Summary

The procedure in Japan for changing an individual’s legal gender is regressive and harmful. It rests on an outdated and pejorative notion that a transgender identity is a mental health condition, and requires transgender people who want legal recognition to undergo lengthy, expensive, invasive, and irreversible medical procedures. The relevant legislation—known as the “Gender Identity Disorder Special Cases Act”—is contrary to international human rights law and international medical best practices. And while some trans people in Japan desire a diagnosis of “Gender Identity Disorder” (性同一性障害) (GID) and to undergo the medical procedures listed in the law, many do not—and should not be required to do so.

“Transgender” is an inclusive term for anyone whose sex assigned to them at birth does not conform to their lived or perceived gender. It refers to people for whom the designation as “female” or “male” on their birth certificate does not align with the gender that they are most comfortable expressing or would express, if given a choice.

Human Rights Watch interviewed transgender people in Japan who described their struggles to fit into rigid school systems designed around strict gender binaries, to seek and obtain employment, to engage healthcare providers, and to raise families in accordance with their basic rights. The existence of a law in Japan allowing transgender people to change their legal gender signals the government’s willingness to engage with and support transgender people. But Japan’s government needs urgently to address and fundamentally revise the legal recognition process that remains anchored to a diagnostic framework that fails to meet international standards and has been roundly criticized and discredited worldwide. The requirement that a transgender person not have underage children if they wish to secure legal recognition of their gender identity violates transgender people’s right to private and family life. Mandatory surgical interventions amount to coercion. And legal gender recognition is an essential element of other fundamental rights—including the right to privacy, the right to freedom of expression, rights related to employment, education, health, and the ability to move freely.

Those interviewed for this report also described how the GID Special Cases Act itself is a barrier to self-respect and acceptance by society. “It is definitely a system that is wrecking people’s dignity as a human being,” one said. Another transgender man said he believed the law was designed to exclude trans people “in order not to admit the exceptions and so as to keep homogeneity.”

Japan’s national government and courts, including the Supreme Court in 2019, have in recent years repeatedly used pejorative myths and stereotypes in their analysis of transgender peoples’ rights. For example, the government and Supreme Court have expressed concerns related to trans men becoming pregnant, saying they “may cause confusion in society ” as justification to uphold the law’s sterilization requirement.

Japan’s GID Special Cases Act was drafted in 2003 and came into force in 2004. For that era, it is not unique. Other legal regimes around the world from that period contain similar discriminatory and abusive provisions. Legislatures, domestic courts, and regional human rights courts and bodies have in recent years found that such requirements violate human rights law. Medical expert bodies have, similarly, urged governments to remove medical requirements from legal gender recognition procedures. Most recently, the World Health Organization (WHO) published its new International Classification of Diseases, which removes “gender identity disorders” from the “mental disorders” section much like the American Psychological Association did with “Gender Identity Disorder” in 2012. This progress, as well as international human rights standards, gives Japan a roadmap for reforming its own law.

Achieving the right to legal gender recognition is crucial for transgender people to leave behind a life of marginalization and enjoy a life of social equality and dignity. A simple shift toward allowing people autonomy to determine how their gender is expressed and recorded is gaining momentum. The law should not force people to carry an identity marker that does not reflect who they are. It should also not force transgender people to undergo unwanted medical procedures to be recognized or achieve any of the other associated rights.

The Japanese government should urgently reexamine its law and revise it according to its international human rights obligations and medical best practices to allow transgender people a transparent and quick administrative procedure to change their legal gender.

 

Recommendations

The government of Japan should work urgently across ministries to realize the recommendation put forward by the United Nations independent expert on sexual orientation and gender identity during his 2018 address to the UN General Assembly. The independent expert called for the elimination of abusive requirements as prerequisites for change of legal sex or gender, including:

• Forced, coerced or otherwise involuntary sterilization;
• Medical procedures related to transition, including surgeries and hormonal therapies;
• Undergoing medical diagnosis, psychological appraisals or other medical or psychosocial procedures or treatment;
• Requirements relating to economic status, health, marital, family or parental status; and
• Any third-party opinion.

To the Ministry of Justice

• Revise Law 111 of 2003, the GID Special Cases Act, to bring it into accordance with international human rights standards and medical best practices so that individuals’ gender marker in the family registry can be changed without having to satisfy any medical conditions. In particular, abolish the current conditions of sex reassignment surgery and irreversible infertility, as well as the requirement that applicants have no underage children.
• Ensure that legal recognition of transgender people’s gender identity applies to all aspects of people’s lives.
• Recognize that it may be in the best interest of some transgender children and young adults to change their legal gender before the age of majority (currently age 20 and beginning April 1, 2022, age 18), and ensure that transgender children are not excluded from the possibility of applying for legal recognition of their gender identity. Procedures for the consideration of transgender children’s applications should include a mechanism for the transgender child to give their opinion on the need to change their legal gender. The child’s freely expressed opinion needs to be given due weight. In line with Japan’s obligation under the Convention on the Rights of the Child, the relevant procedures should be designed in such a way as to acknowledge that as children grow and acquire capacities, they are entitled to an increasing level of responsibility for the regulation of matters affecting them.
• Ensure that the revised legal gender recognition law does not require trans people to be single in order to be legally recognized according to their self-declared gender identity.

To the Ministry of Foreign Affairs

• Invite the UN independent expert on sexual orientation and gender identity to visit Japan and meet with transgender people, service providers, and government interlocutors.

To the Ministry of Health, Labor and Welfare

• As a matter of urgency, issue a public statement indicating that the ministry will adopt the World Health Organization’s new category of “gender incongruence” and work with the Ministry of Justice to ensure that the GID Special Cases Act is revised in accordance with the WHO’s International Classification of Diseases, version 11. 
• With the Ministry of Justice, launch a process of revising the GID Special Cases Act to institute a legal gender recognition procedure based on an administrative act of self-declaration of gender identity.
• Ensure that transgender people have access to the medical and psychological assistance and support they require, and that such support and assistance is available to transgender individuals within a reasonable time.
• In consultation with transgender people, ensure that all medical interventions related to gender transition for transgender people are covered by health insurance schemes.
• Ensure that training is available to health service professionals, including psychologists, psychiatrists and general practitioners, as well as social workers, with regard to the specific needs and rights of transgender persons and the requirement to respect their dignity.

 

Methodology

Human Rights Watch conducted the research for this report between August and December 2015 and additional research between July and November 2018 with individuals from 14 prefectures in Japan. During the time period that elapsed between the phases of research, Human Rights Watch engaged UN Special Procedures regarding Japan’s legal gender recognition procedure, eliciting a response from the government. The law and its implementation has not changed since 2015, when the initial interviews were conducted, so the facts presented remain relevant to analysis of the law today.

Researchers conducted interviews with 48 transgender people, as well as interviews with lawyers, health providers, and academics.

Human Rights Watch researchers obtained informed consent from all interview participants, and provided explanations in Japanese about the objectives of the research and that interviewees’ accounts would be used in a report and related materials. Interviewees were informed that they could stop the interview at any time or decline to answer any questions they did not feel comfortable answering.

No compensation was paid to either survey respondents or those who participated in face-to-face interviews. Human Rights Watch reimbursed public transportation fares for interviewees who traveled to meet researchers in safe, discreet locations. The interviews were conducted in Japanese, or with Japanese-English interpretation. All interviews were conducted privately, with participants interviewed alone.

In this report, pseudonyms are used for all transgender interviewees except those who expressed a strong preference that their real names be used.

Human Rights Watch engaged the United Nations Office of the High Commissioner for Human Rights Special Procedures branch and two UN experts wrote to the Japanese government following our submission. That correspondence, and the government’s response, is analyzed in this report.

Human Rights Watch wrote to Japan’s Ministry of Justice in October 2018 to share our research findings and preliminary recommendations for this report.

 

I. Gender Identity and Legal Recognition

“Transgender” is an inclusive term for anyone whose sex assigned to them at birth does not conform to their lived or perceived gender. It refers to people for whom the designation as “female” or “male” on their birth certificate does not align with the gender that they are most comfortable expressing or would express, if given a choice.

Everyone has a gender identity. Most people identify as either female or male, in line with what they were assigned on their birth certificates. Some may identify as a gender that is different from the one they were assigned at birth, and some may identify as both, or neither. If someone is labeled “female” at birth but identifies as male, he is a transgender man (or transman). If someone is labeled “male” at birth but identifies as female, she is a transgender woman (or transwoman). In Japan, the identity term “x-gender” is used by some people. It roughly translates to “non-binary” or “genderqueer” in English, signifying a neutral gender identity that is neither male, nor female. The term “cisgender” (i.e., non-transgender) is used for someone who identifies with the same gender, male or female, as the sex they were assigned at birth.

Historically, many medical systems, including those supported by the World Health Organization (WHO), have categorized being transgender as a mental health condition. However, this has been gradually changing, and the WHO has updated its standards—as discussed later in this report.

There is widespread consensus among medical and psychological experts, consistent with the views of transgender communities around the world, that experiencing gender as different from that which was assigned at birth is not a disorder or a disease—but rather a natural variation of human experience.[1]

Transgender people, in Japan and elsewhere, experience mental health problems like everyone else. Research suggests that transgender populations experience higher rates of some mental health problems.  Transgender people incur mental health problems from stigma, discrimination, bullying, and harassment that are not inherent in gender non-conformity. These conditions may require diagnoses in order to receive treatment, but they are separate from the experience of gender identity as such.

Transgender people, as per the usage in this report, are not experiencing a form of mental health condition; rather, they experience a deep sense of identification with a gender different from the sex assigned to them at birth. They may or may not take steps to physically alter their bodies, such as undergoing hormone replacement therapy (HRT) or sex reassignment surgery (SRS). They may or may not seek mental health care related to their transition or associated anxieties.

Gender identity is not the same thing as sexual orientation. Like cisgender people, transgender people may identify as heterosexual, homosexual, bisexual, or asexual. Transgender people, like anyone else, can form relationships with people of all other genders.

While there have been some changes in national laws recognizing and protecting transgender people in recent years,[2] many countries, like Japan, still enforce outdated, discriminatory, and coercive policies. As this report details, legal gender recognition procedures such as Japan’s, which mandate medical procedures with irreversible consequences and construe gender identity as a “disorder,” run afoul of international human rights law. Requirements of a minimum age, parental status, and relationship status for undergoing processes to change legal gender are discriminatory.

Changing such laws to respect transgender people’s right to self-declared legal recognition is a human rights imperative. Due to upcoming changes in global diagnostic systems, as set by the WHO, it is also important for Japan to update its legal gender recognition system to come in line with modern medicine. As detailed below, a simple shift toward allowing people autonomy to determine how their gender is expressed and recorded is gaining momentum globally. The law should not force people to carry an identity marker that does not reflect who they are. It should also not force transgender people to undergo unwanted medical procedures to be recognized or achieve associated rights. And it should not construe gender identity as a medical condition in need of diagnosis.

Japan’s Legal Gender Recognition System

Legal gender recognition in Japan is regulated by Law No. 111 of 2003, the “Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder”—or the GID Special Cases Act. The law came into effect on July 16, 2004.[3]

The law requires a diagnosis of “Gender Identity Disorder” (GID) before any transgender person can apply to secure legal recognition of their appropriate gender. “GID” is defined in the law as:

A person, despite his/her biological sex being clear, who continually maintains a psychological identity with an alternative gender, who holds the intention to physically and socially conform to an alternative gender.[4]

The process requires the person to receive “concurrent diagnoses on such identification with the opposite gender 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.”[5]

The legal gender recognition decision is made by the Family Court. In addition to providing a certificate attesting to the fact that the individual has been diagnosed with GID, an applicant to the court must meet the following qualifications:

• Be 20-years-old or older;
• Be presently unmarried;
• Not presently have any underage children;
• Not have gonads or permanently lack functioning gonads; and
• Have a physical form that is “endowed with genitalia that closely resemble the physical form of an alternative gender.”[6]

The GID Special Cases Act is the first legal gender recognition procedure Japan has ever had, and its adoption represented a pivotal moment in the Japanese government’s treatment of  sexual and gender minorities.[7] However, the procedure established under the law violates the rights of Japanese people  who wish to be legally recognized as having a different gender from the one they were assigned at birth.

In 1980, when the American Psychological Association published the third edition of the Diagnostic and Statistical Manual (DSM-III), psychiatrists in Japan embarked on translating it into Japanese. Karen Nakamura, an anthropologist, explained that there were “debates over what the proper Japanese term might be for the word ‘disorder’ which was used consistently through the DSM. The chief candidates were byô, shô, and shôgai.”[8] Shogai can be translated as “disorder” or disability” – an ambiguity that transgender advocates embraced in 1982 when the DSM-III Japanese version was published. According to Nakamura:

Part of the difficulty is that Japanese medical terminology does not always differentiate between impairment, injury, disorder, disturbance, pathology, and disability when translating these terms as shôgai. In any case, the obfuscation was a happy one for Japanese transsexuals as the DSM-III category of “gender-identity-disorder” became 性同一性障害, seidoitsusei-shogai.[9]

As the concept of GID entered Japanese medical practice and society, it provided an explanatory framework for transgender people to discuss and disclose their identity and access services. The GID diagnosis also became the basis for related legal developments, which culminated in the GID Special Cases Act. And while there was an emancipatory element in the law’s recognition of the experience of a gender identity that does not correspond with the sex one is assigned at birth, the law itself is inconsistent with international human rights law and medical best practices.

The GID Special Cases Act, while serving to acknowledge the existence of a population and allowing for their legal recognition, is a formidable barrier for transgender people in Japan. The requirement of a GID diagnosis is unscientific; the requirement of single marital status and not having minor children is discriminatory; and the requirement of surgeries that sterilize amounts to coerced sterilization. As legal scholar Hiroyuki Taniguchi noted in a 2013 article, “the Act reinforces gender binary not only in social contexts, but also at the physical level by requiring surgical intervention when it is not medically necessary.”[10]

Some transgender people may indeed want to undertake all or some of these actions as part of their transition. However, requiring all transgender people to do so is contrary to international law and a violation of transgender people’s basic rights. The law’s requirements are also regressive with regard to international medical and diagnostic standards. As analyzed later in this report, now that neither of the major international medical diagnostic systems acknowledge “GID” or “transsexualism” as a mental disorder, Japan legally mandating that transgender people obtain such a diagnosis amounts to coercion.

Such a shift may not be insignificant for individuals. As one transgender woman in Tokyo told Human Rights Watch:

I don’t think gender incongruency is a mental disease. However, many have their identity accepted by admitting they have some disorder. If gender incongruence no longer is a disorder, I think there are some who are afraid of losing the way to justify who they are.[11]

Dr. Jun Koh, a psychiatrist in Osaka who works with transgender patients, said:

In Japan, there is a background that social recognition advanced along with the spread of the medical model, in which treatments are carried out based on the diagnosis of a hospital or a clinic. If the medical model is denied, people think it’s about taste and preference – so then there is a chance of not being able to ensure the understanding of transgender being a diversity in gender seen everywhere in the world.[12]

However, while the framework may indeed provide a functional and preferred method for some transgender people to seek care and legal status, the requirements in the current law should not be applied to everyone.

In a 2016 report, the United Nations special rapporteur on torture said that the refusal of transgender people’s legal recognition in their appropriate gender “leads to grave consequences for the enjoyment of their human rights, including obstacles to accessing education, employment, health care and other essential services.”[13] The special rapporteur noted that,

In States that permit the modification of gender markers on identity documents abusive requirements can be imposed, such as forced or otherwise involuntary gender reassignment surgery, sterilization or other coercive medical procedures.[14]

The legal requirements for transgender people in Japan to obtain a GID diagnosis often involves unnecessary, arbitrary, and burdensome tests. The mandatory psychiatric evaluation and the law’s requirements that applicants be unmarried, sterile and lacking any minor children are inherently discriminatory. These conditions—and in particular the maltreatment many transgender people must accept in order to meet them— also amount to cruel and inhuman treatment and to a violation of transgender people’s right to health. The law forces all transgender people who want to secure legal recognition of their appropriate gender to secure diagnosis of a psychological disorder, to refrain from having children at any point during the two decades prior to securing recognition and to be unmarried. It forces many would-be applicants—including those who would not otherwise choose to take these steps— to undergo physically transformative surgical interventions, undergo sterilization, and contemplate the breakup of existing marriages.

Japan’s legal requirements are particularly harmful for transgender children. It sets a mandatory minimum age of 20 for achieving legal gender recognition. Legal recognition can only be given if the individual holds “the intention to physically and socially conform to an alternative gender,”[15] which sets children up to understand surgeries as inevitable and puts intense pressure on them to conform to gender stereotypes about what “male” and “female” bodies and behavior should look like.

These requirements cannot be squared with the principle that the best interests of children be a primary consideration in all administrative and legal decisions that impact them.[16] The GID Special Cases Act negatively impacts children’s rights to physical integrity, privacy, and autonomy. These problems are also reflected in how the government has interpreted the GID Special Cases Act with regard to gender non-conforming children in statements issued by the Ministry of Education[17], and the guidance issued to psychiatrists on GID patients.[18]

Japan’s current legal gender recognition procedure violates the basic rights of transgender people. It treats the fact of being transgender as a disorder that does not exist—one that transgender people are required to certify that they suffer from as a prerequisite to securing legal recognition. It forecloses legal recognition to transgender people who are married, who have underage children or who have the capacity to reproduce. Not only is this discriminatory, but it forces many transgender people who want to secure legal recognition of their gender identity to contemplate invasive surgical procedures they may not want and, in some cases, requires the breakup of their families.

As one transgender man in Kanagawa Prefecture told Human Rights Watch: “It is definitely a system that is wrecking people’s dignity as a human being.”[19]

Mandatory Psychiatric Evaluation

The GID Special Cases Act requires transgender people in Japan who seek legal recognition of their gender identity to obtain a diagnosis of GID as a prerequisite. Some people in Japan consider their gender identity to be a mental health condition and seek services accordingly.[20] However, such a framework can also stigmatize transgender people. Many of the people whom Human Rights Watch interviewed, including psychiatrists who work with transgender people, discussed this stigma. Our research also found that the process associated with obtaining a medical certificate for GID was itself burdensome and abusive in some cases.

Transgender people Human Rights Watch interviewed reported a variety of experiences in obtaining the GID diagnosis. For example, one was able to obtain the diagnosis certificate on their first visit to a psychiatrist,[21] while in other instances clinic staff and psychiatrists forced applicants to undergo a lengthy and humiliating procedure.

The 4th edition of the Diagnosis and Treatment Guidelines for “Gender Identity Disorder,” published by the Japan Society for Psychiatry and Neurology and last revised in January 2018, recommend three tests for a GID diagnosis:

1. A gender identity test, which is based on the testimony of the individual;
2. A biological gender test, which can contain an examination of chromosomes, an examination of hormonal action, an inspection of internal and external genitals, and “other examinations that doctors find necessary”; and
3. An exclusion of other diagnoses test to “confirm that the denial of gender identity/request for the surgery is not coming from schizophrenia nor other cultural, social, or occupational reasons.”[22]

The only test that contains a reference to the time it can take is test 1, which “may last until enough information will be collected.”[23] Our research found that for some applicants, the process can take an excessive amount of time.

Kiyoshi M., a 24-year-old transgender man in Tokyo, told Human Rights Watch of his year-long effort to obtain the GID diagnosis four years earlier, when he was 20-years-old. On his first visit to a gender clinic in Tokyo, the psychiatrist told him to write his personal history, then return a few weeks later with a series of photos of himself from when he was a toddler through to the present day. “At every session I had to fill out a 100-question questionnaire,” Kiyoshi M. said. According to him, the questions on the survey queried stereotypical understandings of gender-specific behaviors and appearances: 

“All of them were open ended questions about gender, such as ‘when I was little, people told me I was____’ or ‘if my parent died, I would react by ____.’”

Kiyoshi M. continued to visit that hospital for six months. “On my first time at the hospital, I told the doctor I wanted the diagnosis as soon as possible,” he said. “But the doctor said to come every two weeks, then even after six months they needed more time and said they couldn’t give [the diagnosis] to me so they told me to keep coming back.” After six months, he gave up and started going to a second hospital in Tokyo, where the psychiatrist at the gender clinic tested him through verbal therapy sessions and interviews for an additional six months before giving him the GID diagnosis. “Clinic staff constantly asked me at every step of the process, ‘Are you sure?’” he said.[24]

Yasuhiro D., a 30-year-old transgender man, traveled to a gender clinic 520 kilometers away from his home for six appointments over the course of two months, where he was subjected to psychiatric tests. “They showed me drawings and I had to talk to the therapist about them many times, it was extremely time consuming and repetitive,” Yasuhiro said. “The drawings were of several people and they asked me which ones looked like my family members.” Once he obtained the GID diagnosis certificate, he went to a clinic closer to Kyoto to request hormone therapy, but they told him he would have to redo all of the tests. “They said it was for a second opinion,” he said. “Then after that second opinion was affirmative, they sent me to an external psychiatrist for a third opinion.”[25]

Hanae T., a 29-year-old transgender woman living in the Ishikawa Prefecture, told Human Rights Watch that it took her nearly a year to get the diagnosis. “I saw the psychiatrist almost the whole year. I kept seeing the psychiatrist until right before the beginning of 2011. It was in December 2010 that I got the diagnosis of GID,” she said.[26]

Coerced Sterilization and Compulsory Surgery

The surgery requirement itself feels wrong. It feels a lot like a surgery to maintain order. Why do we have to put a scalpel through our healthy bodies just for sake of the country’s order? The requirements being incorporated like that into the system—that itself feels as though I am severely insulted or my human rights being neglected. It is humiliating.
—Transgender man in Kanagawa Prefecture, September 2018

I don’t want to [have surgery], to be honest. However, I have to just because it is a requirement for marrying in Japan. I feel pressured to be operated on—so terrible.
—Transgender man in Tokyo, August 2018

Legal requirements that transgender people undergo surgeries to alter the appearance and function of their bodies amount to coercion. That someone is forced to undergo surgical procedures to obtain legal recognition is itself coercive. And that someone is only afforded access to other rights, such as marriage, after having undergone surgery, is also coercive. Transgender people told Human Rights Watch they found Japan’s surgical requirement to be a substantial burden. Even those who wanted some of the procedures felt rushed onto the operating table by the law requiring them.

“Of course I want to change the gender on my official family register, and have relationships with my significant other,” explained a transgender woman in Tokyo. “But the walls that I have to overcome are just too big. Why do I have to go through so much struggles and challenges just by living?”[27] She said that once she considered the risks associated with the surgeries, she decided not to have them. “Once you start, there’s no going back. The surgery itself also has too many complications, and I would have to keep maintenance for life.”

For some, the surgery was the only gateway toward other rights—for example, the right to marry and enjoy the benefits that come with marriage. Takayuki G., a 24-year-old transgender man in Tokyo, explained: “When we get married, we can receive spousal [tax] deductions.”[28] He said that while he wanted to change his gender in the family register, he had not yet undergone the requisite surgeries because he did not want to. “I feel I am forced to be operated on to get a tax benefit. There are many advantages for marrieds, for example, tax deductions.”[29]

For many, the physical risks and impacts associated with the surgeries were a major barrier. “Another big thing is that I will become infertile if I get the procedure done,” said a 25-year-old transgender man in Tokyo who had not undergone any surgeries. “I am forced to choose between having kids and being lawfully recognized as the gender I associate myself with,” he said. “I am always wondering why this surgery must be part of the requirements. It’s not even like we live our everyday life exposing our genitals to the public.”[30]

A transgender man in Kanagawa Prefecture said he felt that his transition went smoothly because he had his family’s support and he knew what he wanted. However, he told Human Rights Watch, had it not been for the law requiring surgery in order for him to change his legal gender, he would have not undergone the operations. “It was a surgery that I underwent, questioning why I had to put a scalpel to my healthy body,” he said. “I was not able to accept my gender being female on the family register and with that being my top concern, I was inevitably forced to undergo surgery in order to change my gender marker.”[31]

He explained:

If there had not been the requirement of having to undergo surgery, I would have given more thought to it, collecting data and comparing. I would have made a decision when everything had really made sense to me. However, because it was a necessary requirement and because it was an urgent matter due to the fact that I was working, I wanted to change it as soon as possible.[32]

A transgender man in Fukuoka said:

I myself had decided to remove [my uterus] because I don’t want to get the female menstrual cycle. However, my friends around me, their parents are really against them having the surgery. Doing the surgery is a big matter. You could be risking your life. I want there to be an environment where it is possible for people to talk about wanting to change their gender on the family register, without having to do it. From our parents’ perspectives, it must be difficult to understand why we should have a scalpel put to our healthy bodies.[33]

Human Rights Watch interviewed transgender people in Japan who told us that they would not have chosen sterilization if they had had the option to have their gender legally recognized without doing so.

For example, Yasuhiro D., a 30-year-old transgender man in Osaka, said that the recent birth of his brother’s second daughter made him reflect on how his reproductive rights were compromised in his quest to be legally recognized as a man. “Since I had my ovaries when my first niece was born, I even thought about stopping the hormones to make my body able to have children,” Yasuhiro said. He explained:

I thought about this issue of having a child even as I sat waiting in the hospital for the SRS [sex reassignment surgery]. I didn’t have any doubt that I wanted to live as a man, but I also wanted to preserve my ability to have a baby. I had to choose between being legally recognized for who I am and keeping my body the way I wanted it.

He added, “I think a lot of transgender people want to have the surgery; however, having it as a prerequisite for LGR [legal gender recognition] means our reproductive rights are stripped away.”[34]

As Yasuhiro’s account illustrates, compulsory surgery requires transgender individuals who seek legal gender recognition to make an unacceptable choice between exercising their right to recognition as a person before the law and their right to bodily autonomy.

A transgender man who had undergone surgery that sterilized him said:

Back then, I was just really caught up with changing [the gender on] the family register that I could not think about that. But thinking about it now, if it was possible to leave the possibility of having children open, I would have. I really did not have the time to think everything through.[35]

Another transgender woman who has not undergone any surgeries said: “It’s my dream to have my own children. Of course, there are ways to get an adoption, but there’s still the significance of having your own genetic babies.” She explained that she had chosen to carry her documents marked “male,” which had resulted in hardship and discrimination, because she did not want to undergo the legally required surgeries to be recognized as female. “If I had to change my gender, then that would mean giving up all means of reproduction,” she said. “I’m a woman, but I’m not allowed to call myself the mother of my own children. To get the surgery or have children. This is a decision that none of us should be forced to take. It is a despair.”[36]

Others who were contemplating undergoing the law’s required procedures expressed a desire to change their gender, but trepidation about the procedures. For example, Tamaki I., a 27-year-old transgender woman in Osaka, said:

The hurdle is really high. I read that in America you don’t need to have surgery to change your gender; you can just change your gender on the family register.[37] If that becomes true in Japan, I would want to change my gender right now. I can’t understand why the government is asking for such high conditions. I do want to change my legal gender, but surgery has such a high risk, so I don’t know yet.[38]

Noriko R., 22, said: “I want to get my identification card changed. To change it on the family register, we have to get surgery. It’s really a lot of pressure for me.” She worried about the financial burdens: “It costs a lot, and I can’t rely on my parents for help. My transgender friends are waiting for surgery, but I can’t do that, so I feel like I’m becoming isolated, falling behind them.” Noriko said that everyone in her local transgender support group “has some level of pressure about the surgery. Everyone thinks we’ll have to undergo surgery in the future. That’s very tough for us.”[39]

Kiyoshi M., who obtained the GID diagnosis after he spent a year visiting two clinics, and was on hormones when Human Rights Watch interviewed him, but had not undergone surgery, said, “Ideally I would want to just change my legal gender right now. All of these procedures are putting a lot of strain on my body that I don’t want.”[40]

Others highlighted that the surgery requirement does not reflect the lived reality of trans people in Japan. A transgender woman in Tokyo said: “It’s not like getting the surgery will ensure that your life will be better. It’s also not like you show your crotch while you walk around everywhere, so it’s not that terrible.”[41]

Age Restrictions

The GID Special Cases Act bars all transgender people who are younger than 20, Japan’s age of majority (which will be 18 in April 2022), from securing legal recognition of their gender identity. People under 20 can obtain a diagnosis or in some cases a “preliminary diagnosis” of GID. Interviewees told Human Rights Watch they used their GID diagnosis certificates to successfully advocate for access to education according to their gender identity—including through restroom access and school uniforms according to their gender identity. 

People who have reached Japan’s age of majority can independently pursue legally required surgical procedures without parental consent. After obtaining a GID diagnosis, a process that varies in length, the subsequent requisite medical procedures can take years and carries considerable costs. As a result, legal gender recognition is sometimes not possible until people have reached their mid-20s even though they have expressed their gender identity and desire to legally transition more than a decade earlier.

But without eliminating the mandatory GID diagnosis and medical interventions, simply reducing the age at which applicants can pursue legal gender recognition will be inadequate. Gender non-conforming children lack access to legal recognition and suffer abuses as a result. In addition, the rigid medical requirements for legal recognition as an adult creates significant anxiety for young people, evident in the accounts of individuals whom Human Rights Watch interviewed.

Japan’s legal age limit is discriminatory and does not allow for the best interests of the child to be considered. This can have a harmful impact on children who are exploring and questioning their gender. A strict age limit can also violate the right to education for those transgender children who desire to attend school according to their gender identity. As discussed below, in its 2015 statement on gender recognition, the World Professional Association for Transgender Health (WPATH) stated that “appropriate legal gender recognition should be available to transgender youth.”[42]

In the context of Japan’s education system, the state’s failure to accord legal recognition of transgender children’s gender identity contributes to their discrimination and degrading treatment. Both the age restriction and the rigid medical criteria are harmful to young people who instead need information, support, and safe spaces to explore and express gender—all elements of inclusive and supportive schools. Furthermore, the current requirement of mandatory medical procedures can cause gender non-conforming children to feel intense pressure to pursue otherwise unwanted medical procedures at a young age.

Japan’s schools feature deeply engrained gender separation based on stereotypes. Nearly all junior high and high school students are required to wear gender-specific uniforms, and school activities are often gender-segregated.[43] For children exploring their gender identity or those who identify as transgender, such an environment can be harsh. Itsuki Dohi, a transgender high school teacher, said:

The Japanese school system is really strict with the gender system. It imprints on students where they belong and don’t belong.  In later years, when gender is firmly tracked, transgender kids really start suffering. They either have to conceal and lie or act like themselves and invite bullying and exclusion.[44]

Additionally, the GID Special Cases Act mandate of psychiatric and surgical intervention for transgender people who wish to secure legal recognition of their gender identity can cause anxiety for young people. Dozens of interviewees said that their negative experiences in school when they were forced to dress and present as their birth-assigned sex instead of their gender identity informed their anxieties about the future, including university life and employment. Transgender children as young as 14 looked to the future with trepidation. Some children explained that while they do not necessarily want to undergo the medical procedures required by the GID Special Cases Act, it is currently their only route to social recognition, and—they hope—an end to years of abuse, discrimination and exclusion.

In 2015, the Ministry of Education sent a directive to all school boards titled “Regarding the Careful Response to Students with Gender Identity Disorder.”[45] The Education Ministry directive sends a serious message from the ministry about schools’ responsibility to care for transgender children. However, the directive focusses on diagnoses and medical institutions as the primary source of information about gender and sexuality. For example, the directive states: “The diagnosis and advice from medical institutions is a very crucial opportunity for the school to get a professional knowledge.” This reflects the government’s continued reliance on the harmful, pathological model of understanding transgender people’s gender identity as enshrined in the GID Special Cases Act.

The 2015 Education Ministry directive is official advice, and so its examples of support for schools to follow are nonbinding recommendations. Human Rights Watch interviews with transgender children in Japan revealed that school officials issue varied responses to transgender students’ requests to use facilities according to their gender identity. Enshrining a right to legal recognition of gender based on their self-declared identity alone would substantially improve the situation for transgender children.

Japan should recognize that it may be in the best interest of many transgender children to change their legal gender before they reach age 20. The law should set no absolute minimum age for legal recognition of a transgender person’s gender identity. Instead, the individual circumstances of each child should be assessed by appropriate authorities to determine whether it is in that child’s best interest to change their legal gender. The government should also amend its school-based policies and directives for transgender children to clarify that no child should be required to provide a diagnosis of GID in order to wear uniforms, or access school facilities or activities according to their gender identity.

Relationship Status and Parental Status Discrimination

Japan’s requirement that all applicants for legal gender recognition are single implies mandatory divorce for married transgender people who wish to be recognized. This is because Japan does not recognize same-sex marriages, which a gender transition would create. Such a requirement is discriminatory, and has been condemned by major human rights bodies, including the United Nations Human Rights Council in 2011 and 2014 reports.

The requirement that a transgender person not have underage children (under 20) if they wish to secure legal recognition of their gender identity violates transgender people’s right to private and family life and the right to found a family, and discriminates on those grounds.

The revision of the GID Special Cases Act in 2008 to clarify that transgender people seeking legal gender recognition must not have any children under 20 (previously the law mandated no children whatsoever), demonstrated that the government is willing to consider changes to the law, but it was an insufficient step.[46]

 

II. Impact of Japan’s Legal Gender Recognition System

The GID Special Cases Act is the first legal gender recognition procedure Japan has ever had, and its adoption represented a pivotal moment in Japan’s public debate on sexual and gender minority issues.[47] And while some activist groups and individuals support the mandatory procedures featured in the law, these have caused significant problems for others.

The diagnostic label of “GID” helped, in some cases, to explain gender identity to families. For example, one transgender man told Human Rights Watch that he pursued a medical certificate for a “GID” diagnosis in an effort to legitimize his transition in the eyes of his parents:

I came out to my parents during New Year’s, but they greatly opposed me. Even if my parents are reluctant to give me approval, I felt as though the certificate to indicate my gender would become beneficial when trying to persuade them. I am still going to the clinic, and the process has prolonged this long, unable to get the certificate. I am very worried that I won’t receive it [soon].[48]

However, for those who do not undergo the requisite diagnosis and procedures—or those who attempt to, but face barriers such as long delays, failures to obtain a diagnosis—operating in daily life with documents that do not match their identity and appearance causes significant hardship.

“I always try to hide this part of the paperwork whenever I hand it in,” said Aki T., a transgender woman in Tokyo. “Because there is a difference in my body and heart, many people around me get thrown. My heart sinks every time I have to submit any legal documentation, anywhere I go.[49]

Like in Aki’s experience, legal gender recognition is an essential element of other fundamental rights—including the right to privacy, the right to freedom of expression, rights related to employment, education, health, and the ability to move freely.

Access to Education

In 2016, Human Rights Watch published a report that documented bullying and exclusion of lesbian, gay, bisexual, and transgender students in Japanese schools.[50] The report noted significant barriers to accessing education experienced by transgender students, as well as several directives the Ministry of Education had issued in that regard in recent years. While the ministry’s attention to the issues facing transgender students is undoubtedly helping young people thrive, the policies and directives remain grounded in the current law—that is, they refer to trans students as “students with GID.”

In addition to this policy barrier, Japanese school culture, while undergoing important shifts in recent years,[51] remains rigid when it comes to gender norms. Most Japanese schools insist on conformity to strict gender norms as a matter of school policy with regard to uniforms, restroom access, information imparted in classrooms, and other mechanisms of gender norm enforcement.

Student activities are typically gender-segregated, though the degree to which schools enforce gender roles appears to vary. The anxieties this standard system causes transgender and gender-nonconforming students are intense. As one junior high student said, “Gender segregation is everywhere in school—roll call, uniforms, seating arrangement, and hair length are all dictated by gender.”[52] Peter Cave, an anthropologist who studies Japanese education, has documented how even in primary schools, gender differences in the treatment and social conditioning of students are apparent.[53]

Itsuki Dohi, a transgender high school teacher told Human Rights Watch:

The Japanese school system is really strict with the gender system. It imprints on students where they belong and don’t belong. In later years when gender is firmly tracked, transgender kids really start suffering. They either have to conceal and lie or act like themselves and invite bullying and exclusion.[54]

Kaoru M., a 19-year-old transgender woman in Setagaya, said that her school’s “firmly tracked” gender segregation left her isolated: “I expected in high school that there would be more mixing of boys and girls but there was complete social separation.” Kaoru was not allowed to wear a female uniform in high school but wore long hair and had what she described as a “feminized appearance.” She was able to join all-girls extracurricular activities but faced aggressive and scrutinizing questions and teasing from classmates. “I was isolated from both boys and girls,” she said. “There was nowhere to go for me.”[55]

A transgender woman in Tokyo said that the negative experiences she had in school impacted his life:

The disgrace I felt during school had discouraged me so much to the point where I wasn’t able to attend school any longer. In terms of education, I always believed that everything that adults say are always correct. But now, I know that whatever adults [like that] say is almost always incorrect. I had lived my life without hope.[56]

Some students told Human Rights Watch that their schools, to their credit, sought and followed guidance on ensuring transgender students’ rights. A lawyer in Tokyo said that several schools in the city had consulted with him on issues such as uniforms and restroom access when they became aware that they had transgender students, and as a result agreed that students would be able to wear uniforms and have access to lavatories and school activities according to their gender identity.[57] Such approaches by schools appear to be the exception rather than the norm.

School Uniforms

Most of Japan’s junior high and high schools require students to wear uniforms. The attire is gender-specific and the two options, male or female, are dispensed to students according to the sex they were assigned at birth. “The dress codes are usually very strict,” said Mameta Endo, a transgender man who has worked on issues facing LGBT youth in Japan. “The idea behind the uniform is that if you can’t wear it properly, you’re a bad student. It makes you an outcast.”[58]

In some instances that Human Rights Watch documented, students were able to request alterations to their uniforms; in a few cases, students were able to request a full switch of the uniform according to their gender identity. “Schools are really starting to be flexible,” a Tokyo-based lawyer said.[59]

Human Rights Watch, however, identified many agreements to alter uniform requirements that were not the result of consistently applied policies designed to respect students’ right to free expression of their gender identity, but rather due to the compassion of school officials, assiduous advocacy by parents, or in some cases the student’s presentation of their diagnosis with GID. For some transgender students and other children exploring gender identity, the strict uniform policy was an acute source of anxiety, leading to extended school absences and even dropouts. Said the Osaka-based psychiatrist Jun Koh:

Since middle schools and high schools typically require uniforms, this results in the coercion of transgender students, who have questions about their birth-assigned gender, to wear school uniforms that differ from their gender identity. Wearing uniforms result in the complete separation of genders, provoking feelings of gender denial. This leads kids thinking that their feelings are never respected, and it becomes difficult for them to have good self-esteem.  It is around this time [when transgender students start entering middle or high schools] that the number of transgender students seeking counselling increases.[60]

For example, Takeshi O. said that his anxieties about the female gender of his school uniform increased over time. “When I first started junior high school I didn’t question the uniform initially,” he said. “I progressively started to question it and by the third year I dreaded every school day because it meant I would have to put the skirt on.”[61]

All of these challenges facing transgender and gender non-conforming youth in Japan’s schools underscore the need to revise the GID Special Cases Act to accommodate and support transgender people regardless of their age.

University Education

In July 2018, news broke that some women’s universities in Japan were revising their admissions policies to admit transgender women. According to an article in the Nikkei Asian Review,

A panel of experts under the Science Council of Japan's law committee pointed out last year that denying transgender students’ admission to girls' schools and women's universities constitutes "an encroachment on their rights to learn." The panel includes representatives from women's colleges.[62]

Human Rights Watch reached out to Ochanomizu University in Tokyo regarding their stated intent to admit trans women. We inquired about their planned criteria for determining gender identity among applicants. The public relations manager of the university, an all-women’s institution in Tokyo, replied explaining:

Regarding the admission of trans women, we have adopted the method of receiving requests prior to the entrance examination application period, and confirming the eligibility of requirement. Then, after explaining the measures that will be taken upon entering the student life and receiving consent, they will be eligible to take the entrance exam. For those who have made the request, they will be asked to submit their self-declaration of their own gender disparity and gender identity, and if they possess one, a document confirming their gender identity (certificate from a medical doctor, documents written by high school teachers or parents, etc.). Then, the eligibility of application will be considered.[63]

That the medical certificate appears to not be a requirement for admissions to Ochanomizu University is a promising step towards a rights-based self-declaration procedure for trans people to secure official recognition.

Implications for Health Care, Employment, and Travel

Absent identity documents that match their gender presentation, transgender people who seek health care may be subjected to invasive questioning and humiliation. For example, a 30-year-old trans man in Osaka told Human Rights Watch that before he had changed his legal gender, he avoided getting medical care:

Before, I hated going to the hospital because my insurance card was marked as female. So my health was at risk because of that fear. Once I had such bad pain in my stomach and my partner forced me to go to the hospital. I hesitated for several days, but she forced me to go. Otherwise I would have died.[64]

Transgender people in Japan who do not—or cannot—undergo the requisite procedures to change their legal gender risk harmful exposure when seeking employment or in the workplace. The legal regime can even impact how young people think about their future. For example, an 18-year-old trans man university student in Okinawa said:

I’m happy like this [without surgery]. But I think I might have to do more operations and fully transition before applying for a job because that’s what people expect of me – the full GID procedure. That’s the pressure on me right now. I’m happy, but the future feels horrible already.[65]

Others told Human Rights Watch that revealing their gender identity led to pejorative and discriminatory treatment. “Job hunting is a really big deal. I went to my college career center and came out to them,” a 22-year-old x-gender person in Tokyo said. “They told me ‘You’re the minority, you can’t expect all of these things to work out for you.’ Because of that I decided to take time off from college and see a psychiatrist.”[66]

Simply moving from one place to another can be a dangerous and humiliating experience for people whose documents do not match their expression. The stakes are high, particularly for international travel, and range from fraud accusations and exposure to intense scrutiny and humiliation. United Nations human rights experts have condemned such targeting of transgender people in security processes.[67]

“Being legally recognized is good because I have my documents and I no longer have to explain to anybody about myself,” a trans man in Osaka said. “I had always dreamed of living smoothly – like nothing was wrong and that’s what I have now. For work, travel, all administrative interactions.”[68]

 

III. Japan’s Legal System’s Treatment of Transgender People

In a 2004 legal volume written to help interpret the GID Special Cases Act, Nouno Chieko, the leader of the Members of Parliament group when the law was adopted in 2003 and who served as Japan’s justice minister from 2004-2005, wrote:

Having “to not have gonads or to permanently lack functioning gonads” as a requirement is due to the fact that it was decided that after the legal sex reassignment was admitted, it was not appropriate to remain having reproductive organs of the original sex, or for the gonads to be releasing hormones of the original sex. Thereby, if after legal sex reassignment is carried out, there happens to be a case in which an offspring is born from the remaining reproductive organs, it could cause various [kinds of] confusion and problems. In addition, the possibility of unfavorable effects is not deniable if hormones are released from the gonads of the original sex.[69]

This analysis is based on hypothetical fears of negative social outcomes if transgender people were to retain their reproductive capacity. It does not have a basis in science and runs contrary to human rights standards and medical best practice guidelines. Unfortunately, while this explanation of the law was written over a decade ago, the same ill-informed and discriminatory ideas about trans people remain at the root of the Japanese government’s analysis today.

In 2016, Human Rights Watch wrote to the United Nations special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment regarding Japan’s legal gender recognition law.[70] The Special Rapporteurs exchanged letters with Japan’s Ministry of Health in Japan.[71]

The Special Rapporteurs critiqued several aspects of Japan’s legal gender recognition law as being in violation of international human rights law. They found that the sterilization requirement in Japan’s law especially abusive and discriminatory:

[S]ubjecting transgender persons to forced or otherwise involuntary gender reassignment surgery, sterilization or other coercive medical procedures is abusive, is rooted in discrimination, and violates the rights to physical integrity and self-determination of individuals and amount to ill-treatment or torture, and recommends that forced and coerced sterilization be outlawed in all circumstances, that special measures be adopted to protect individuals belonging to marginalized groups from such forced or coercive sterilization, that other abusive requirements for legal recognition of gender identity be abolished, and that transparent and accessible legal gender recognition procedures be adopted.[72]

While the government responded that the GID Special Cases Act is “exercised appropriately, taking into consideration international humanitarian [sic] laws and universal standards,”[73] the government’s defense of the GID Special Cases Act indicates several fundamental misunderstandings of gender identity as it is understood in international medical and legal standards.

Regarding the requirement of a diagnosis of “GID,” the government said: “The requirement also aims to prevent claims by persons claiming gender identity disorder for a change in gender status without having obtained a diagnosis.”

The government emphasized that,

In order to ensure that recognition of Gender Identity Disorder be made objectively and certainly, concurrent diagnoses from two or more physicians are required, and those diagnoses should be made “based on generally accepted medical knowledge.”

Generally accepted medical knowledge with regard to gender identity has changed substantially since the GID Special Cases Act was passed. As analyzed in the following section, it is not generally accepted medical knowledge that a diagnosis should be required for legal recognition; in fact, global transgender health expert bodies have called for the complete separation of medical and legal processes.[74] Furthermore, the diagnosis of “transsexualism” or “Gender Identity Disorder” is no longer recognized in either of the two major international diagnostic manuals, the Diagnostic and Statistical Manual (DSM) and the International Classifications of Diseases (ICD).

Regarding the criticism of the sterilization requirement as a human rights violation, the government responded:

When a person, after having had a change in legal gender status recognized, procreates using the reproductive function of the former gender, it may give rise to confusion and various problems.

This argument suggests that transgender men who wanted to provide eggs or get pregnant, or transgender women who wanted to provide sperm to conceive a child, should have their rights to do so curtailed in order to prevent “confusion.” While it is reasonable to expect that some people may be confused by a pregnant man, for example, such hypothetical social fears do not justify the coerced sterilization of a person.

Regarding the requirement that the applicant have no minor children, the government wrote:

The requirement that the person “currently has no child who is a minor” is stipulated, taking into consideration the arguments that this system could give rise to confusion within the family, including between parent and child, or influence the child’s welfare.

Chieko’s legal analysis mirrored this claim, arguing that a “child may get psychological confusion or anxiety, or it may affect the parent-child relationship.”[75] This assertion is based on pejorative and unfounded assumptions that transgender people cannot be good parents. In fact, research has shown that transgender people can be—and are—good parents, and their relationships with their children are good.[76]

Unfortunately, courts in Japan have followed similarly flawed logic in their judgments regarding transgender people’s rights.

Court Cases

Human Rights Watch is only aware of one case in which an individual directly challenged the sterilization requirement of Japan’s legal gender recognition law in court (a case in 2005 challenged the no-child requirement only). In February 2018, a High Court in Okayama ruled on the case of Takakito Usui, a 43-year-old transgender man who had brought a case to the court challenging the GID Special Cases Act on the grounds that the requirement of surgery violated Japan’s constitution.

In the case, the Hiroshima High Court ruled that the GID Special Cases Act existed to avoid confusion, contending: 

If there is an incidence where a child is born based on the reproductive capabilities of the previous gender after the parent undergoes a gender change under the procedure of the special case act, there are issues where the current legal system is unable to deal with, which may cause confusion in the legal order of personal status.[77]

The court further ruled that “it is not appropriate for an individual to maintain the reproductive capabilities of their previous gender.”[78] The court’s decision in this case runs counter to international human rights law, and serves to uphold a harmful, discriminatory, and outdated paradigm.

In January 2019, the Supreme Court issued its judgment in Usui’s case, upholding the GID Special Cases act as constitutional at this time, stating that there is a “need to avoid abrupt changes in a society where the distinction of men and women have long been based on biological gender.”

However, the four-judge bench noted that, “It cannot be denied that [this law] impinges on freedom from invasion of bodily [integrity].”

Two of the justices in a concurring opinion wrote of the urgency of Usui’s case, and the need to reform Japan’s law: “The suffering that [transgender people] face in terms of gender is also of concern to society that is supposed to embrace diversity in gender identity.” They noted that “because gender is treated as one of the attributes of an individual in social life and in personal relationships, it can be said that gender is inseparable from the existence as a person of an individual.” They concluded that for transgender people, being “able to receive rulings of changes in recognition of gender status…is an important, perhaps even urgent, legal benefit.”[79]

Other Japanese court decisions in recent years demonstrate the complexities of interpreting a law that recognizes a population of people—the transgender population—as people who have rights, but also construes them as suffering from an illness, “GID,” that does not in fact exist. Nevertheless, within this framework, transgender individuals have challenged instances of discrimination in courts and in many instances, won. The list of cases below is illustrative, not comprehensive, and some of the cases are still pending, so publicly available information about them is limited.

June 2002: Tokyo District Court Workplace Discrimination Case   An employee working for a company that published travel guidebooks had obtained a “GID” diagnosis. The employee demanded that the company respect the employee’s right to be able to work as a woman. However, after the employee came to work dressed in female clothing, the company enacted a disciplinary dismissal of the employee for having “disturbed order.” The court decided that the disciplinary dismissal ordered by the company was invalid. The court acknowledged the company’s argument that dressing as a woman results in confusion among other employees. However, the court stated that if the employee “is suppressed of being able to behave as a woman, the employee will have to go through incredible mental distress,” and with more time and effort on behalf of the company to try to understand the situation, it will be possible to ease the confusion.[80]

 

August 2014: Shizuoka District Court Golf Course Discrimination Case   A golf course in the city of Shizuoka refused membership to a 59-year-old transgender woman who had legally changed her gender from male to female. She sued the golf course for damages due to wrongful conduct, a violation of Japan’s civil code. The court, ruling in the petitioner’s favor, stated that it “clearly condemns discrimination against LGBT people” and “the psychological damage the plaintiff suffered is immense and can’t be ignored.”[81] However, the court also said that, “Society understands quite well that being LGBT is not a matter simply of a hobby or predilection, but rather an illness that they suffer regardless of their will. The intolerability of irrational treatment based on the reason of gender dysphoria or on its treatment is the same as the intolerability of irrational treatment for the reason of other illnesses.”[82] The court ordered the golf course to pay ¥1.1 million ($9,800) in damages.

April 2014: Osaka Family Court Adoption Case   The Osaka Family Court ordered that a transgender woman be allowed to adopt a child through “special adoption.” While this procedure has been technically allowed since Law 111 came into force in 2003, according to the Japan Society of Gender Identity Disorder (the GID Society), this was the first case in which special adoption was granted to a transgender woman, meaning she was the first trans woman to attain legal status as a “mother” in Japan.[83]

November 2015: Tokyo District Court on Workplace Bathroom Access and Harassment   An employee of the Ministry of Economy, Trade and Industry filed a lawsuit against her agency for forbidding her to access bathrooms according to her gender identity and her supervisor harassing her about her transition.[84]  The case is ongoing.

November 2015: Nagoya District Court on Forced Workplace Outing of Transgender Employee   A company employee who adopted a female name filed a damages suit against a subsidiary of beverage maker Yakult Honsha Co., claiming she was forced to come out and suffered depression.[85]

June 2016: Kyoto District Court settlement in Case of Denial of Access to a Fitness Club   A transgender woman in the city of Kyoto sued Konami Sports Club Co., a fitness club operator, saying she was forced to use its facility in Kyoto Prefecture as a man before undergoing sex reassignment surgery. A compromise settlement was reached in the case, although details have not been released to the public.[86]

 

IV. International Law, Best Practices for Gender Recognition

International human rights standards are increasingly understood to require the separation of legal and medical processes of gender reassignment for transgender people. During the 2017-2018 cycle of Japan’s Universal Periodic Review at the United Nations Human Rights Council in Geneva, New Zealand issued a recommendation that Japan “[t]ake steps to address discrimination based on sexual orientation and gender identity, including revising the Gender Identity Disorder Law.”[87] The government of Japan responded “supporting” the recommendation, indicating its commitment to implement the recommendation before its next review, which will take place in 2022.[88]

In his report to the UN General Assembly in 2018, the independent expert on sexual orientation and gender identity, Victor Madrigal-Borloz, stated:

[L]ack of legal recognition negates the identity of the concerned persons to such an extent that it provokes what can be described as a fundamental rupture of State obligations. As expressed by one scholar, when States deny legal access to trans identities, what they are actually doing is messaging a sense of what is a proper citizen.[89]

Transgender people whom Human Rights Watch interviewed in Japan felt similarly. Asked what he thought of the justification for the surgical requirement in Japan’s legal gender recognition law, Takayuki G., a trans man in Tokyo, said:

Japan is cold to even slightly exceptional people, so this provision should be it. They use the word ‘not proper’ in order not to admit the exceptions and so as to keep homogeneity…The law is created in order not to give rise to exceptions and that’s why it’s ‘not proper’ that people who have male genitals marry men.[90]

The International Covenant on Civil and Political Rights (ICCPR) provides for equal civil and political rights for all (article 3), the right to recognition for everyone before the law (article 16), the right to one’s privacy and family (article 17), and the right of people of marriageable age to marry and to start a family (article 23(2)).

Governments are obligated under the ICCPR to ensure equality before the law and the equal protection of the law of all persons without discrimination on any ground, including sex (article 26). The UN Human Rights Committee, the international expert body that monitors state compliance with the ICCPR, has specifically recommended that government should guarantee the rights of transgender persons including the right to legal recognition of their gender, and that states should repeal abusive and disproportionate requirements for legal recognition of gender identity.[91]

Several countries have adopted best practices that reflect this. Sweden, the Netherlands, Ireland, Colombia, Malta, and Denmark in recent years changed their legal recognition procedures to remove invasive medical requirements; Denmark and Malta, along with Argentina, do not require a medical diagnosis for legal gender recognition.[92] Argentina and Malta are widely considered to set best standards in legal gender recognition procedures.[93] In some countries, legislatures have adopted these standards in laws and policies; in other countries, courts have required the application of these principles.

In 2013, the UN special rapporteur on torture stated that, “In many countries transgender persons are required to undergo often unwanted sterilization surgeries as a prerequisite to enjoy legal recognition of their preferred gender.”[94] The special rapporteur noted a trend of finding such compulsory sterilization a violation of human rights, including non-discrimination rights and physical integrity, and called upon governments “to outlaw forced or coerced sterilization in all circumstances and provide special protection to individuals belonging to marginalized groups.”[95]

A 2012 Office of the High Commissioner for Human Rights (OHCHR) report, prepared in response to a 2011 Human Rights Council resolution calling for an end to violence and discrimination on the basis of sexual orientation and gender identity, noted that “[r]egulations in countries that recognize changes in gender often require, implicitly or explicitly, that applicants undergo sterilization surgery as a condition of recognition. Some States also require that those seeking legal recognition of a change in gender be unmarried, implying mandatory divorce in cases where the individual is married.”[96]

In a 2014 joint statement, the WHO, OHCHR, UN Program on HIV/AIDS (UNAIDS), the UN Development Programme, UNICEF, and UNFPA said: “States parties’ obligation to respect the right to health requires that they abstain from imposing discriminatory practices. This includes an obligation to respect the rights of persons with disabilities and transgender and intersex persons, who also have the right to retain their fertility.”[97] The agencies called on governments to “[p]rovide legal guarantees for full, free and informed decision-making and the elimination of forced, coercive and otherwise involuntary sterilization, and review, amend and develop laws, regulations and policies in this regard.”[98] In 2017, the Board of Directors of the Japanese Society of Gender Identity Disorder, the first and the largest Japanese organization founded in 1999 for professionals working on GID, adopted a statement in support of this report, noting that “it can be assumed that if the requirements stated in Article 3 Section 1 of the Special Cases Act, especially the “surgery requirement,” did not exist, the situation would have been vastly different.”[99]

In a 2015 report, mandated by a 2014 Human Rights Council resolution on sexual orientation and gender identity, OHCHR recommended that states begin immediately “[i]ssuing legal identity documents, upon request, that reflect preferred gender, eliminating abusive preconditions, such as sterilization, forced treatment and divorce.”[100]

The 2015 Blueprint for the Provision of Comprehensive Care for Trans People in Asia and the Pacific, co-published by WHO, UNDP, USAID, PEPFAR, the Asia-Pacific Transgender Network, and the Health Policy Project, recommended that governments “[t]ake all necessary legislative, administrative, and other measures to fully recognize each person’s self-defined gender identity, with no medical requirements or discrimination on any grounds.”[101]

Similarly, principle 3 of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity states that:

Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity. No one shall be subjected to pressure to conceal, suppress, or deny their sexual orientation or gender identity.[102]

Regional bodies have followed the logic of these principles.

In June 2013, the Parliamentary Assembly of the Council of Europe, a regional body comprised of 47 member states, passed Resolution 1945, calling for an end to coercive sterilization and castration. Transgender people are listed as one of the groups in the Council of Europe countries disproportionally affected by coercive sterilization.[103] Similarly, in January 2018 the Inter-American Court of Human Rights issued an advisory opinion which maintained that states are obligated under the American Convention to establish efficient, inexpensive, and straightforward legal gender recognition procedures based solely on the “the free and autonomous decision of each person” and that forcing transgender people to argue for a change in gender markers before a judge would constitute an “excessive limit” on their rights.[104]

International health expert bodies have in recent years strengthened their positions against medical models for legal gender recognition. The WPATH, an international multidisciplinary professional association aimed at promoting evidence-based care, education, research, advocacy, public policy, and respect in transgender health and comprised of over 700 members worldwide, called for removal of any sterilization requirements as part of legal gender recognition in a 2010 statement.[105] WPATH stated:

No person should have to undergo surgery or accept sterilization as a condition of identity recognition. If a sex marker is required on an identity document, that marker could recognize the person’s lived gender, regardless of reproductive capacity. The WPATH Board of Directors urges governments and other authoritative bodies to move to eliminate requirements for identity recognition that require surgical procedures.[106]

In 2015 the WPATH updated the statement, reiterating its condemnation of forced sterilization, and expanding its critique of arduous and medicalized procedures for legal gender recognition, saying: “No particular medical, surgical, or mental health treatment or diagnosis is an adequate marker for anyone’s gender identity, so these should not be requirements for legal gender change”; and, “Marital status and parental status should not affect legal recognition of gender change, and appropriate legal gender recognition should be available to transgender youth.”[107]

And in 2017, WPATH updated their position statement again, reiterating that:

WPATH further recognizes the right of all people to identity documents consistent with their gender identity, including those documents which confer legal gender status…. Transgender people, regardless of how they identify or appear, should enjoy the gender recognition all persons expect and deserve. Medical and other barriers to gender recognition for transgender individuals may harm physical and mental health. WPATH opposes all medical requirements that act as barriers to those wishing to change legal sex or gender markers on documents.[108]

Implementation around the World

The Science Council of Japan, an independent organization under the ministry of cabinet, representing Japanese scientists in social sciences, life sciences, natural sciences, and engineering, according to a report published in September 2017, recommends removing “GID” terminology, and suggests there have been conversations underway inside the Japan Society of Psychology and Medicine to adopt “gender incongruence” terminology instead.[109] The council also recommends removing the surgical, divorce, and no-children requirement from the law, saying:

Upon the establishment of the Special Cases Act, the law makers were aware that gender has a direct connection to personal identity, and therefore has issues to the 13th Article of the Constitution of Japan, is a persons’ right to pursue happiness and dignity. Taking into consideration the trends of the world, including the joint statement by the World Health Organization (2014), it is now the time to reconsider the requirements in order to secure the unalienable rights to pursue happiness and human dignity.[110]

To reach its conclusions, the council cited legal and medical changes that have taken place in recent years around the world, many of which are explored in this report. 

As the special rapporteur on torture noted in his 2013 report, national courts in several countries have begun to reflect these standards in their decisions as well. The special rapporteur’s report refers to the following domestic cases:

• In 2009, the Austrian Administrative High Court ruled that mandatory gender reassignment, as a condition for legal recognition of gender identity, was unlawful.[111]
• In 2011, the Constitutional Court in Germany found that the requirement of gender reassignment surgery violated the rights to physical integrity and self-determination.[112]
• In 2012, the Swedish Administrative Court of Appeals ruled that forced sterilization could not be seen as voluntary.[113]
• In September 2014 the Norwegian Equality Body ruled that the Ministry of Health had provided no justification for the sterilization requirement in its gender recognition law, and thus the sterilization requirement was deemed to contravene the Anti-Discrimination Act.[114]

Courts in some Asian countries have demonstrated a similar commitment to medical non-interference in legal gender recognition processes, including in the following cases:

• In a 2007 judgment, the Nepal Supreme Court’s definition of a third gender category situated it as a minority encompassing a broad range of identities for transgender and gender non-conforming people.[115] A 2014 study found that respondents wrote in 16 different terms for their gender identities.[116] The court made clear that the sole criterion for being legally recognized as third gender on documents and in government registers was an individual’s “self-feeling.”[117] The judgment cited the right to recognition before the law, guaranteed under article 16 of the ICCPR, as well as the Yogyakarta Principles.
• In 2013, India’s Supreme Court stated that undertaking medical procedures should not be a requirement for legal recognition of gender identity. The court said: “Few persons undertake surgical and other procedures to alter their bodies and physical appearance to acquire gender characteristics of the sex which conform to their perception of gender, leading to legal and social complications since official record of their gender at birth is found to be at variance with the assumed gender identity.” It continued: “Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.” The court made it clear that mandatory sterilization was not acceptable: “no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.”[118]
• In 2015, the Delhi High Court reinforced that, “Everyone has a fundamental right to be recognized in their gender” and that “gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom.”[119]

Rights of Trans Children

The right to recognition as a person before the law is articulated in the Universal Declaration of Human Rights and guaranteed in the ICCPR and the Convention on the Rights of the Child (CRC).[120] The right to preserve one’s identity is guaranteed by article 8 of the CRC, which specifies three aspects of identity—nationality, name, and family relations—but that list is not exhaustive. Together with the right to protection from arbitrary interference in privacy, such as ICCPR article 17, the right to preserve one’s identity extends to the way one’s identity is reflected on state-issued documents—including for children.

As the CRC makes clear, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”[121] This includes decisions about legal recognition of the gender identity of transgender children.

Article 12 of the CRC provides that in determining the child’s best interest, the child itself should be heard and taken into account:

1. Governments should assure to the child who is capable of forming their own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.[122]

Diagnostic Shifts

Psychiatrists in Japan use both the International Classification of Diseases (ICD), which is published by the UN WHO, and the Diagnostic and Statistical Manual (, which is published by the American Psychiatric Association (APA). Both the DSM and the ICD have removed the diagnoses for “GID” and “transsexualism” from “mental disorders” sections altogether.

In 2012 the APA board’s changes to the latest DSM removed the term “Gender Identity Disorder.” APA instead added the term “Gender Dysphoria” with the specific definition that it refers to emotional distress over “a marked incongruence between one’s experienced/expressed gender and assigned gender.” The APA specifically clarified: “It is important to note that gender nonconformity is not in itself a mental disorder. The critical element of gender dysphoria is the presence of clinically significant distress associated with the condition.”[123]

The WHO published a revised version of the ICD in June 2018.[124] The new WHO guidelines reframe “gender identity disorders” as “gender incongruence,” and move the diagnostic codes from the chapter on mental disorders to one on sexual health—an important gain for transgender adolescents and adults, who may soon be able to seek medical care without being viewed as “mentally disordered.” The World Health Assembly, the governing body of the WHO, which features representatives from 194 member states, will likely approve ICD-11 in 2019. Governments will then have until 2022 to change their diagnostic coding systems. According to the WHO, “evidence is now clear that [gender identity] is not a mental disorder, and indeed classifying it in this can cause enormous stigma for people who are transgender.”[125] As one member of the ICD-11 working group that undertook the revisions process explained,

WHO, a United Nations agency, has a human rights mission, and there is substantial evidence that the stigma associated with the intersection of transgender status and mental disorders contributes to precarious legal status, human rights violations, and barriers to appropriate health care for this population.[126]

The SOGI Independent Expert noted that this change signaled clearly that “there is no reason to assign a diagnosis to trans people who do not seek gender-affirming medical treatment or some sort of bodily change.”[127]

Japan’s legal recognition procedure is out of step with that recommended model on multiple levels, including because it requires transgender people to undergo medical procedures to secure legal recognition of their gender identity. This has contradictory effects. To some extent the fact that gender-affirming medical procedures are available in Japan reflects advances in medical practices and the medical community’s embrace of care for transgender people. But it also reinforces a pathological model that contributes to stigmatization of transgender people.

 

Acknowledgments

Research for this report was conducted by Kyle Knight, researcher in the lesbian, gay, bisexual, and transgender rights program; Kanae Doi, Japan director; and Michael Garcia Bochenek, senior children’s rights counsel at Human Rights Watch.

We wish to thank Fumino Sugiyama, Itsuki Dohi, Yuko Higashi from Osaka Prefecture University for their expertise and support in conducting the research. Riyo Yoshioka, Japan Senior program officer, Teppei Kasai, Japan program officer, Emily Okabe, Kanako Nannichi, Kota Ono, Yuto Takeda, Ayako Ogo, and Kan Kikumoto, Tokyo office interns, offered outreach and desk research support. Naho Toivonen, an intern in Human Rights Watch’s London office in 2016, provided significant background research and analysis on some of the legal cases referenced in this report.

Graeme Reid, director of the LGBT rights program, Kanae Doi, and Michael Bochenek edited the report. James Ross, legal and policy director, and Danielle Haas, senior program editor, provided legal and programmatic review. Tetz Hakoda and Yuki Akimoto were the Japanese translators, and Hiroyuki Taniguchi was the specialist reviewer of the Japanese translation of this report. Production assistance was provided by MJ Movahedi, LGBT rights program coordinator, and Fitzroy Hepkins, administrative manager.

We wish to thank the trans people who shared their stories with us.