Photo/Illutration The Supreme Court in Tokyo’s Chiyoda Ward made a historic ruling recognizing a legal parent-child relationship between a transgender woman and her second daughter. (Asahi Shimbun file photo)

The Supreme Court has ruled that a transgender woman can legally be recognized as the father of her child, conceived using her own frozen sperm before her transition.

This marks a landmark decision affirming the importance of protecting the rights of children of sexual minorities. 

In handing down the ruling on June 21, the top court’s Second Petty Bench set a precedent for the inclusion and recognition of diverse family structures under Japanese law.

The ruling might be surprising from the viewpoint of the traditional concept that a father is a male. In fact, both the family and high courts had made decisions different from the Supreme Court’s.

The Supreme Court ruling argued that denying a father-child relationship because the parent is legally a woman would be contrary to the welfare and interests of the child.

The court took the stance of putting the priority on securing the legal status for the child to receive an education and support from the parent.

Given the actual blood relation between the transgender woman and her child and her clear intention to rear the child as a parent, this can be seen as a very natural decision.

Even though the parent is recognized as a “female father” under the current law, society should accept such parenthood as part of the diverse forms of families.

The special law for gender identity disorder, which came into effect in 2004, specifies exceptions for the handling of legal gender to address various issues in the social lives of those with gender identity disorder.

During the legislative process for the special law, particularly careful attention was paid to ensure that allowing gender change in family registries will not contradict existing systems.

This imperative was translated into the conditions for allowing gender changes, such as “being currently not married," "having no children" and "lacking reproductive capability due to gender reassignment surgery.”

Regarding the presence of children, the law was relaxed in 2008 to state "not having minor children." However, compared to systems in other countries, the law’s hurdles for gender change have been criticized as being too high.

In 2014, international organizations such as the World Health Organization declared that member countries must respect the rights of transgender individuals to maintain reproductive capabilities and legal changes have been made in many countries to remove the “infertility” requirement.

Last year in Japan, the Supreme Court deemed the requirement unconstitutional and invalid under the constitutionally guaranteed right to be "free from unwanted bodily invasion."

The Diet is responsible for quickly revising related laws from the perspective of whether unnecessary burdens are imposed on individuals desiring gender change.

While the freedom to have a family is universal, Japan’s legal system does not fully protect the rights of sexual minorities to have a family.

Regarding assisted reproductive technology, the legalization of procedures involving third-party sperm and eggs has long been delayed. For example, a female couple can technically have a child using donated sperm, but the medical institutions offering such procedures are limited.

Even if a female couple resorts to this approach, only one of them can become a legal parent, leaving the child's legal status unstable.

The Diet must advance discussions on issues related to transgender parent-child legal ties in a way that clearly recognizes the importance of ensuring fairness in medical care and the rights of those involved.

--The Asahi Shimbun, June 25