Working Conditions Imposed on a Trans Woman and Their Unlawfulness

Supreme Court, 3rd Petty Bench, Judgement of 11 July 2023

Abstract

In July 2023, the Japanese Supreme Court rendered a decision concerning the working conditions of a trans woman. The appellant, a trans woman and employee of a government ministry, requested the rescission of restrictions on the conditions of her working as a woman including her use of women’s toilets. The court weighed the comparative interests of the parties and ruled that an abstract discomfort vaguely assessed by the ministry did not suffice to restrict the appellant’s legal interests. Although the conclusion reached in this specific case would not be universally applicable to other workplaces, it provides a guide for balancing the interests of the affected parties in similar cases. The courts in various decisions have recognized the legal interests of trans persons in living lives corresponding to their gender identities. Although Japan’s judiciary has not yet clarified whether one’s gender identity per se is to be protected under Japan’s Constitution, several court decisions and justices’ supplemental opinions have acknowledged gender and sex as an element inseparable from one’s personality. The so-called Gender Identity Disorder Act, which stipulates the judicial procedure for changing one’s legal gender in Japan, requires the applicant to 1) reach the age of majority, 2) be unmarried, 3) have no minor children, 4) lose the function of reproductive glands, and 5) have their outer genital appearance approximate that of the other gender. Although the Supreme Court so far has held all these requirements constitutional, the significance of most of the requirements has already been diminished. The 2019 decision of the Supreme Court on the GID Act implies a possible change in its jurisprudence in the near future. As seen in political debates around the newly enacted “Act to Promote Understanding of LGBT,” Japan’s legislator has struggled to establish the concept of gender identity and tends to try to avoid the connotation of arbitrariness. Similarly, the Japanese judiciary and some in the trans community tend to rely on pathologized features to justify trans persons’ gender modality. Under such circumstances, the concept arose of a “right to maintain one’s own identity and integrity,” which claims to correct a legal status deviating from one’s actual living situation. The logical structure of legal protections for a person’s gender identity may thus develop differently in Japan from that in Europe.