Photo/Illutration The Supreme Court’s Grand Bench hears a case on legal gender change requirements in 2023. (Hikaru Uchida)

The Tokyo High Court has affirmed that requiring transgender people to alter genital appearance as a prerequisite to changing their registered gender could be unconstitutional in certain instances and urged lawmakers to debate legal revisions. 

While the court stopped short of declaring the unconstitutionality of the current law’s “appearance requirement,” it concluded that “a situation that violates the Constitution could arise” for individuals who have no other option but surgery to meet the requirement.

This is the first time that a high court has handed down such a judgment in a family court case about this provision of the Law on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder.

The petitioner is a trans woman in her 50s who has openly identified as such for many years.

Presiding Judge Osamu Hagimoto at the Tokyo High Court noted that the petitioner’s penis had not atrophied despite receiving hormone therapy for more than 20 years.

He said imposing the appearance requirement would be unconstitutional in the　petitioner’s case and approved changing her legal gender to female.

The court also said, “The legislature should reasonably exercise its discretion to revise the law and also consider whether the appearance requirement also needs to be amended.”

The petitioner disclosed the decision, which is dated Oct. 31, to The Asahi Shimbun. Proceedings of family court cases are closed to the public.

The appearance requirement is one of the five conditions for changing one’s legal gender stipulated in the Law on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder.

In October 2023, the Supreme Court ruled that the “sterility requirement,” which calls for removal of testes or ovaries, is unconstitutional and invalid.

According to the Supreme Court, lower courts have found the appearance requirement unconstitutional in at least five cases, but the law remains unchanged.

The Tokyo High Court decision first emphasized that being treated under the law in accordance with one’s gender identity constitutes an “important legal interest.”

It stated that if the appearance requirement effectively mandates genital surgery, it would excessively restrict “the freedom not to have one’s body subjected to invasive procedures against one’s will,” as guaranteed by Article 13 of the Constitution.

The court said the purpose of the appearance requirement is to avoid confusion in public spaces such as bathhouses, and that the requirement can be satisfied without surgery if hormone therapy alters the appearance of the genitalia.

However, the court said this form of therapy carries risks of serious side effects.

It also pointed out that some individuals do not experience changes in genital appearance with such treatment, while others cannot undergo hormone therapy due to physical constitution and other reasons.

The court said imposing the appearance requirement on those individuals would leave them with no option but to undergo surgery, thereby violating Article 13 of the Constitution.

The petitioner applied for a legal gender change at a family court in the Kanto region in January. She filed an appeal immediately after the request was rejected in March.

The court decision granting the change becomes final because family court cases on legal gender changes do not involve opposing parties such as the state.

Shu Haruyama, an associate professor of constitutional law at Nihon University, said the appearance requirement, which has imposed surgery or hormone therapy for a legal gender change, clearly violates the Constitution and that the Tokyo High Court “should have gone so far as to unequivocally declare it unconstitutional.”

“To provide broad relief for affected individuals, the Diet must revise the law as quickly as possible to eliminate the need for any medical procedures,” he said.

Regarding issues cited as the purpose of the appearance requirement, such as public bathhouses, Haruyama said, “Certain rules are already in place, such as health ministry notices, and the issue can be addressed by alternative means.”

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