As the Japanese Diet (Japan’s parliament) has ended its normal legislative session for the year with quite a bit of unfinished business, there will almost certainly be an extraordinary legislative session come fall. Of note, there are already reports as to what sorts of things lie in wait regarding trans rights on a national level. What shape these take will likely be affected by the departure of Prime Minister Kishida, who oversaw the passage of the so-called LGBT Understanding Promotion Act last June ([1]).
The largest piece of news is that Japan’s ruling coalition is finally moving to revise the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder, which governs change of legal sex for trans individuals in the country. This would be the first update of the Act in over 20 years. The requirements the Act has for legal sex change at present, beyond receiving a diagnosis of “gender identity disorder” (sic), include:
- Being 18 or older (originally 20)
- Being unmarried
- Having no children who are minors (under 18)
- Having been sterilized by surgical or other means
- Having “a body which appears to have parts that resembles the genital organs of those of the Opposite Gender”
Recently, Japan’s courts have heard trans plaintiffs and their arguments that certain portions of the Act are unconstitutional, and have found them to indeed be so in some instances. The largest victory came last October in the form of the Supreme Court overturning the requirement for sterilization. Another victory, one we reported on, came from a trans woman seeking to be legally recognized as the father of two children born before and after her legal transition using frozen sperm, in some ways nullifying the effect of the requirement for a person to have no minor children. More recently, the Hiroshima High Court found a trans woman can change her legal sex without receiving vaginoplasty, noting that the requirement was likely to be unconstitutional ([2]). Another challenge has begun at the Kyoto Family Court to overturn the requirement that a person be unmarried.
In response to the Supreme Court decision on the sterilization requirement, a bill was submitted to the Diet by the Constitutional Democratic Party, a minority party generally seen as more progressive party than the ruling coalition ([3]). This bill, submitted in June, seeks not to replace the Gender Identity Disorder Special Cases Act outright, but to amend its language by removing surgical and sterilization requirements as well as the requirement for a person to have no minor children. The requirements to be a legal adult and to be unmarried would remain. According to the House of Representatives’ website, the bill remains in committee for further debate following the close of the legislative session.
More recently, full revisions have been proposed from groups within the Liberal Democratic Party (LDP, Japan’s long-ruling conservative party) and the Komeito, a coalition partner of the LDP.
Only a few details of the LDP proposal have come out via news outlets, but the major changes as outlined in June by 47 News ([4]) appear to include removing the requirement for sterilization and genitalia resembling the target sex, while adding requirements to live as the target gender for a certain amount of time in addition to a medical diagnosis. Earlier discussions within the LDP reported on in April by Nikkei ([5]) featured the inclusion of both a requirement to live in-gender and receive treatment under a qualified doctor for gender incongruence for at least 10 years.
The proposal from the Komeito, the LDP’s ruling coalition partner, came to light from a post on Twitter by Komeito MP Taniai Masaaki, head of the party’s SOGI Project Team, but appears to largely mirror the LDP’s. The proposal notes that removal of surgical requirements with no other measures in place may lead to concerns over “imposters” abusing the system. How these “concerns” are meant to be addressed is unclear, although the proposal mentions the need to consider creating new requirements that are not restrictive as well as establishing “greater validity” of diagnosis.
The requirement in the LDP proposal to live in-gender is what is otherwise known as a Real Life Experience (RLE) [6]. Whether a requirement for a 10 year RLE will find its way into the final bill is unclear, but this would be a massive rollback to the current state of affairs, surgical and other requirements aside. Japanese law does not currently explicitly require any kind of RLE, nor does it define any form of “treatment” outside of diagnosis, sterilization, and genital surgery.
For those unfamiliar, the RLE is an obsolete requirement to live as one’s target gender for a specified amount of time before certain forms of care are provided. It appeared in early versions of what was to become the WPATH Standards of Care, but was subsequently removed and does not appear in the current 8th edition.
Within Japan, diagnosis and treatment are carried out using the Japan’s Society of Psychiatry and Neurology’s guidelines for trans care, currently in their 4th edition and produced in 2018 based on the earlier WPATH 7th edition. These guidelines refer to an RLE, but in a seemingly limited scope. As part of therapy, it is to be undertaken without a specified time frame, and isn’t a requirement for care outside of genital surgery. It also specifies that the RLE is to allow patients to test the waters of living in-gender, and can be done in situations where there is little to no risk. Where genital surgery is being considered, a one year RLE is listed as a requirement, but specifies it only need be conducted within the confines of private life. These generally follow recommendations in the WPATH 7th edition Standards of Care, with a few differences (WPATH was much clearer that a person is to live in-role in every aspect of life for genital surgery, for example). In short, the RLE as envisioned by the Japanese standards are much more exploratory than they are stringent.
Should an RLE be mandated as a requirement for legal transition, there are numerous considerations beyond treatment that should no doubt be addressed first. For starters, there are no laws in place in Japan that specifically address discrimination based on sexual orientation or gender identity ([7]). While governmental guidance for employers does exist that offers some protections, trans people could still be placed at a large social disadvantage should they choose to work in their identified gender. In addition, as discussed below, there are also proposals to restrict trans use of gendered spaces, potentially beyond what is currently in place. A lack of workplace protections and restrictions on daily life could be seen as going against the concept of a government-mandated RLE. Without the ability to participate as fully as possible in society as their target gender, and while placing oneself at great risk while doing so, a lengthy RLE could wind up merely encouraging desistance rather than lowering barriers.
Apart from and in advance of these reform proposals, a bill which will likely limit trans people’s access to single-sex spaces was announced for possible submission during the Diet’s extraordinary session in the fall ([8]). The bill is being written by the “Parliamentarian Alliance to Protect All Women’s Peace of Mind and Safety and Fairness in Women’s Sports” (全ての女性の安心・安全と女子スポーツの公平性等を守る議員連盟). It would write into law that use of “special facilities” such as public bathing facilities (including the country’s many hot springs) are to be sex-segregated based on “bodily features”. That is, use of these facilities would likely be determined by visible external signifiers of sex, although the exact wording of the bill has yet to be revealed. It is also currently unclear whether these restrictions would extend to other facilities such as public toilets, although the possibility exists. (Note: to the best of our ability to verify, trans toilet usage in the country for those who have not had GRS is currently a legal gray area, although gender neutral facilities are relatively abundant in larger cities.)
In a nation where public baths are so ubiquitous, you might be wondering whether there aren’t already regulations in place that cover this. The answer is, unsurprisingly, yes! Current guidance handed down by the country’s Health and Welfare Ministry on 23 June 2023 asks facilities to do this already in public bathing facilities. The guidance itself actually does nothing more than clarify existing laws and guidance, and isn’t anything new.
It goes without saying that a law such as the one being proposed may wind up being used to target and harass cis rather than trans people, as has been the case in places outside of Japan where similar laws have been passed, as well as to target trans women more so than trans men. There also appears to be nothing addressing trans and gender nonconforming visitors to Japan from overseas, who would also be subject to the law even if they carried ID stating their legal gender. This could potentially lead to confusion among travelers in addition to situations of misunderstandings and harassment.
*All websites last accessed at time of publication of this article
References and citations:
[1] “Japan Prime Minister Fumio Kishida will not run for party reelection”, CNBC, 13 August 2024. [2] “Court in Japan allows trans woman to officially change gender without compulsory surgery”, AP News 12 July 2024 [3] 「トランスジェンダーの性別変更要件を緩和する「GID特例法改正法案」を衆院に提出」from the Constitutional Democratic Party website. [4]「性別変更に新要件提起 自民報告書、特例法改正で」, 47 News 27 June 2024 [5]「10年以上別の性別で生活 特例法の要件、自民議連提言」日本経済新聞, Nikkei 9 April 2024 [6] Justin Cascio, “Origins of the Real-Life Test“, TransHealth, 20 January 2003 [7] 山本真生子「性的少数者の雇用をめぐる問題」国立国会図書館 調査と情報, 28 May 2024[8] 「公衆浴場利用「身体特徴」で区別 自民保守系が法案作成に着手」Kyodo, 13 June 2024
