Photo/Illutration Kazuyuki Minami, left, and Masafumi Yoshida, both lawyers representing the plaintiff, hold up signs in Tokyo’s Kasumigaseki district on Oct. 25 saying “unconstitutional” and that the case was “returned to” a high court. (Kyota Tanaka)

In its ruling concerning transgender people’s constitutional right to pursue happiness, the Supreme Court created a new disparity.

The top court’s Grand Bench on Oct. 25 ruled unanimously against one of two contested surgical requirements for gender change.

The sterility requirement under the law stipulates that an individual seeking a gender change should “have no reproductive glands, or their functions should be permanently lost.”

The top court said this surgical requirement was unconstitutional.

However, the top court did not make a decision regarding the “appearance requirement,” which states that an individual seeking a gender change should have “a body featuring genital organs resembling those of the gender sought in the change.” It sent the case back to a high court.

For transgender people transitioning from female to male, family courts tend to determine that the appearance requirement has been met if hormone administration results in an enlarged clitoris, making it resemble a penis.

Therefore, surgeries, such as phalloplasty, are rarely performed on transgender men for the appearance requirement.

In contrast, transgender women transitioning from male to female typically undergo surgeries to remove not only their testes to meet the sterility requirement but also their penises to meet the appearance requirement.

The Supreme Court’s ruling means that transgender men will likely not need any surgical procedures to change their gender in the registers as long as they have been on hormone treatment for a certain period.

While transgender women will also not need to undergo the sterilization operation, they may still need surgery to remove body parts to meet the appearance requirement.

Transgender women, including the plaintiff in the case, are hoping the high court rules the appearance requirement is also unconstitutional.

The Supreme Court swiftly informed courts across Japan of its ruling that the sterility requirement violates the Constitution.

Family courts will now regard the sterility requirement as nonexistent in gender change cases.

But other requirements, such as the appearance condition, will be discussed at the courts when determining eligibility for gender change.

Deliberations are set to start on revising or removing the sterility requirement in the law.

The Justice Ministry, which oversees the law, is expected to work on the revision, and a draft could be submitted to the Diet as early as the ordinary session next year.

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