It is very difficult to be transgender in Japan, legally speaking. One must be at least twenty years old, unmarried, and without children under the age of twenty. One must undergo a psychiatric evaluation to receive a diagnosis of “Gender Identity Disorder,” a sex reassignment surgery, and mandatory sterilization. This is to say nothing about the social, emotional, and physical safety difficulties of being trans in the country.
In 2003, Japan passed Law No. 111, which instated formidable hurdles for transgender people who seek government recognition of their gender. This law is restricted to recognition of the two binary genders but does allow for correction of the gender assigned at birth. Since 2003, approximately seven thousand people have complied with these invasive procedures and requirements in order to legally change their gender registration. On January 24, 2019, Japan’s Supreme Court unanimously affirmed Law No. 111 after Takakito Usui, a trans man, challenged the law as unconstitutional.
This comes after significant advances for LGBTQ people in Japan. Recent polling has found that over seventy percent of respondents support stronger legal protections for LGBT people. More respondents than ever openly identified as lesbian, gay, bisexual or transgender in the survey. This change in public attitude is being resisted by conservative lawmakers like Mio Sugita, who belongs to the ruling Liberal Democratic Party. She attracted widespread criticism last year when she published an article in the Japan Times saying, “Support for LGBTs has gone too far.”
For trans people, not having your correct gender recognized by the state can have dangerous implications. In Japan, if you have not gone through the official gender recognition process and become incarcerated, you will be placed in a prison with the gender you were assigned at birth—which can result in targeted violence, sexual assault, and death. As noted by the Secretariat in the 2016 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, governments’ refusal to legally recognize transgender people’s 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.” However, in recognizing trans people’s gender, governments have a responsibility not to impose abusive requirements, such as “forced or otherwise involuntary gender reassignment surgery, sterilization or other coercive medical procedures.”
In Japan, Gender Identity Disorder (a mandatory diagnostic prerequisite for trans people) is defined 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.” The sex reassignment surgery, which Law 111 requires, is invasive and complies with binary gender standards. The law also requires trans people’s gonads to be either removed or rendered permanently nonfunctioning. These requirements are based on beliefs that trans people, if not surgically altered and psychologically pathologized, cause “problems” with children and society at large.
This coercive sterilization violates the rights to physical integrity, health, privacy, and family life (including the right to decide the number and spacing of children), as well as the right to non-discrimination, as protected by the International Covenant on Civil and Political Rights. In some cases, it may even constitute torture, cruel, inhuman or degrading treatment.
There are currently no explicit protections for LGBTQ people in binding international law. Language dealing with gender in binding international law is actively compliant with binary notions of sex in order to avoid controversy (the Rome Statute goes out of its way to define gender as “two sexes, male and female”). This leads to the exclusion of transgender individuals from legal protection in international law. Likewise, there are no explicit prohibitions on involuntary sterilization in international law, despite the fact that the practice has ties to eugenics and primarily affects marginalized people like women, impoverished people, people living with HIV, people with disabilities, minority and indigenous people, and transgender and intersex people.
Despite the lack of binding international law, many in the field have made efforts to extend penumbral human rights law to include implied protections for LGBTQ people through nonbinding declarations and general guidance decisions. These legal theories (that LGBTQ discrimination is inherently prohibited under international law) have yet to be tested in international court. Possibly because, without stronger doctrine in international law, parties are concerned about losing and creating detrimental implications for future cases. International organizations like the UN need to take a stronger stance on LGBTQ rights. They could start by acknowledging the existence of LGBTQ people in binding international conventions. For its part, Japan could support its transgender citizens by removing the burdensome requirements needed to legally change one’s gender and offering recognition of a third gender identification for non-binary and gender diverse citizens.