On 16 July 2024, a trans woman petitioned the Kyoto Family Court to allow her to legally transition while remaining married, making the case that the requirement to be unmarried is unconstitutional. A description of the case is available on Call4’s website here (Japanese/English) and a PDF of the petition available here (Japanese). Call4 is a legal advocacy support group in Japan.
According to the petition, the plaintiff has already fulfilled all of the current requirements under Japanese law, including having undergone GRS (although this requirement has already been struck down in an earlier case for being unconstitutional). The only requirement not fulfilled under the “Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder” is being currently unmarried (Article 3-1-ii).
The spouse of the plaintiff has indicated in a statement to the court that she wants to remain in a married relationship because she is attracted to “who the person is, not their gender”.
A similar case was brought before the 2nd Petty Bench of the Japanese Supreme Court, but was unanimously rejected by a decision rendered on 11 March 2020 (PDF, Japanese). The reason given was that marriage was currently only recognized between couples of the opposite sex, and that it was not unreasonable to say that allowing what would amount to same sex marriage via transition would create confusion in the marriage system.
In this new case, the plaintiff’s arguments center on the unconstitutionality of individual requirements of the current act. The petition also points out the importance of marriage to both the individual and society. In addition, it raises the fact that the defacto ban on same sex marriage in the country is currently being challenged, with lower courts finding the current state of affairs unconstitutional.
As this case makes its way through the courts, it is likely that the act will be revised, although in what way is still unclear. Groups of lawmakers in different parties are reported to be making their own drafts of replacement legislation. We will be reporting on these developments as they become clear.
