Imagine doing everything by the rules, but finding out there are even more rules that you weren’t even aware existed. Even worse, you find out that these rules keep you from being legally recognized as the parent of your children. What would you do?
You’d very likely fight all the way to the highest court in the land, which is exactly what a trans woman in Japan has done.
On June 21, Japan’s Supreme Court issued a unanimous ruling from its Second Petty Bench (consisting of four judges, while the Grand Bench features the full panel of 15), ordering the country to recognize a trans woman as the “father” of a child born through use of in vitro fertilization following her legal transition from male to female.
In an earlier proceeding at the Tokyo High Court, the trans woman was found to have standing to be recognized as the father of another child that was born before she had legally transitioned. However, the same court had ruled against her for the younger child born post-transition. She appealed to the Supreme Court, who then decided in her favor.
The results of this case can be seen as a positive move forward for trans rights in Japan and, coupled with the Supreme Court’s earlier decisions overturning a major restriction on legal gender transition ( available at Unseen Japan), will hopefully go to ease the lives of trans people in the country.
Unfortunately, this case involves a few complicated twists and turns, and while every care will be taken to keep things clear, there are a few features of the case which delve into deep corners of Japanese law. So, please, bear with us.
Also please note that What The Trans will be following the court’s lead in redacting names and dates, so as to avoid revealing personally identifying information about the petitioners. Reporting that includes such details can be found elsewhere, but given the sensitive nature of the case, and the fact that it involves children, we will not be relating this kind of information to readers directly.
For those who want the TLDR version of the Supreme Court decision, here it is:
Japanese law places emphasis on biological relations, not whether a person is legally male or female, and as a result, denying a person the ability to be recognized as the parent of a child born post legal transition goes against the welfare and interests of the child. Further, there are no rules in place preventing such recognition. Therefore, the trans woman should be legally recognized as the father.
Let’s run through the details leading up to the case as shown in Tokyo High Court and Japanese Supreme Court documents:
To begin with, the trans woman at the center of the issue, before beginning medical transition, chose to have sperm frozen in order to have a biological child with someone at a later date. Following this, she got a legal name change and began HRT. Sometime during this process, she met the woman who would become the future mother of her children. They decided to use some of the frozen sperm in order to have a child, and thus was born their first daughter. However, at the time, the trans woman was not registered as the “father” in the family registry, and that entry was left blank. (Note that, as the child was born out of wedlock, this itself would not have been entirely unusual in Japan.)
Sometime after this, the trans woman received gender affirming genital surgery. However, out of concern for the stigma and hardships often faced by single mothers, the couple decided to get married. Unfortunately, in order to pursue legal transition under the country’s “Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder” (which I will refer to as the “Special Case Law” below and is available in English), the two needed to divorce, which they did. Afterwards, the trans woman applied for and received legal change of sex.
The couple then had another child using the frozen sperm, eventually welcoming their second daughter into the world. It was at this time that they attempted to have the trans woman recognized as the legal father of both their first and second child. However, the town where the children’s family registries were held refused to accept the applications, and the space for “father” on both registries were left blank. The reason the offices gave for this was that, because the father had legally transitioned, it didn’t matter if she was the biological parent of the children or not: to be recognized as the children’s “father”, she needed to be legally male, which she no longer was.
In other words, this trans woman who, for all intents and purposes, had played by the rules had walked into what looked like a Catch 22 in Japanese law: you may legally transition, but you forfeit your right to be the biological parent of your children.
Or so it seemed.
On 19 August 2022, the Tokyo High Court ruled that despite the Special Case Law stipulating that a person could not have “any children who are minors”, it also stipulates that legal transitions does “not affect the personal status or any rights or obligations that arose prior to a ruling of change in recognition of gender status.” The Tokyo High Court interpreted this to mean that, even though the trans woman had not applied for legal recognition of the child pre-transition, she was still fully within her rights to claim parentage of the child post-transition.
However, the same court upheld an earlier lower court ruling, which said that since she had legally transitioned before her second daughter was born, she was no longer able to be placed on the family registry as her “father”, as she was no longer legally male.
Since the Tokyo High Court decision solved the issue of the first child, the Supreme Court decision focuses on the second. The justices found that Japanese law does not in fact stipulate that a person needs to me male in order to be recognized as a “father”.
They went on to state that, following the introduction of legal gender change into the law and the advances of reproductive medicine, it had become possible for a parent to not have the same legal and biological sex. They also noted that the law places a great deal of emphasis on blood relations where parent-child relationships are concerned. In other words, the law is centered on recognition of biological parents, regardless of their legal sex.
The court continued by outlining the numerous disadvantages a child who cannot have their legal relationship with their parents recognized face, including an inability to receive “guardianship, upbringing, and dependence”, as well as having legal rights to inheritance blocked. They conclude that this would “clearly go against the welfare and interests of the child.”
Therefore, in order to uphold the interests of the child, and as there are no legal reasons to deny it, the trans woman should be recognized as the legal father.
This appears to be a legal first for Japan, and a large clarification of trans rights in the country.
