relationship problems resulting in societal confusion, and to avoid suddenchanges in the long-standing distinction between men and women based on
biological gender.
However, persons with gender identity disorder are a minority in society, and there
is a considerable number among those seeking a Gender Status Change Ruling who
have undergone a gonadectomy to eliminate discomfort with the physicalcharacteristics of their biological gender. In addition, a number of people seem tobe reluctant to have children using their innate reproductive function. Considering
these points, even if the Provision were not in place, it would be extremely rare fora person who has received a Gender Status Change Ruling without undergoing a
gonadectomy to have a child, resulting in the claimed parent-child relationshipissues. Furthermore, among the aforementioned problems related to parent-childrelationship issues, whether a legal parent-child relationship is established or how
to record it in the family register can be resolved through the interpretation of laws
and regulations, together with legislative measures. If a person who has received a

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Gender Status Change Ruling has a child using the reproductive functions of theirassigned gender, a situation may arise in which there is a “female father” and “malemother.” However, the 2008 Amendment to the Act already allows the existence ofa "female father" or "male mother" when a person with gender identity disorder
who has an adult child was granted a Gender Status Change Ruling and this has
not caused any societal confusion regarding parent-child relationships. In addition,
approximately 19 years have passed since the Act’s enforcement, and more than
10,000 people have received a Gender Status Change Ruling to date, with the
public becoming more informed and with a better understanding of persons withgender identity disorder. Considering these factors and given that efforts are being
made in various areas of society to improve the environment to resolve societal
issues, the possibility of the above situation is unlikely to have an unexpected andacute impact on society as a whole.

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Based on the foregoing, the restrictions under the Provision which were considerednecessary at the time of the Act’s enactment are arguably less relevant due tochanges in the circumstances underlying the restrictions.

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(3)

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Next, the Court will examine the specific manner and degree of restriction imposedby the Provision, considering progress in medical knowledge since the Act’s
enactment.
The Act’s purpose was to enhance the effectiveness of treatment and to eliminatesocial disadvantages for people who have undergone the necessary treatment forgender identity disorder, but still face societal problems because their legal genderremains their biological gender. Gender-affirming surgery, including gonadectomy,
was positioned as the final stage in a staged treatment process at the time of the
Act’s enactment and the imposition of a requirement that a person seeking a Gender
Status Change Ruling had undergone a gonadectomy was of reasonable medical
relevance because it identified persons who had undergone the necessary treatment
for gender identity disorder. However, after the Act’s enactment, medical
knowledge of gender identity disorder has progressed, and the concept of staged
treatment is no longer utilized due to both general awareness of the diversity ofsymptoms exhibited by persons with gender identity disorder and the diversity oftreatment methods for these symptoms. As a result, since it now understood thatthe type of physical treatment required for persons with gender identity disorderdiffers depending on the patient, whether a person has undergone the necessary8treatment is no longer determined by having undergone gender-affirming surgery.
Accordingly, the requirement [for surgery] lacks rational medical relevance.

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Furthermore, with the development of medical knowledge as described above, therestriction on the freedom from bodily intrusion imposed by the Provision forces
persons with gender identity disorder who do not medically require a gonadectomy
to make a grave choice to either (i) give up their freedom from bodily intrusion andundergo a gonadectomy, which is a severe physical intrusion, or (ii) give up an
important legal interest to be legally treated according to their gender identity andabandon their Gender Status Change Ruling. In addition, imposing restrictions thatlack rational relevance from a medical standpoint to achieve the purpose of theProvision is an excessive restriction, considering that an increasing number ofcountries do not make the loss of reproductive capability a requirement forchanging one’s legal gender status.

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Accordingly, the Provision imposes excessive restrictions by forcing a choice
between the two options described above and, consequently, the degree ofrestriction imposed by the Provision should be considered significant.
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(4)

Based on the above, and considering that the necessity for restrictions on one’s
freedom from bodily intrusion under the Provision has diminished and because thedegree of the restriction has become significant, it cannot be considered necessary
and rational.
Accordingly, the Provision violates Article 13 of the Constitution.

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As such, the Supreme Court, Second Petty Bench Decision No. 269 of 2018,
January 23, 2018 which came to aa different conclusion, shall be revised
accordingly.
Part 3290

Conclusion

According to the above, the Provision violates Article 13 of the Constitution and isinvalid, and the Prior Instance's decision to dismiss the petition based on a different
opinion misinterpreted the Provision. There is a reason for this argument and there
is no need to judge the other grounds for appeal - the Court finds it inevitable torescind the original decision. The Court will then remand this case back to the Prior
Instance to further examine the appellant's argument regarding Item 5, which was

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not decided in the Prior Instance.
Consequently, besides the dissenting opinions of Justices Mamoru Miura, Koichi
Kusano, and Katsuya Uga, the decision is made as set forth in the main text of thejudgment, based on the unanimous opinion of all justices. There is also a concurring
opinion from Justice Masaaki Oka.

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Justice Masaaki Oka’s concurring opinion is as follows.
I agree with the majority opinion that the restrictions imposed by the Provision are
excessive at this point in time, and that the Provision violates Article 13 of theConstitution and is therefore invalid. I would like to provide a concurring opinion
regarding the response of the legislature following this decision.

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As this decision renders the Provision unconstitutional and invalid, we anticipate
that the legislature will rescind the Provision. Of course, it is possible to create a
new, less restrictive provision in order to achieve the purpose of the Provision or toamend the Act, including the other requirements thereof, after taking into accountthe impact that would arise from the removal of the Provision while balancing
society's general perception of persons with gender identity disorder who seek tochange their gender status, as long as any such amendment is constitutional.
When amending the Act in response to this decision, it is entirely within thelegislature’s discretion to exercise legislative policy in deciding whether to merely
delete the Provision or to create new conditions to replace it as described above.
However, the legislature is expected to exercise such legislative discretion in areasonable manner.
Justice Mamoru Miura’s dissenting opinion is as follows:
I agree with the majority opinion that the Provision violates Article 13 of theConstitution and is therefore invalid, but furthermore, since Item 5 also violates

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Article 13 and is also invalid, I believe that the original decision should be reversed,
the initial ruling [at the first instance] should be rescinded, and a decision should bemade to change the gender status of the appellant from male to female. The reasonsare explained below.

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1.

The Provision(1)

In the aforementioned Supreme Court Second Petty Bench Decision of January 23,
2019 (hereinafter, the “2019 Decision”) cited by the majority opinion, I agreed with
the Court's opinion that the Provision then did not violate Article 13 of theConstitution. However, as stated in the joint concurring opinion with Justice Kaoru
Onimaru, the Provision was already suspected of being unconstitutional at that
time.

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Furthermore, as stated in the 2019 Decision, the rationality of the Provision is
subject to change in response to changes in social circumstances regarding thetreatment of gender identity and the understanding of the family system. Therefore,
its constitutionality needs to be constantly examined, and at this point, it isnecessary to examine it considering subsequent circumstances [after the 2019
Decision].

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(2)
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Article 2 of the Act requires that the definition of a person with gender identity
disorder be based on a diagnosis in accordance with generally accepted medical
knowledge, and one of the requirements is the “intention to physically conformwith the Opposite Gender.” However, the Provision does not elaborate on the term
“physically” nor does it provide the degree to which the intention to adapt to theother gender must be present. It is understood that this point is left to interpretation
based on the above-mentioned medical knowledge, which evolves over time.

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Disease classification in Japan is generally based on the statistical classification of
diseases, injuries, and causes of death (currently Ministry of Internal Affairs andCommunications Notification No. 35 of February 13, 2015), which is a statisticalstandard (Article 2(9) and Article 28 of the Statistics Act), and which is further
based on the ICD by the World Health Organization.

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In the 10th revised edition of the ICD in effect at the time of the Act’s enactment,
gender identity disorder was classified as a mental illness. Among the detailed
classification for gender identity disorder, transsexualism was defined as “usuallyaccompanied by a sense of discomfort with, or inappropriateness of, one's
anatomical sex, and a wish to have surgery and hormonal treatment to make one's
body as congruent as possible with one's preferred sex.”

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The 11th revised edition of the ICD, which revised the 10th revised edition, was

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approved in May 2019 and went into effect in January 2022. In the 11th revised
edition, the term gender incongruence was adopted instead of gender identity
disorder and transsexualism, and it was classified as a condition related to sexual
health, which is different from mental illness. Within this subcategory, genderincongruence of adolescence and adulthood is characterized by a “marked andpersistent incongruence between an individual’s experienced gender and theassigned sex, which often leads to a desire to ‘transition,’ in order to live and be
accepted as a person of the experienced gender, through hormonal treatment,
surgery or other health care services to make the individual’s body align, as muchas desired and to the extent possible, with the experienced gender.”It is understood that recognition of the diversity of symptoms manifested by genderincongruence and its treatment methods in the 11th revised edition of the ICD is inline with the medical knowledge included in the American Psychiatric
Association’s DSM (Diagnostic and Statistical Manual of Mental Disorders), 5thedition (2013), as well as the guidelines for the diagnosis and treatment of gender
identity disorder in the Japanese Society of Psychiatry and Neurology's 4th edition
revised guidelines (4th edition in 2011, 4th edition revised in 2018).
According to such current general medical knowledge, symptoms such as
discomfort due to physical characteristics based on one's biological gender are
diverse and individual. “The intention of physically conforming with the Opposite
Gender” under Article 2 of the Act is understood to include a variety of intentions.
Some persons with gender identity disorder may not necessarily desire to conformto the other gender in terms of their internal and external genitalia, but rather may
wish to physically conform to the other gender in terms of secondary sexual
characteristics, such as breast enlargement, facial hair, and voice. This is clear fromthe diagnostic criteria of the 5th edition of the DSM., and the 11th revised editionof the ICD is also based on this understanding. Such an intention is understood to
be included in the meaning of “intention” in Article 2 based on generally accepted
medical knowledge, and for such persons, there is no need to undergo genderaffirming surgery, including a gonadectomy, as a medical treatment.
As stated in Part 2, Section 2(3) of the majority opinion, it is irrational to impose
the requirements of the Provision from a medical perspective based on medical
knowledge that has been developed and generalized under the 10th revised editionof the ICD and reflected in the internationally accepted 11th revision of the ICD,

12and in light of the interpretation of the definition of a person with gender identity
disorder that is based on the same.
(3)
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In recent years, the adoption of the so-called partnership system has expanded
dramatically among local governments. Although this system differs depending on
the local government, it is generally a system where two unmarried people can becertified as partners in daily life by submitting a sworn notification [of partnership].
The purpose is to reduce the social disadvantages for people who are consideredsexual minorities in terms of sexual orientation or gender identity, and to contributeto the formation of a society that respects their dignity and individuality. After
Shibuya and Setagaya Wards in Tokyo adopted this system in 2015, it spread toother local governments. At the time of the 2019 Decision, there were only about
10 municipalities which had adopted this system, but according to a survey doneby Shibuya Ward and several other entities, as of June 28, 2023, more than 320
local governments, including 14 prefectures including Tokyo and Osaka, haveestablished partnership systems, which cover more than 70% of the total populationof Japan.
Initially, the system was intended for two people of the same sex. However, it is
now becoming common [for local governments] to have a system that also applies
to two people of the opposite sex, which can includes persons with gender identity
disorder, regardless of a Gender Status Change Ruling. Furthermore, in recent
years, an increasing number of local governments have established a “family-ship”
system that includes children and parents in addition to the partnership system.
The fact that such systems are expanding among local communities and appear tobe functioning without any major issues indicates a change in the social
circumstances regarding the diverse nature of families, where sexual minorities,
including persons with gender identity disorder, can form families, raise children
and lead fulfilling lives.
As stated in Part 2, Section 2(2) of the majority opinion, approximately 19 years
have passed since the Act’s enactment, and understanding of persons with gender
identity disorder has become more widespread. Efforts are being made in various
sectors of society to improve the environment and resolve societal problems they
may face. The partnership system has important significance both as an official
system and in terms of its nationwide expansion.

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(4)
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Considering (i) the purpose of the Act, (ii) the purpose of Article 2 and each Itemof Article 3(1), and (iii) their relationship to each other, only the Provision should
be invalidated rather than the entire Act even if the Provision is determined to beunconstitutional. It is clear that the majority opinion reaches the same conclusion.

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2.

Item 5(1)

The appellant has argued that both the Provision and Item 5 are unconstitutional.
The appellant had also argued in the Prior Instance that both provisions wereunconstitutional, but the original decision determined that the Provision wasconstitutional, and had not considered the appellant's argument regarding Item 5.
Therefore, in light of the case, I will also consider the constitutionality of Item 5.

(2)

Item 5 stipulates that “[one is requested to] ha[ve] a body which appears to haveparts that resembles the genital organs of those of the Opposite Gender.” In order
to meet the requirement, in principle, it is generally necessary for such a person toundergo external genital removal surgery, genital reconfiguration surgery, or
hormone therapy to achieve the above appearance (hereinafter, “External Genitalia
Removal Surgery or Treatment”).

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Considering the above, in addition to the circumstances mentioned in the joint
concurring opinion of the 2019 Decision, and considering them in a comprehensive
manner, at this point in time, it cannot be said that the restriction on the right tofreedom from physical intrusion under the Provision is necessary or reasonable, and
the Provision violates Article 13 of the Constitution.

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Among these, external genital removal and genital reconfiguration surgeries
include penectomy and vulvoplasty for biological males, and urethral lengthening
and phalloplasty for biological females. Such surgical treatment is a severe
intrusion of one's body that poses a risk to life or the body with irreversible
consequences.

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Hormone therapy involves the administration of hormone-related drugs to produce
a certain effect to physically adapt the body to the other gender, in that theappearance of the external genitalia resembles that of the other gender. Although
this is less intense than the above-mentioned surgical treatment, it is still intrusive.
Hormone therapy is a lifelong or long-term treatment, and it is pointed out that
hormone therapies not only cause irreversible changes to the body, such as

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testicular atrophy and loss of sperm-producing function, but they can also lead tofatal side effects such as thrombosis, as well as angina, liver dysfunction,
gallstones, liver tumors, and pituitary gland tumors. Considering that, as aprinciple, hormone therapy should only be administered to persons who do not
suffer from diabetes, hypertension, blood coagulation abnormalities, endocrine
disorders, and malignant tumors, it constitutes a bodily intrusion that involves
considerable risk or burden to one’s life or body.
Therefore, being forced to undergo an External Genitalia Removal Surgery or
Treatment would constitute a serious restriction on the freedom from bodily
intrusion.
Item 5 only provides a prerequisite that generally requires persons with gender
identity disorder who wish to receive a Gender Status Change Ruling to undergo
an External Genitalia Removal Surgery or Treatment, but does not directly force
persons with gender identity disorder in general to undergo such surgery. Putanother way, however, Item 5 requires persons with gender identity disorder, who
do not require an External Genitalia Removal Surgery or Treatment as medical
treatment, to undergo such surgery in order to be granted a Gender Status Change
Ruling; such cases include a person who does not wish to have external genitalia
removal or a genital reconfiguration surgery, and chooses to receive hormone
therapy but who [(i)] does not obtain an appearance that resembles the external
genitalia of the other gender, or [(ii)] does not wish to continue hormone therapy
because of difficulties due to side effects or illness.
On the other hand, it should be considered as an important legal interest tied to
one’s personal dignity that a person with gender identity disorder is treated under
the relevant legislation in accordance with that person's own gender identity. Thisis particularly pertinent when considering that legal gender is treated as one of thebasic attributes of individuals in various situations in their lives and thecircumstances persons with gender identity disorder are facing. This does not varydepending on whether a person with gender identity disorder requires External
Genitalia Removal Surgery or Treatment.
Accordingly, Item 5 should be considered a restriction on the freedom from bodily
intrusion as it becomes inevitable for persons with gender identity disorder who do
not require an External Genitalia Removal Surgery or Treatment for medical

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reasons to undergo such surgery in order for them to secure their important legal
interest to be legally treated in accordance with their gender identity. Evenconsidering that this does not directly force persons with gender identity disordermore broadly to have such surgery, such restriction should not be allowed unless it
is necessary and reasonable considering the importance of the freedom from bodily
intrusion.

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520

To examine whether Item 5 is constitutional as a necessary and reasonable
restriction in light of Article 13 of the Constitution, it is necessary to weigh thedegree of necessity of such restriction for the purpose of Item 5 against thesubstance and nature of the freedom to be restricted and actual manner and degreeof the restriction.
(3)a. As such, when looking at the purpose of Item 5, its intent is to prevent societal
confusion, such as in public baths, if one’s appearance does not resemble theexternal genitalia of the opposite gender.
The appearance of external genitalia is rarely noticed by other people and comes
into question only in limited situations, such as in a public bath. However,public baths are generally subject to measures taken by business operators basedon laws and baths are separated by gender. Those operating public baths musttake necessary measures for the hygiene and morals of bathers, and thestandards for the above measures are stipulated by prefectural ordinances(Article 3(1) and (2), and Article 2(3) of the Public Baths Act). In light oftechnical advice from the Minister of Health, Labour and Welfare(“Management Guidelines for Hygiene etc. of Public Baths”, the DirectorGeneral of the Environmental Health Bureau of the Ministry of Health, Labourand Welfare's Notification No. 1811 dated December 15, 2000), the standardsof these ordinances generally stipulate that men and women aged around or overa certain age are not allowed to bathe together, and that baths must be separated
for men and women. Based on these standards, the operators must separate thebaths for men and women. Similar regulations apply to hotel operators (Article
4(1) and (2), and Article 3(1) of the Hotel Business Act). Although there aremany cases where there are no applicable ordinances that include the above
provisions with respect to communal baths in the hotel industry, baths are
generally separated by gender according to measures taken by hotel operators(see the above-mentioned Director-General of the Environmental Health16

Bureau of the Ministry of Health, Labour and Welfare's Notification,“Management Guidelines for Hygiene etc. of Hotel Businesses”).
525

530

535

540

545

550

555

Such separation of baths is intended to maintain good morals and ensure an
environment where users can bathe with peace of mind without feelingembarrassed. The separation is in accordance with the measures taken by eachbusiness operator, which itself is not the treatment of gender through theapplication of legal provisions (see Article 4(1) of the Act). In actuality, the legal
gender of each user is usually not confirmed by certificates [or otheridentification], and assuming that users are able to recognize each other's
physical appearance, including the external genitalia area, it can be said that
men and women are distinguished based on the physical appearance
characteristics pertaining to each sex. In light of the nature of public baths,
which are facilities operated by business operators where a large number ofpeople using them are naked, there are considerable reasons for such distinctionof men and women based on physical appearance. The technical advice of the
Minister of Health, Labour and Welfare and the standards of ordinances basedon such advice are also understood to have the same purpose (see the Directorof the Environmental Health Division of the Pharmaceutical Safety andEnvironmental Health Bureau of the Ministry of Health, Labor and Welfare's
Notification No. 0623 dated June 23, 2023). This sex-based distinction isconsidered to form a norm for social life embodied by measures taken bybusiness operators based on laws. Item 5 stipulates the requirements for a
Gender Status Change Ruling be based on this norm, but does not prescribe thenorm.
b. Considering the above, it is clear that persons with gender identity disorder area minority in society as a whole, and among those who seek a Gender Status
Change Ruling, there are also a considerable number of people who haveundergone an External Genitalia Removal Surgery or Treatment in order torelieve discomfort due to physical characteristics of their biological gender, andwhose appearance resembles the external genitalia of the opposite gender. In
addition, considering the nature of the norm based on physical appearance, as
mentioned above, even without Item 5, this norm would not naturally change,
and it is hard to believe that a replacement norm would be immediately formed.
Furthermore, a person with gender identity disorder is a person who isrecognized as having an intention to conform physically and socially to the

17

560

565

570

575

580

585

590

opposite gender based on the specific diagnosis of physicians and based on
medical treatment that the person has received (Article 2 of the Act). It is
unrealistic to assume that such a person would purposely embarrass and cause
confusion to other users while wishing to be accepted as a person of the opposite
gender. Based on these facts, even without Item 5, it would be extremely rare
for societal confusion to occur in relation to the use of public baths by persons
with gender identity disorder.
On the other hand, in the absence of Item 5, we cannot deny that users may feel
uneasy about the possibility that a Gender Status Change Ruling may cause a
discrepancy between norms based on physical appearance and legal gender.
However, even in that case, considering the nature of the above norms, suchnorms will still be observed socially, including for those who have received a
Gender Status Change Ruling. To clarify the measures taken by business
operators based on such norms, we can take necessary measures, such as byappropriately establishing ordinance standards and measures for business
operators regarding the classification and use of baths, based on technicaladvice from the Minister of Health, Labour and Welfare. In addition, the Act
stipulates that a person who has received a Gender Status Change Ruling will
be deemed to have changed their gender to the opposite gender in theapplication of the provisions of laws and regulations, but also stipulates an
exception to this rule if the law provides otherwise (Article 4 (1)). Therefore, it
is also possible to create a provision that creates an exception in the law toaddress the limited situation of using public baths. Considering that thepossibility of the above-mentioned confusion is extremely low, it is fully
possible to maintain the situation where users can use public baths with peaceof mind as they currently do.
In relation to this point, it has been pointed out that without Item 5, persons withthe appearance of male external genitalia would enter women's public baths,
claiming that their mental gender is female. However, Item 5 is a provision that
establishes the requirements for a Gender Status Change Ruling for persons
with gender identity disorder who are certified based on a specific diagnosis ofphysicians which is based on medical treatment. Even if Item 5 does not exist,
no one can be allowed to use women's public baths by simply calling oneself as
such. If there is any fraudulent behavior while the norms have not changed atall, it should be dealt with appropriately as an issue of importance to all users,18

as it has been in the past. It is clear that this issue has no rational connection to
the restrictions on the rights of persons with gender identity disorder.
595

In addition, approximately 19 years have passed since the Act’s enforcement,
and more than 10,000 people have received a Gender Status Change Ruling todate, and the public understanding of persons with gender identity disorder ismore widespread. Considering these factors and given that efforts are being
made in various areas of society to improve the environment in order to resolve
societal issues, there is little possibility that societal confusion will occur even
without Item 5. It cannot be said that it is difficult for society as a whole tounderstand the fact that it is possible to maintain a situation where users can use
a service [such as a public bath] with the same peace of mind as they currently
do.

600

605

Based on the above considerations, the need for restrictions under Item 5 iscurrently quite low.
c. Regarding the use of restrooms and changing rooms, some also point out thatpeople with the external appearance of male genitalia enter women's restrooms
and other facilities, claiming that their mental gender is female. However, in
restrooms, there are usually few opportunities to recognize the external
appearance of other people's external genitalia, and separation is not based on
appearance. Therefore, we cannot think that Item 5 aims to avoid confusion in
restrooms. It is an important issue for all users to be able to use restrooms safely
and securely, but the nature of each facility (inside a school, company, formembers, public use, etc.) and how they are used vary, and appropriate
responses are required depending on specific circumstances. In addition, the useof bathrooms, which is an essential part of life for persons with gender identity
disorder, is an urgent and difficult issue, regardless of whether they havereceived a Gender Status Change Ruling. Appropriate responses are required
depending on individual circumstances, considering how a society should
function where diverse people live together. In this way, it is clear that there is
no rational reason to require restrictions under Item 5 in relation with the use ofrestrooms.

610

615

620

(4)
625

Next, I will examine the specific manner and degree of restrictions under Item 5,
considering progress in medical knowledge since the Act’s enactment.

19

630

635

640

645

650

655

660

The reason for the Act’s enactment was to enhance the effectiveness of treatment
and eliminate social disadvantages for people who have undergone necessary
treatment for gender identity disorder, but still face societal problems because theirlegal gender remains their biological gender, by granting them a Gender Status
Change Ruling. Considering that, at the time of its enactment, gender-affirming
surgery, including external genital removal surgery and genital reconfiguration
surgery, was positioned as the final stage of a staged treatment process, andhormone therapy was positioned as the preceding stage, the requirement that aperson seeking a Gender Status Change Ruling must have undergone such surgery
was of reasonable medical relevance in that it identified persons who had undergone
the necessary treatment for gender identity disorder. However, after the Act’s
enactment, medical knowledge of gender identity disorder has evolved and staged
treatment is no longer utilized due to growing recognition of the diversity ofsymptoms exhibited by persons with gender identity disorder and the various
treatment methods for these symptoms. It is now understood that the type ofphysical treatment necessary for persons with gender identity disorder differs
depending on the patient. As a result, the determination of whether one has
undergone the necessary treatment is no longer determined by whether they haveundergone External Genitalia Removal Surgery or Treatment. As such, impositionof the above requirements now lacks rational relevance from a medical perspective.
In addition, as stated in section 1(2), based on current general medical knowledge,
and given the diversity of symptoms exhibited by persons with gender identity
disorder, it is possible to interpret that “[such person] has the intention of physicallyconforming with the Opposite Gender” in the definition of persons with gender
identity disorder includes a variety of intentions, and that treatment may not require
External Genitalia Removal Surgery or Treatment. Even under this interpretation,
imposing the above requirements does not have any rational medical relevance.
Furthermore, with the advancement of medical knowledge as described above, therestriction that Item 5 imposes on the freedom from bodily intrusion has become
something that forces persons with gender identity disorder who do not otherwise
require External Genitalia Removal Surgery or Treatment to make a grave choice
to either (i) give up their freedom from bodily intrusion and accept External
Genitalia Removal Surgery or Treatment, which is a severe bodily intrusion
involving considerable risks and burdens or (ii) give up their important legal
interest to be treated in accordance with their gender identity and abandon their

20

Gender Status Change Ruling. In addition, in order to achieve the aforementioned
purpose of Item 5, the imposition of such restrictions that lack rational relevancefrom a medical perspective is excessive, considering such persons have been
specifically diagnosed by physicians to have gender identity disorder and havereceived [proper] treatment.

665

Accordingly, Item 5 imposes excessive restrictions by forcing a choice between thetwo options described above and, consequently, the degree of those restrictions
imposed by Item 5 should be considered significant.
(5)670

Based on the above, considering that the need to place restrictions on the freedom
from bodily intrusion under Item 5 is now considerably low, and that the extent of
the restrictions has become significant, [the restrictions] cannot be considerednecessary and rational.
Therefore, Item 5 violates Article 13 of the Constitution.

(6)
675

680

685

690

If Item 5 is deemed unconstitutional, only Item 5 is invalid in respect of theProvision. However, if both the Provision and Item 5 are deemed invalid, then the
only remaining provisions are the requirements related to Article 3(1) Items 1 to 3of the Act and those related to the definition of persons with gender identity disorderin Article 2 of the Act. Therefore, I have examined, in light of the purpose of theAct, whether the entire Act or only the Provision and Item 5 are invalid. If a Gender
Status Change Ruling is to be made based on the remaining requirements, it would
contradict the purpose of the Act, and the question arises as to whether that would
be tantamount to establishing new legislation based on a judicial decision andinfringe on legislative power.
The Act’s purpose was to enhance the effectiveness of treatment and to eliminatesocial disadvantages with respect to people who have undergone necessary
treatment for gender identity disorder but still face problems in their lives because
their legal gender remains the same as their biological gender through the grantingof a Gender Status Change Ruling. Article 3(1) of the Act stipulates that a person
who seeks a Gender Status Change Ruling must have gender identity disorder andmeet all of the requirements in the same paragraph. While the requirements
regarding the definition of persons with gender identity disorder stipulated in
Article 2 are the underlying requirements, those set forth in Article 3(1) are
independent and separate in both form and content.

21

695

700

705

710

715

720

725

In light of the purpose and provisions of the Act, the basic requirement thereunderis the psychological and intentional state of having a persistent belief that one’s
gender identity does not conform with their clear biological gender and theintention to conform physically and socially to the other gender, and that it allows
for special exceptions in the recognition of gender status for people who are
diagnosed by physicians based on general medical knowledge and experience tomeet this requirement.
As stated in section 1(2), based on current general medical knowledge, the clause“has the intention of physically conforming with the Opposite Gender” in Article
2 of the Act includes a variety of intentions, and, in some cases, treatment may not
require a gonadectomy or External Genitalia Removal Surgery or Treatment.
Further, since the main purpose of the Provision and Item 5 is to avoid societal
confusion, and one’s physical state under the Provision and Item 5 does not dependon the cause of such state, it cannot be that one’s physical state is inseparable fromone’s intentions. In providing the reasons for the Act’s enactment along with the
explanations of those involved in its legislation (see, among others, “Commentaryon the Act on Special Cases in Handling Gender Status for Persons with Gender
Identity Disorder” supervised by Chieko Nohno (then-member of the House ofCouncilors), NIHON KAJO Publishing (2004)), there is no indication that one’s
physical state is considered as an essential element for the purpose of granting
special provisions for the recognition of gender status under the law.
Therefore, the requirements related to the Provision and Item 5 are not inseparablefrom the purpose and fundamental concept of the Act, and it is clear that applying
special exceptions to persons who are not in the physical state described in bothprovisions, but their psychological state and intentions as stated in Article 2 of the
Act are recognized through specific treatment-based diagnosis by a physician, is
consistent with the purpose of the Act. Given that it is an important legal benefit
tied to an individual’s dignity that someone with gender identity disorder enjoy
legal recognition of gender status according to their gender identity, invalidating
the entire Act due to unconstitutionality of both provisions is surely contrary to the
purpose of the legislation.
In view of the above, if the Provision and Item 5 are deemed to be unconstitutional,
then only these provisions will be invalidated and rulings should be made based on
the remaining provisions, which does not change the purpose or fundamental

22

concept of the Act in any way and is clear that it should not be considered aviolation of legislative power.
730

Therefore, only the Provision and Item 5 are invalid.
(7)

735

740

745

750

755

760

Even if the Provision and Item 5 are unconstitutional and invalid, it is obvious thatappropriate judgment must be exercised regarding one’s psychological state andintentions under Article 2 of the Act based on general medical knowledge and atreatment-based diagnosis by a physician.
In this regard, the Act requires that diagnoses be made consistently by two or more
physicians who have the necessary knowledge and experience to do so accurately
based on generally accepted medical knowledge (Article 2). In addition, in order
to seek Gender Status Change Ruling, a medical certificate from the physician
stating the diagnosis results and treatment progress and results must be submitted(Article 3 (2)). Additional matters to be included in the medical certificate are
stipulated in the Ministry of Health, Labour and Welfare Ordinance No. 99 of May
18, 2004, and the reference format for medical certificates as well as detailed
instructions on how to fill them out are stipulated in Notification No. 0518001 of
the same date from the Director of the ministry’s Mental Health and Disability
Health Division, Department of Health and Welfare for Persons with Disabilities.
Therefore, the medical certificate should include specific descriptions about thepresence or absence of a persistent psychological belief that one is of the othergender, the presence or absence of an intention to adapt to the other gender, and thebasis thereof, as well as the progress and results of treatment with the specificduration, results and other details of each treatment, categorized into psychologicalsupport, hormone therapy, mastectomy, and gender-affirming surgery.
Furthermore, one’s physical and social adaptation as the opposite gender must be
specifically described.
If the Provision and Item 5 are unconstitutional and invalid, even if there are parts
that do not require description, the court will, as it has done so to date, make adecision that relies not only on the individual’s claims or an abstract diagnosis but
on a specific diagnosis made by the physician based on the treatment results “thatis generally recognized by two or more physicians who have the knowledge andexperience necessary to make the diagnosis accurately.” Only in such cases will
the court decide that the requirements under Article 2 of the Act are satisfied.

23

The Japanese Society of Psychiatry and Neurology has so far established, andrevised as necessary, detailed diagnosis and treatment guidelines for medical
professionals, based on specialized discussions, medical knowledge and clinicalexperience regarding gender identity disorder. In addition, the GID Society(Japanese Society of Gender Identity Disorder), whose purpose is to promoteresearch and improve knowledge on gender identity disorder, has established its
own physician certification system to certify clinicians who have a certain level ofknowledge and ability and have trained at specialist training sessions. These areimportant points that should be considered when determining whether a physician
has the knowledge and experience necessary to accurately make the diagnosis, andwhether it is made based on generally accepted medical knowledge.

765

770

Based on the above, the courts make decisions on the requirements stipulated in
the Act based on appropriate grounds, and that the appropriateness of thosedecisions is guaranteed.
775

3.

As stated above, the Provision and Item 5 are unconstitutional and invalid. Without
having to assess whether the requirements of Item 5 are satisfied, and, in light of
the remaining requirements of the Act, there are grounds for the appellant’s petition.
Therefore, the original decision should be reversed, the original ruling should be
rescinded, and a decision should be made to change the appellant’s gender frommale to female.

780

4.

785

790

Conclusion

As stated in section 1, I am revising my conclusion of the 2019 Decision in light ofthe current decision on the constitutionality of the Provision, but I would like to add
special comments due to the fact that more than just a few people have been
considered to be seriously affected by it over the past four-odd years.
Law No. 70 of 2008, which partially amends the Act, stipulates in Paragraph 3 of
the Supplementary Provisions that the system for Gender Status Change Rulings
for persons with gender identity disorder should be examined as needed based on
the status of the Act’s enforcement after its amendment, taking into account thesituation of those people and their related parties, as well as other circumstances. In
addition to the joint statement by the World Health Organization and others, as wellas national and international views on issues surrounding the Provision, and judicial
and legislative precedents from other countries, the 2019 Decision pointed out that24

the constitutionality of the Provision must be constantly scrutinized. However, since
the time of the above decision and for more than 15 years since the amendment, it
has not been amended nor given necessary consideration.

795

All citizens shall be respected as individuals, and their right to life, liberty and the
pursuit of happiness shall, to the extent that it does not interfere with public welfare,be the supreme consideration in legislation and in other governmental affairs. It is
the responsibility of the state to take appropriate measures depending on thecircumstances. Above all, today, we need to ensure equal participation in all areasof society, regardless of gender identity or sexual orientation, by removing social
barriers and addressing inappropriate norms and practices. There is a need to realize
a society in which people can enjoy a fulfilling life (see G7 Hiroshima Summit
Communiqué as of May 20, 2023, and G7 Elmau Summit Communiqué as of June
28, 2022, among others).

800

805

The suffering and disadvantages of people whose assigned gender and gender
identity do not match include a wide range of issues related to their personal dignity.
In the democratic process, the rights and interests of such minorities must not beignored.

810

Justice Koichi Kusano’s dissenting opinion is as follows.
Although I have no objection to the Provision being unconstitutional and invalid,
in light of the circumstances of this case, I consider it reasonable to render a decision
determining that Item 5 also is unconstitutional and invalid, and allowing for achange in recognition of gender status of the appellant. I will explain the reasoning
behind this belief below.

815

1.
820

825

As long as Item 5 remains in effect, the body of a person who files a Gender Status
Change Ruling petition based on Article 3(1) of the Act (hereinafter, the“Applicant”) must satisfy the Item 5 requirement. However, a person seeking achange in recognition of gender status from male to female must undergo genderaffirming surgery to remove the penis and create a vulva, and a person seeking achange of the treatment of gender from female to male must undergo genderaffirming surgery to lengthen the urethra and form a penis, if they wish to fulfill the
Item 5 requirement without any doubt. (I say “without any doubt” because, as
discussed in 3 below, there is a view that there are cases in which the requirement25

of Item 5 can be met without undergoing these surgeries.) However, these surgeriescause Applicants fear and pain, and those who undergo these surgeries must accept
the risk of concurrent infection among other risks to their lives and bodies.
830

2.

As the majority opinion points out, “the benefit of receiving legal recognition of
their gender in accordance with [one’s] gender identity” is an important legal
benefit. As such, the fact that an Applicant must undergo the surgeries describedabove to receive this benefit, despite the existence of the Act, can be said to violate
the “freedom from bodily intrusion” guaranteed by Article 13 of the Constitution.
Therefore, for Item 5 to be constitutional, the purpose for which Item 5 restricts theabove-mentioned freedom (hereinafter, the “Purpose”) must be justified, and themeans chosen by Item 5 to achieve this should be reasonable in light of the Purpose.
Therefore, I will consider these points one by one below.

(1)

The Purpose of Item 5 is generally explained as meant to avoid societal disruption
at public baths and similar facilities, but it is necessary to define, as specific andconcrete as possible, the benefits that natural persons enjoy [via Item 5] whencomparing such against the disadvantages and costs Item 5 brought upon
Applicants. From this point of view, it would be appropriate to view the Purpose of
Item 5 as the “interest of not being made to feel shame, fear, or disgust by being
shown the genitals of the opposite sex against one’s will” (hereinafter, the “interestof not being shown the genitals of the opposite sex against one’s will” (always inquotations for readability)). It is well-established precedent that the act of openly
exposing one’s genitals constitutes a crime under Article 174 of the Penal Code(public indecency), and even in public bathhouses, which are facilities thatexceptionally allow the exposure of genitals within a certain area, the ordinancesof each local government delegated by the Public Bathhouses Act have stipulated
that bathrooms and similar facilities, should be separated by sex. In view of thesefacts, the “interest of not being shown the genitals of the opposite sex against one’s
will” is an interest that deserves respect, and the Purpose of Item 5, which aims toprotect this interest, is justified.

(2)

Therefore, the issue is whether the means chosen to achieve the above-mentioned
Purpose (i.e., Item 5) can be said to be reasonable in light of the Purpose (the issue
regarding the reasonableness of the means is hereinafter, the “reasonableness issue”
among the so-called means-for-purpose examinations).

835

840

845

850

855

26

860

There are various academic views on what framework should be used when making
judgments on the reasonableness issue. However, the essence of the reasonablenessissue is to compare and weigh the interests of parties that cannot be measured bycommon indicators, and it is difficult to imagine that there is any judgment
framework a priori that can universally or typologically carry out such comparison
and weighing. It seems that the best way of thinking that can be adopted when
considering the reasonableness issue is to search for the viewpoint that can mostclearly indicate the reasonableness of the judgment through trial and error, and to
discuss the issue and make a judgment based on the “best viewpoint” discovered
as a result of the search. The “best viewpoint” that can be used in this case iscomparing the society that would emerge if Item 5 were held to be constitutional(hereinafter, a “society in which Item 5 is held to be constitutional”) and the societythat would emerge if Item 5 were held to be unconstitutional and eliminated(hereinafter, a “society in which Item 5 is held to be unconstitutional”) andexamining which society would be a better society in light of the various
philosophies embodied by the Constitution.

865

870

875

3.

880

885

First, I will consider a society in which Item 5 is held to be constitutional. In thissociety, an applicant who meets all requirements to receive a Gender Status Change
Ruling under the Act except for Item 5 (hereinafter, a “person who does not satisfy
Item 5”) cannot receive a Gender Status Change Ruling. Therefore, such person
who does not satisfy Item 5 would not be permitted to enter into areas in certain
facilities, such as a public bathhouse, that are separated by sex and in which
exposure of genitals by [persons with designated sex] * is allowed (hereinafter, a“Permissible Area”). Consequently, the “interest of not being shown the genitals of
the opposite sex against one’s will” will not be impaired by a person who does notsatisfy Item 5 [since such person would not be able to enter Permissible Areas thatare designated for similarly cisgendered persons that do not correspond to theirlegal sex]. On the other hand, in order for a person who does not satisfy Item 5 tochange their [legal] gender status definitively, they must undergo gender-affirming
surgery; therefore, they have no choice but to accept an infringement on their***[persons of the same designated sex] here means (i) cisgender persons whose biological sex is
opposite that of the person who does not satisfy Item 5 or (ii) persons who have satisfied Item 5 (i.e.,
have had a gonadectomy) and are of therefore of the sex designated for the relevant Permissible
Area. For example, female users (including cisgender women and transgender women who satisfy
Item 5) of Permissible Areas of a public bathhouse designated for use by women, or male users(including cisgender men and transgender men who satisfy Item 5) of Permissible Areas of a publicbathhouse designated for use by men.

27

890

freedom from bodily intrusion or give up [their right to] enjoy the benefit ofreceiving legal recognition of their gender in accordance to their gender identity. In
short, a society in which Item 5 is held to be constitutional is indeed a tranquil
society in that the “interest of not being shown the genitals of the opposite sex
against one’s will” is very unlikely to be impaired by a person who does not satisfy
Item 5, but this tranquility is nothing but the result of the constant suppression of
the freedoms and interests of those who do not satisfy Item 5.

895

Some argue that a person with gender identity disorder may undergo hormone
therapy for a considerable period of time, which may cause a noticeable change inthe external appearance of their genitals, and that such a noticeable change maysatisfy the requirement of Item 5 even without [such person] undergoing genderaffirming surgery; however, even if there are those who undergo such a change, thisdoes not change the fact that the freedom and interests of persons who do notundergo such a change or do not satisfy Item 5 are under constant suppression.

900

4.
905

910

915

920

Next, I will consider a society in which Item 5 is held to be unconstitutional. In thissociety, it is understandable there may be people who are concerned with thepossibility of the “interest of not being shown the genitals of the opposite sex
against one’s will” held by other users of the Permissible Area being impaired by
the entry into the Permissible Area of a person who does not satisfy Item 5 but hasreceived a change in recognition of gender status [to their gender identity](hereinafter, if it is clear from the context, the term a “person who does not satisfy
Item 5” will be used in this limited sense). However, two points must be kept inmind here.
The first thing to keep in mind is that, according to published survey results, theproportion of persons with gender identity disorder in the total population of Japanis extremely low, and among them (considering that not a small number of persons
with gender identity disorder willingly undergo gender-affirming surgery because
they wish to conform their physical characteristics to those of the other sex [i.e., totheir gender identity]), the number of persons who do not satisfy Item 5 would beeven smaller; in addition, there are even fewer, if any, who dare to enter aPermissible Area and act in such a way that their genitals are visible to other users,
knowing that the traditional order of Japanese society has respected the “interest of
not being shown the genitals of the opposite sex against one’s will.” Considering
this point, even if we set aside the second point, the possibility of a situation in

28

925

930

935

940

945

950

955

which the “interest of not being shown the genitals of the opposite sex against one’s
will” of Permissible Area users is impaired by persons who do not satisfy Item 5 isextremely low.
The second thing to note is that all Permissible Areas are under the control of those
who are in the business of providing them for public use. Therefore, operators ofPermissible Areas faced with a society in which Item 5 is held to be unconstitutional
will be forced to establish some kind of rule of use as to whether to prohibit or allow
persons who do not satisfy Item 5 to enter the Permissible Area (it may be possible
to limit the entry of persons who do not satisfy Item 5 to certain date, time and/or
day of the week), or to take some intermediate measures (it may be possible to allow
entry on the condition that a swimsuit is worn, either free of charge or provided fora fee), considering (i) the interpretation of “male and female” provided for in thetechnical advice given by the Minister of Health, Labour and Welfare to each local
government and in the various ordinances that require separation by gender for
Permissible Areas based on this technical advice (the current technical advice (NHI
No. 0623-1, dated June 23, 2023) states that the distinction between “male andfemale” should be based exclusively on physical characteristics) and (ii) the
opinions of users of Permissible Areas. Therefore, given that providing services thatcan satisfy as many users as possible while preventing trouble among users should
be a top priority for Permissible Area operators from the perspective of smooth andappropriate Permissible Area management, in establishing Permissible Area usage
rules for persons who do not satisfy Item 5, operators of any Permissible Area are
expected to pay close attention to ensuring that users’ “interest of not being shown
the genitals of the opposite sex against one’s will” is not impaired, and endeavor to
make the users of such Permissible Areas are thoroughly aware of the area’s
established usage rules. As a result, the possibility of Permissible Area users’“interest of not being shown the genitals of the opposite sex against one’s will”
being impaired will be further reduced.
In summary, even in a society in which Item 5 is held to be unconstitutional, it isextremely unlikely that the “interest of not being shown the genitals of the opposite
sex against one’s will” will be impaired. On the other hand, since persons who do
not satisfy Item 5 are given the option of receiving the change in recognition ofgender status [to their gender identity] without having to undergo gender-affirming
surgery in this society, the suppression of their freedom or interests will besignificantly reduced (though not “completely” as they are not allowed unlimited29

access to Permissible Areas).
960

In addition, in a society in which Item 5 is held to be unconstitutional, it is expectedthat the various views on how the rules for the use of Permissible Areas by persons
who do not satisfy Item 5 should be regulated will become the subject of debate invarious public spaces; and depending on the outcome of such discussions, it is not
impossible that additional legislative measures or new judicial decisions may resultin a situation slightly different from the one described above (within the limits ofwhat is permissible under the Constitution, of course) with regard to the freedom orinterests of either or both the persons who do not satisfy Item 5 and other citizens.
In view of this possibility, a society in which Item 5 is held to be unconstitutional
may be a somewhat noisier society than a society in which Item 5 is held to beconstitutional. However, this “noisiness” can be seen as an effort, and its result, tomaximize citizen’s enjoyable welfare, with full respect for the freedom and interestsof both persons who do not satisfy Item 5 and other citizens.

965

970

5.
975

980

Accordingly, a society in which Item 5 is held to be unconstitutional is a better
society than a society in which Item 5 is held to be constitutional in light of thevarious philosophies embodied in the Constitution. Therefore, the restrictive
measures in Item 5 are not reasonable in light of the Purpose of Item 5, and it isappropriate to consider Item 5 to be unconstitutional, as is the same with theProvision. Since it is clear from the record of the case that the appellant satisfies therequirements of the Act except for the Provision and Item 5, I believe it isappropriate [for the Court] to make a decision to overturn the original decision andgrant the petition in this case.

Justice Katsuya Uga's dissenting opinion is as follows.
1.
985

990

I fully agree with the majority opinion that the restriction on the freedom frombodily intrusion caused by this Provision is unnecessary and unreasonable, and that
the Provision is unconstitutional. As the majority opinion states, a gonadectomy is
not necessarily the final stage of treatment and is only one of the treatment options,the selection of which should be left to the individual's will. A gonadectomy should
be approved only if it is confirmed to be considered necessary from a medical
perspective and the individual's true consent has been obtained. Therefore, a systemthat does not allow a person to change their legal gender unless they undergo a30

gonadectomy, regardless of medical necessity or an individual's preference, forces
those who have suffered material disadvantages due to discrepancies between theirgender identity and their legal gender to make a grave choice between undergoing
gonadectomy, which involves risks to their lives and bodies in order to make theirlegal gender match their gender identity, or accepting the various disadvantages inlife that would result from the discrepancy between their gender identity and theirlegal gender, in order to avoid the risks involved with a gonadectomy. Furthermore,
the Provision may foster a perception that those who do not undergo a gonadectomy
are not persons with genuine gender identity disorder which is illogical and has no
medical basis.

995

1000

The main concern behind the Provision was that if a change in legal gender wasallowed while reproductive capacity remained, a female could be a father and amale could be a mother, which was thought to lead to societal confusion. However,as the majority opinion noted, based on the 2008 Amendment, the existence of afemale father and a male mother had already been legally recognized in the event
their children were already adults. More than 15 years have passed since the 2008
Amendment and there has been no such societal confusion. In addition, separate
from the legal perspective, it is not only extremely rare for an individual who
appears to be male to give birth to a child, but it is also possible to do so regardlessof whether there is a change in the individual's legal gender. The Provision is noteffective in preventing such situation. Furthermore, it is now medically possible for
persons with gender identity disorder to cryopreserve sperm and ovaries before
undergoing hormone therapy or gonadectomy, and subsequently use them to havechildren after changing their gender. Even if such a situation were to occur, not only
would it be extremely rare, but also it would not be prevented by the Provision, andin this respect, the Provision is not effective.

1005

1010

1015

Persons with gender identity disorder do not suddenly start living their selfidentified gender by changing their legal gender; rather, in general, their outward
gender changes through hormone therapy, etc., they change their names with thepermission of the family court, and live their lives with a gender identity thatmatches both their appearance and name. Therefore, it seems that discrepancies
between a person's gender as indicated by their appearance or name and their legal
gender are often the cause of societal confusion.

1020

1025

2.

The Provision also has serious issues in terms of infringement of reproductive

31

rights, which is a right for an individual to make decisions regarding their own
reproduction. Regarding this point, the joint concurring opinion of the Supreme
Court's Second Petty Bench dated January 23, 2019 also stated that removing theovaries or testicles for gender-affirming surgery poses a danger to both life and bodyand impairs reproductive function which would lead to serious and irreversible
consequences. Reproductive rights can also be understood as a fundamental humanright guaranteed by Article 13 of the Constitution, and unwillingly consenting to agonadectomy, in order to match one's self-identified gender with one's legal gender,
and thereby losing one's reproductive ability, poses a grave choice and is anexcessive restriction on reproductive rights.

1030

1035

Reproductive rights can be interpreted as being guaranteed separately from thefreedom from bodily intrusion, but it is also possible to interpret them as being
included in that same freedom. In 2011, Germany's Federal Constitutional Court
ruled that a provision requiring a loss of reproductive capacity for changes in gender
treatment was unconstitutional, stating that it is an element of the inalienable rightof the person protected by Article 2(2) [of Germany’s constitution].

1040

3.

1045

1050

1055

In my opinion, not only the freedom from bodily intrusion, but also, as in this case,the right of a person with gender identity disorder to be legally treated in accordancewith their gender identity is essential for the pursuit of happiness and is afundamental human right guaranteed under Article 13 of the Constitution. Although
the issue regarding freedom from bodily intrusion is limited to the Provision and
Item 5, if the right to be legally treated in accordance with one’s gender identity isa fundamental human right guaranteed by Article 13 of the Constitution, then thequestion arises whether the other provisions of Article 3(1) of the Act abridge that
fundamental human right.
The view that the right to have one’s gender treated in accordance with his or her
gender identity ought to be recognized as a constitutional right is not only aprevailing academic theory in Japan, but also in other countries, where the idea thatsuch a right is guaranteed under international human rights law or the constitutionallaw is accepted by many. In 2011, the Federal Constitutional Court of Germany heldthat it was unconstitutional to make gender-affirming surgery a requirement for achange of legal gender by persons with gender identity disorder, because of (i) theexcessive burden the requirement places on the right to bodily integrity guaranteedby Article 2(2) of the Basic Law ([i.e., Germany’s constitution]), and (ii) the

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1060

1065

1070

1075

1080

1085

1090

excessive burden that the requirement puts on fundamental human rights
guaranteed by Article 1(1) of the Basic Law, which guarantees the right to humandignity, and Article 2(1) of the Basic Law, which guarantees the right to freedom of
personality. Regarding the latter (ii), the Federal Constitutional Court of Germany
has held that the right to human dignity, coupled with the fundamental human rightto the protection of personality, requires legal recognition of one’s gender identity.
In addition, in 2017, the European Court of Human Rights held that requiring
persons with gender identity disorder to undergo sterilization to have their legal
gender changed violates the European Convention on Human Rights (hereinafter,
the “Convention”). There, the court held that such a requirement is not only aviolation of the right to physical integrity but also of the right to sexual identity
under the Convention.
Since gender identity is diverse, it can be argued that the scope of individualinterests in receiving legal recognition of gender status in accordance with [one’s]
gender identity lacks clarity; however, with respect to the individual interest of aperson with gender identity disorder defined by Article 2 of the Act in receiving
legal recognition of gender status in accordance with the one’s gender identity, its
scope is not necessarily unclear. Furthermore, if we were to adhere to the idea thatan individual right will not be recognized as a new fundamental human right basedon the second sentence of Article 13 of the Constitution if the scope of individualinterests it bestows is even slightly unclear, then it would be difficult to recognize
a new fundamental human right that is not specifically enumerated in theConstitution. Until now, this Court has clearly recognized the “freedom not to have
one’s appearance/demeanor (...) photographed without reason” (Supreme Court ofJapan (a) No.1187 of 1965, Decision by the Grand Bench dated on December 24,
1969, Vol. 23, No. 12, p.1625 of the Supreme Court Cases Reports Compilation
Criminal Section), the “freedom from being compelled to be fingerprinted without
reason” (Supreme Court of Japan (a) No. 848 of 1990, Decision by the Third Petty
Bench dated December 15, 1995, Vol. 49, No. 10, p. 842 of the Supreme Court
Cases Reports Compilation Criminal Section), and the “freedom not to havepersonal information disclosed or published to third parties without reason”(Supreme Court of Japan (o) No.403 of 2007, (Ju) No. 454 of 2007, Decision by
the First Petty Bench dated March 6, 2008, Vol. 62, No. 3, p. 665 of the Supreme
Court Cases Reports Compilation Civil Section), each as a new fundamental humanright based on the second sentence of Article 13 of the Constitution. In each case,

33

1095

1100

1105

1110

1115

1120

1125

we used the uncertain concept of “without reason”, which is by no means clearly
defined, and the definition of the term is a controversial academic topic and often
subject to litigation. Furthermore, the outer boundaries of the fundamental humanrights guaranteed in articles other than Article 13 of the Constitution are by nomeans clear, as is obvious when considering freedom of expression and freedom of
religion, and the majority of research by constitutional scholars has focused on thepros and cons of various interpretations of the boundaries of the fundamental humanrights guaranteed under the Constitution. Just as the advent of search engines andSNS has necessitated a new discussion on the scope of freedom of expression, thescope of fundamental human rights may change as social conditions change,
including as a result of advances in technology, and efforts to determine thechanging scope must be left to judicial precedents and academic theories.
Furthermore, the fact that gender identities can be diverse is not a situation uniqueto Japan, as the Federal Constitutional Court of Germany and the European Courtof Human Rights have recognized, as mentioned above, the right to have one’s
gender treated in accordance with the one’s gender identity as a fundamental humanright, rather than refusing to recognize such a right because of the ambiguities
surrounding the scope of the right, and they likely did so because they decided torecognize the core part of the right to be treated in accordance with one’s gender
identity as a fundamental human right and left clarification of its exact scope tosubsequent judicial decisions and academic discourse.
In addition, if we were to imagine a situation where the gender of a person whose
gender identity and biological gender match is mistakenly recorded in his or her
family register as a different gender from one’s gender identity, and if he or she is
not allowed to correct it and has to accept a legal gender that is different from one’s
gender identity for the rest of one’s life, most people would likely agree that theinterest of receiving legal treatment in accordance with one’s gender identity isessential to one’s personal dignity. Furthermore, although the total number ofapproved Gender Status Change Rulings has exceeded 10,000, there is no indicationthat this has caused societal confusion, and family registers in which a change oflegal recognition of gender status are recorded based on the Act and are not open to
the public, and since the legal gender is changed to match the appearance or namethat has already been changed, it is difficult to imagine that the rights of others are
violated due to a change in legal recognition of gender status of a person withgender identity disorder. Thus, it seems reasonable to assume that Article 13 of the

34

1130

Constitution guarantees the interest of persons with gender identity disorder toenjoy legal recognition of gender status in accordance with their gender identity.
4.

1135

1140

1145

1150

1155

1160

In cases where there are special circumstances, such as a permanent loss of gonadal
function due to the administration of anti-cancer drugs or other reasons, therequirements of the Provision can be fulfilled by loss of reproductive ability withouta gonadectomy. The requirements for Item 5 can also be satisfied without surgery
through hormone therapy or other similar methods. Surveys have shown this [to betrue] among many cases involving individuals who have received a Gender Status
Change Ruling to change their gender status from female to male. Nonetheless,regarding Item 5 as well, surgery is usually required in the case of a person seeking
a Gender Status Change Ruling to change their gender status from male to female,and that surgery is highly intrusive, poses a threat to physical health and can be lifethreatening. Furthermore, even if surgery is not required to fulfill the requirementsof Item 5, hormone therapy performed to satisfy such requirements is also
associated with inducing risks of serious side effects. Therefore, Item 5 does notdiffer from the Provision in that it also forces persons with gender identity disorderto make a grave choice to either receive legal recognition of [one’s] gender statusin accordance with one’s gender identity or maintain the freedom not to have one’s
body intruded. On the other hand, societal issues that may arise if Item 5 isabolished should, of course, be carefully considered, but as indicated in thedissenting opinions of Justice Miura and Justice Kusano, they do not seem to holdsufficient weight as justification for [subjecting persons with gender identity
disorder to] such a grave choice as described above. Therefore, I agree with thedissenting opinions of Justice Miura and Justice Kusano in holding that Item 5 isalso unconstitutional, as well as the Provision.
And since it is clear that the appellant satisfies the requirements of the Act otherthan the Provision and Item 5, I believe that the original decision should be reversed
and a judgment granting the petition shall be made.

（Presiding Justice: Saburo Tokura, Justice Atsushi Yamaguchi, Justice Takuya Miyama,
Justice Mamoru Miura, Justice Koichi Kusano, Justice Katsuya Uga, Justice Michiharu
Hayashi, Justice Kazumi Okamura, Justice Yasumasa Nagamine, Justice Ryosuke Anami,
Justice Eriko Watanabe, Justice Masaaki Oka, Justice Toru Sakai, Justice Yukihiko
Imasaki, Justice Akira Ojima）

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