Introduction
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The purpose of this article is to provide an overview of the legal situation facing sexual minorities in Japan. In most Western countries, legal arguments relating to sexual minorities began with the resistance to widespread sodomy laws. These laws not only prohibited same-sex sexual conduct, but also had a negative social impact on those who were categorised as sexual minorities.[1] In contrast, there have never been effective laws prohibiting same-sex sexual conduct in Japan. This paper looks at the legislation and some cases concerning sexual minorities in Japan and outlines the development of the current legal debates.
Background to the legal situation of sexual minorities in the West
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So far, most of the legal debate concerning sexual minorities has taken place in Western countries and has a common historical background. Regarding lesbians/gays/ bisexuals (hereafter LGB), as Kees Waaldijk has pointed out, the history has followed three stages: (1) decriminalisation, (2) anti-discrimination, and (3) partnership legislation.[2] The first stage is the decriminalisation of same-sex sexual conducts. Many countries had criminal rules banning 'sodomy,' which prohibited a variety of same-sex sexual acts.[3] For example, the attempt to repeal article 175 of the German criminal code by Magnus Hirschfelt and others at the beginning of the last century is a prominent example of this stage.[4] More recently, the Bowers v. Hardwick case in the United States Supreme Court is the best known defeat of attempts at decriminalisation.[5] This legal debate was taken up in the international arena when the Toonen v. Australia case came up before the Human Rights Committee, under the jurisdiction of the International Covenant on Civil and Political Rights.[6]
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During the second stage, the debate moves on to focus on issues of discrimination, such as discriminatory treatment in the work place, different age of consent laws and rights to the succession of property of separated or bereaved partners. These issues are discussed in terms of principles of non-discrimination based on 'sex' (which can be interpreted to include 'sexual orientation,')[7] or sometimes, the legislation includes the terms 'sexual orientation' or 'sexuality'. For example, every state in Australia has non-discrimination clauses based on sexuality, although the wording differs[8] and several Australian states explicitly prohibit discrimination against transgender individuals.[9]
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The third stage is the legal recognition of same-sex relationships. From the late 1980s, Scandinavian countries enacted registered partnership laws which constituted a new category of legal relationship for same-sex couples. Some states in the US, and Germany and France followed them. In turn, the Netherlands, Belgium and Spain, and most recently Canada, have amended marriage laws so as to include same-sex couples.[10] There are also some international law cases which are in favor of legal protection for same-sex relationships.[11]
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Alongside the legal history of LGB, legal interest in transgender[12] has been steadily growing following on from the medical recognition of Gender Identity Disorder (GID). The legal alteration of transgender individuals' sex and name on official documents has always been the starting point for this history. The first example of legislation allowing such changes can be found in Swedish law in 1972. The trend gradually spread throughout European countries: Germany in 1980, Italy in 1982, the Netherlands in 1985 and Turkey in 1988. Most recently the United Kingdom passed a bill named the 'Gender Recognition Bill' after losing a lawsuit filed in the European Court on Human Rights.[13] These domestic laws commonly require the completion of sex/gender re-assignment surgery and the absence of marital relationships and also sometimes require a higher age of consent and stipulate that the individual concerned be rendered incapable of procreation.[14]
Legal background in Japan
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Compared with the Western legal history of LGB, the Japanese situation has a crucial difference – that is the absence of sodomy laws.[15] However, despite this lack of prohibition of same-sex sexuality, Japanese law does not recognise other aspects of LGB rights, such as marriage, social security or inheritance. Concerning transgenders, as I will detail below, no effective laws for their well-being were enacted until recently. In addition, Japan has no specific legislation concerning non-discrimination or human rights[16] and there is no domestic machinery for the protection and promotion of human rights in Japan so far.[17] In actual fact, no laws in Japan legislate either for or against sexual minorities; in other words, Japanese law has just ignored sexual minority issues, although it has not explicitly criminalised homosexual behaviour.
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With the above in mind, some changes have taken place within the last decade. In the next section, I will illustrate some examples of these developments.
The legal debate in Japan from the mid-1990s
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There were only a few cases concerning LGB issues that came before the courts before 1990 in Japan.[18] However, most of these cases had almost no effect on society, and are not known about even by activists, scholars or lawyers. In contrast, cases concerning transgenders are quite well known and they have had a great effect on the community. In this section, I will discuss the legal history of LGB and transgenders separately.
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The first victory in a case concerning sexual minorities was the Fuchū Youth Hostel case in 1997 (hereinafter the Fuchū case). This case concerned the exclusion of the lesbian and gay group, Japan Association for the Lesbian and Gay Movement (also known as OCCUR), from a government-run youth hostel. The Tokyo Metropolitan Board of Education, which manages the youth hostel, argued that it was against their policy to allow LGB groups to use the facility. They argued that the presence of lesbians and gay people contradicted their policy concerning single-sex accommodation and providing a wholesome environment for youngsters. The Board explicitly argued that it was inappropriate for gays or lesbians to stay in the same room since they were attracted sexually to each other, and that their presence would have a bad effect on other young people who stayed at the facility.
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The Tokyo District Court ruled that the rejection of OCCUR's request to use the facility was illegal and discriminatory, and ordered the metropolitan government to pay both pecuniary and non-pecuniary damages. The court said that the refusal, which was based on the abstract possibility of sexual relationships developing, made it impossible for homosexuals to use the facility.[19] The Tokyo Metropolitan Government appealed to the Tokyo High Court. In rejecting the appeal, the High Court stated as follows: '[W]hen governmental bodies accomplish their duties, they must pay due attention to the situation of the homosexual minority and guarantee that their rights and interests be upheld'. Though the court rejected the appeal, the non-pecuniary damage, or consolation money, was reduced from the original amount.[20]
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Many LGB activists refer to this case as the first victory for sexual minorities in Japan and the case actually increased the awareness of LGB human rights issues. However, this is still the only lawsuit that has attracted public attention. There remain strong resistance to and ignorance about the human rights of LGB in legal debates in Japan.
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Compared with the legal situation facing LGB, there has been much more discussion surrounding transgender issues. The first well-known judgment concerning transgenders, which occupied transgender communities and medical and legal professionals for a long time, is called the 'Blue Boy Case' and took place in 1970.[21] This case concerned the legality of sex-change operations. The Eugenic Protection Act, which has been subsequently reissued as the Law for the Protection of the Maternal Body, prohibits the elimination of an individual's ability to procreate without legitimate grounds (such as hereditary diseases or high-risk pregnancies). Since sex-change operations require the removal of healthy reproductive organs, both the Tokyo District Court and the Tokyo High Court ruled that the procedure contravened the Act. This judgment left the lasting impression on both the transgender community and the medical profession that the sex-change operation itself was a crime.[22] This view was widely held among the medical profession until the late 1990s.
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Another major problem facing transgenders is the change of transgender individuals' sex and name registered in the Official Family Registry (a kind of birth registration document). Some transgenders who underwent sex-change operations abroad (or sometimes in Japan behind the scenes) have tried to change their sex on paper, but most cases have not been successful. For example, the Nagoya High Court rejected one individual's application, since the court decided that a person's sex is determined only by sex chromosomes.[23] The Official Family Registry Act provides that the records can be changed if there has been an 'error or omission.' The newly acquired sex of transgender individuals has not been considered sufficient to satisfy these conditions.[24] The change of transgender individuals' legal sex has thus not been possible until recently.[25]
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Things turned around in 1996, when the Japanese Society of Psychiatry and Neurology (JSPN) officially recognised sex-reassignment surgery. Several people who were diagnosed as suffering from Gender Identity Disorder (GID) underwent sex reassignment surgery, but their legal sex still remained unchanged.[26] The Japanese Society of Psychiatry and Neurology therefore requested that legal professionals assist people with GID to change their legal sex after surgery.[27]
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In 2003, following growing social awareness of GID,[28] a draft of the Exceptional Treatment Act for People with GID (hereafter GID Act) was brought up for discussion. The Act provided five legal conditions that needed to be satisfied to change an individual's legal sex: an applicant should be (1) over 20 years old, (2) not be married at the time, (3) have no children, (4) be deprived of their gonad or gonad function, and (5) have external genital organs similar to other members of the sex to which they were being reassigned. When the applicant has fulfilled these conditions and has been adjudged to have altered their legal sex by a Family Court, the applicant can then be treated as a member of his/her new legal sex with respect to the application of the Civil Code and other laws and ordinances. For instance, FtM (female-to-male) transsexuals who change their legal sex can get married to female partners. One year after the Act came into force in July 2004, the Division of Family Affairs in the Japanese Supreme Court announced that 208 of 218 petitions to change sex were accepted during this period.[29]
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The Act was passed without much resistance in the Diet, although there was much debate, for and against, among the public including transgender and LGB communities and the medical and legal professions. The severe requirements made of individuals before they were allowed to change their sex were the main focus of debate. For instance, the Japan Bar Association, with which all Japanese lawyers are affiliated, made public an opinion paper in which they stated that some of the conditions were too severe and worked against the well-being of people with GID.[30]
Non-discrimination ordinances by local governments
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As mentioned earlier, Japan has no statutory law relating to discrimination except for broad provisions in the constitution. Article 14 of the Japanese constitution prohibits discrimination based on 'race, creed, sex, social status or family origin.' This provision has been interpreted to include some other grounds, but so far there has been no discussion about the inclusion of sexual orientation or gender identity in this article.
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However, some measures and local ordinances, which have been adopted by local governments, refer to the human rights of sexual minorities. As the legal recognition of people with GID progresses, non-discrimination principles and provisions for the well-being of those people have been explicitly inserted into these official documents.[31] LGB issues have also sometimes come up for discussion. When the Tokyo Metropolitan Government drafted its 'human rights guidelines for Tokyo,' OCCUR and several other LGB groups were invited to be present at official hearings of the advisory committee. The committee recommended the inclusion of 'sexual minorities' in the guideline, though the first draft omitted reference to sexual minorities. As a result of around 500 protest letters complaining about this omission, the final guideline in 2000 stated as follows: '[V]arious problems faced by homosexuals have been brought to our attention… and much deeper discussion needs to be pursued.'[32] Things seemed to be going better when the Ministry of Justice put the Draft Bill on Human Rights Protection on the table in 2002. The draft bill designated sexual orientation as a category against which it was forbidden to discriminate. Furthermore, the commentary, which was included along with the draft bill, clearly stated that the term 'sexual orientation' should be understood to include sexual minorities as a whole, including people with GID and intersex, among others.[33] In the end, the bill did not pass in the Lower House because of strong objections regarding issues concerning sexuality. Though the draft bill was subsequently proposed twice more, in 2003 and 2005, it still met with strong resistance and was carried over to the next session (as yet unresolved).
Ongoing legal debates
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The history of the legal discussion concerning sexual minorities in Japan can be said to be just starting. Laws relating to LGB have developed without any explicit legal enemies, such as sodomy laws, which seems to make it a different process from that developing in Western countries. The legal situation facing LGB is a continuing process of trial and error. In contrast, transgender issues are gradually, sometime suddenly, being recognised in the legal field following from the official recognition of GID by medical authorities.
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In this final section, I will describe some of the recent debates concerning the legal recognition of same-sex relationships. Legislation regarding marital relationships is provided in Chapter 4 of the Civil Code and other family related acts. These laws clearly use the word 'otto [husband]', 'tsuma [wife]' or 'haigusha [spouse]' when referring to marital relationships. These words have gendered meanings in normal usage and further, the constitution provides that marriage should be based on the free consent of 'both sexes.' Although it is not impossible to interpret these provisions to include same-sex relationships,[34] it has proven too difficult to persuade the judges. So it is appropriate to say that Japanese law provides only for marriage between two people of different sexes. That is to say, marriage law in Japan does not cover same-sex relationships.
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One possible alternative to protect same-sex relationships is to turn to the adult adoption system. The Japanese civil code provides that an older person can adopt a younger who is over 20 years, regardless of the age difference—even if the gap is only one day (Civil Code, Articles 792, 793). This adoption system is very well known among the Japanese LGB community and some among the older generation have used the system as an alternate method to marriage. Many of the legal protections which people can get from marital relationships can be obtained through adoption. Needless to say, it is only a substitution for legal recognition of same-sex relationships. Although using the adoption system in this way is not itself illegal, it is definitely against the true intent of the system. This means the legitimate relatives or some other interested party may have sufficient legal grounds to file a lawsuit for the annulment of the adoption, based on the non-existence of the intention to 'adopt' on the principle of 'Kōjyo Ryōzoku [good public order and customs].' An alternative to adoption is to draw up a notary document detailing the relationships as a private contract, but although it can be said to be a kind of social or public proof of a relationships to others, this document has no legal effects outside the partnership.[35]
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Debates surrounding the legal recognition of same-sex partnerships have been intermittently staged in Japan since the late 1990s. The first debate was in relation to domestic partnership laws in the United States and the registered partnership system in Scandinavian countries. At that stage, the debate was simply about foreign legislation, and took place primarily among family-law academics or was discussed in popular magazines simply out of curiosity.
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The second debate took place after the Fuchū case following on from the publication of two community-based books entitled Kuia Sutadiizu 96 and Kuia Sutadiizu 97 [Queer Studies 96 and 97]—in 1996 and 1997.[36] The second edition featured an essay on the legal recognition of same-sex relationships. This book contained numerous articles, reports and comments by law academics, journalists and LGB people themselves and is recognised as a product of the so-called 'Gay Boom' in Japan. However, it has not had sufficient impact to inspire widespread public debate or to have had an effect on the legislation.
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The most recent debate to have attracted more widespread attention occurred in the process of establishing the GID Act. There is a strong conflict between activists who support the GID Act and LGB activists concerned about the 'unmarried' clause of the Act. The purpose of this condition is, as one of the drafters of the bill explains, to prevent same-sex marriage, for that is not envisioned in the civil code and other family related acts.[37] Some LGB activists have argued that once this condition is accepted, it will have a negative flow-on impact on the future debate concerning same-sex marriage. They presented an opinion paper to protest the establishment of the GID Act with its 'non-married' condition. This has not, however, had enough impact to delete the 'unmarried' clause, nor raise the level of debate on legislation concerning same-sex relationships.
Concluding discussion
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In this final section, I will summarise the main points in question and offer some comments for future debate about the legal recognition of same-sex relationships in Japan. First, I will examine some of the reasons why people reject legal protection for same-sex relationships. These are (1) inability of same-sex couples to procreate, (2) the best interests of children, and (3) rejection of heterosexual relationships as a role model. The first two rejections come mostly from conservative politicians or academics, and the last one derives from feminist perspectives and LGB people themselves.
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Concerning the first point, many conservative politicians or academics are opposed to legal recognition of same-sex couples, especially under the legal scheme of marriage, since they suppose the main purpose of the marital relationship to be procreation of more than one child. However, this reason is not very convincing since the recent development of artificial insemination now enables same-sex couples to have a child. In addition, many bisexuals may be in a position to have a child. Plus, needless to say, not all heterosexual married couples have children since it is possible for a heterosexual couple to enter into a marital relationship with the understanding they will not have children, or that they have an inability to procreate because of physical inability or through living apart for prolonged periods. In brief, the distinction between heterosexual relationships and homosexual relationships on the grounds of the ability to procreate as a prerequisite for the marital relationship is unreasonable. Moreover, once the ability for procreation is considered as a prerequisite for the marital relationship, women without children will be the next targets for criticism; this fact has been strongly protested by feminists under the banner of sexual and reproductive health and rights in the past decades.
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The second reason, the best interests of children, is often cited when people reject same-sex marriage. The supposed negative effect on children by LGB parents is often used to justify the denial of parental custody or adoption. Though the meaning of 'negative effect' is not precisely defined, it is assumed that a child should grow up as heterosexual, even though children who recognise their homosexual orientation face huge difficulties and oppression from this assumption.[38] The negative effect of heteronormativity on LGB children is always ignored in the discussion of the best interests of children.
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Lastly, there is strong opposition from feminist and LGB groups themselves to the heterosexual marriage system which is fraught with gendered and legal problems. Traditionally in Japan, there have been and continue to exist strong social pressures to establish an idealised familial relationship consisting of a hard working husband, a 'good wife and wise mother' and at least one legitimate child. Many feminists and LGB people insist that rather than co-opting the heterosexual family system, it would be better to establish new kinds of intimate relationships. I partly agree with the argument for establishing new forms of family recognition. However, the problem is the symbolic effect, or effect on the public consciousness and social image, of the marriage system. As the Massachusetts Supreme Court appropriately pointed out,[39] setting up different alternatives for heterosexual and LGB couples could relegate LGB people to the status of 'second-class citizens.'
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In conclusion we can see that the legal situation facing sexual minorities has been gradually changing in the last few decades both in the West and in Japan. Although Japan has a different background than Western countries, in that it has no history of sodomy laws, the legal debate on human rights or legal protection of sexual minority individuals is gradually advancing. This trend could possibly lead to the legal recognition of same-sex partnerships or comprehensive human rights protection for sexual minorities. However, as in some Western countries, there exist strong opposition and divergent opinions both within and outside of sexual minority communities themselves concerning these issues. Furthermore, at present, there is taking place an extraordinarily severe backlash against gender equality in political and legal debates in Japan, and even some female members of the ruling coalition have objected to the promotion of further gender equality. Under these circumstances, the legal debate concerning sexual minorities faces an uncertain future.
Endnotes
[1] See Concurring Opinion of Judge O'Connor, Lawrence v. Texas, 123 S. Ct. 2472 (2003).
[2] Kees Waaldijk, 'Civil Developments: Patterns of Reform in the Legal Position of Same-sex Partners in Europe,' in Revue Canadienne de Droit Familial, 17 (2000):62-88, p. 66.
[3] Donald James West, Homosexuality, Chicago: Aldine, 1968, translated into Japanese by Hitoshi Murakami and Takako Takahashi as Dōseiai, Kyoto: Jinbun Shoin, 1977.
[4] Magnus Hirschfelt, Homosexualität des Mannes und des Weibes, Berlin: Louis Marcus Veriagsbuchhandlung, 1914, translated into English by Michael A. Lombardi-Nash as The Homosexuality of Men and Women, New York: Prometheus Books, 2000.
[5] Bowers v. Hardwick, 106 S. Ct. 2841 (1986). This was overruled by Lawrence v. Texas in 123 S. Ct. 2472, (2002).
[6] Toonen v. Australia, Human Rights Commission on International Covenant on Civil and Political Rights (HRC), Communication No. 488/1992, Views of 4 April 1994, UN Doc. CCPR/C/50/D/488/1992. See also, Dudgeon v. the United Kingdom, European Court of Human Rights (ECHR), Application No. 7525/76, Judgment of 22 October 1981, Ser A 45.
[7] E.g. Toonen v. Australia, para 8.7.
[8] Various non-discrimination or equal opportunity legislation refers to sexual orientation (Tasmania, Western Australia), sexuality (Queensland, South Australia, Northern Territory, ACT) or homosexuality (New South Wales). In addition, there are three countries which provide non discrimination principles based on sexual orientation at the national level: South Africa, Fiji and Ecuador. For example, see Constitution of the Republic of South Africa Act, No. 200 of 1993, Section 8(2).
[9] For example, discrimination based on gender history (Western Australia), gender identity (Queensland), transsexuality (ACT). Other states explicitly interpret the word sexuality (South Australia, Northern Territory) or sexual orientation (Tasmania) to include transsexuality.
[10] In Australia, the federal government amended the marriage law so as to exclude same-sex marriage in 2004, but same-sex partnerships are recognised as de facto relationships in some legal areas. For comprehensive research about legal recognition throughout the world, see Robert Wintemute and Mads Andenæs (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and Iinternational Law, Oxford: Hart, 2001.
[11] Young v. Australia, HRC, Communication No. 941/2000, Views on 18 September 2003, UN Doc. CCPR/C/78/D/941/2000. Karner v. Austria, ECHR, Application No. 40016/98, Judgment of 24 July 2003, in HUDOC on ECHR website, URL: http://www.echr.coe.int/echr (site accessed 22 April 2004). There is one unfavorable case concerning an international human rights violation claim on the refusal to issue a marriage license to lesbian couples, see Joslin et. al. v. New Zealand, HRC, Communication No.902/1999, Views 17 July 2002, UN Doc. A/57/40, at 214.
[12] I use this term to include the concept of transsexual, transgender and people with gender identity disorder or gender dysphoria as a whole in this paper.
[13] Goodwin v. the United Kingdom, ECHR, Application No. 28957/95, Judgment of 11 July 2002, in HUDOC. I v. the United Kingdom, ECHR, Application No. 25680/94, Judgment of 11 July 2002, in HUDOC.
[14] Yuko Higashi, 'Iryō kainyu ni yoru sei no sai shitei no hōteki yōken' [Legal condition on sex re-assignment by medical intervention], in Sei Dōitsusei Shōgai to Hōritsu, [Gender Identity Disorder and the Law], ed. Akira Ishihara and Toshiyuki Oshima, Kyoto: Kōyō Shobo, 2003, pp. 155-162.
[15] In fact there was a sodomy law in the Meiji era, but it was only in effect for a short period (around 12 years) and was never rigorously applied. See Makoto Furukawa, 'Sekushuaritii no henyō kindai Nihon no dōseiai wo meguru mittsu no kōdo', [Transformation of sexuality: three codes framing homosexuality in modern Japan], in Nichi-bei Josei Jānaru 17 (1994):29-55.
[16] The Constitution has some provisions for human rights albeit broadly and ambiguously expressed, which entered into force in 1947 and which have never been amended.
[17] This situation is obviously against the resolution of the UN General Assembly, entitled 'Principles Relating to the Status of the National Human Rights Commission,' Commission on Human Rights resolution 1992/54 of 3 March 1992 annex, Official Records of the Economic and Social Council, 1992, Supplement No. 2 (UN Doc. E/1992/22), chap. II, sect. A; General Assembly resolution 48/134 of 20 December 1993 annex. It has been reiterated in many international human rights treaty bodies. See UN Doc. CCPR/C/79/Add.102, C.9; UN Doc. CRC/C/15/Add.90, C.10.
[18] E.g. Nagoya District Court, Case no S46-Ta-67, 29 February 1972, in Hanrei Jihō 670 (1972): 77-78. (The court agreed to the divorce and payment of consolation money to the wife, because of the husband's homosexuality and the difficulty of continuing their marital relationship).
[19] Tokyo District Court, Case no H3-Wa-1557, 30 March 1994, in Hanrei Taimuzu 859 (1994):163-79.
[20] Tokyo High Court, Case no H6-Ne-1580, 16 September 1997, in Hanrei Tamuzu 986 (1997):206-15.
[21] Tokyo District Court, Case no S40-GoWa/TokuWa-307/339/927, 15 February 1969, in Keiji Saiban Geppō 1-2 (1969): 133-159. Tokyo High Court, Case no S44-U-1043, 11 November 1970, in Kōtō Saibansho Keiji Hanrei Shu 23-4 (1971):759-68.
[22] As some case reviews have pointed out, the judgment does not state that the sex-change operation itself is a crime, but rather criticises how the accused surgeon accomplished the operation without appropriate diagnosis and informed consent. See Saku Machino, 'Seitenkan Shujutsu' [Sex-change operation], in Bessatsu Juristo 33 (1971): 258-61; Kozo Tomita, 'Seitenkan Shujutsu to Keiji Sekinin' [Sex-change operation and criminal liability],' in Hōritsu no Hiroba 23-5 (1970):20-23.
[23] Nagoya High Court, Case no. S54-Ra-208, 8 November 1979, in Katei Saiban Geppō 33-9 (1980):61-64.
[24] By contrast, in the case of intersexuals who are diagnosed with pseudo-hermaphroditism the Sapporo High Court has admitted a change of legal sex, see Sapporo High Court, H1-Ra-17, 13 March 1991, in Katei Saiban Geppō, 43-8 (1991):48.
[25] E.g. Tokyo High Court, Case no H11-Ra-1979, 9 February 2000, in Hanrei Jihō 1718 (2000):62-68.
[26] E.g. Tokyo High Court, Case no H15-Ra-94, 27 March 2003; Supreme Court, Case no H15-Ku-409, 23 May 2003 (both unpublished in official case books). These cases are recorded in Chieko Nohno (ed.), Kaisetsu Sei Dōitsusei Shōgai-sha Seibetsu Toriatsukai Tokurei Hō (Commentary on the Exceptional Treatment Act for People with GID), Tokyo: Nihon Kajo Shuppan, 2004, pp. 258-65.
[27] Special Committee on Gender Identity Disorder (GID), 'Sei Dōitsusei Shōgai ni kansuru Toushin to Teigen' [Report and Recommendation on GID], 28 May 1997.
[28] In 2001, one popular actress playing the character of an FtM transgender pupil in the popular TV drama '3-nen B-gumi Kinpachi Sensei' (Mr Kinpachi, teacher of class 3-B) had a huge public response. This program, which is a long-lasting drama series dealing with usual day-to-day life in a junior-high school, started in 1979. In 2002, an MtF transgender stood in a council election for Setagaya-ward, which is one of the richest and most conservative areas in Tokyo. She was elected in 6th place along with 52 new Councilors. Also there is a case on the punitive dismissal of a transgender employee (Tokyo District Court, Case no H14-Yo-21038, 20 June 2002, in Rōdō Hanrei 830 (2002):13-21), which will become a pioneer case on human rights issues on transgenders.
[29] Saikō Saibansho Jimu-Sōkyoku Katei-Kyoku [Family Division of Secretariat for Supreme Court], 'Seibetsu no toriatsukai no henkō mōhitate jiken su' [Statistics of the number of application for change of legal sex], July 2005, available at Supreme Court website, URL: http://courtdomino2.courts.go.jp/home.nsf, site accessed 14 August 2005.
[30] Japan Bar Association, 'Sei dōitsusei shōgai-sha no hōteki seibetsu ni kansuru iken-sho' [Opinion paper on the legal sex of people with GID], 8 July 2003.
[31] E.g. Danjo Byōdō no Machi Zukuri Jōrei [Ordinance of Community Renovation based on Equality for Men and Women], Yame-shi, Fukuoka-ken, enacted 1 April 2004 (Section 7[4]: No-one should discriminate based on gender identity disorder within home, community, school, workplace or other places in society); Danjo Byōdō Shakai no Keisei no Sokushin ni kansuru Jōrei [Ordinance to Promote and Establish a Society with Equality for Men and Women], Sakai-shi, Osaka-fu, enacted 1 April 2002 (Section 3 [6], not only applies to men and women, but to the human rights of people with gender identity disorder, people with ambiguous physical sex by nature and any other people should be considered).
[32] Akitoshi Yanagihashi, 'Towards Legal Protection for Same-Sex partnerships in Japan: From the Perspective of Gay and Lesbian Identity,' in Legal Recognition, Wintemute and Andenæs (eds), p. 352.
[33] Hiroyuki Taniguchi, 'Jinken Yō Hō to pātonāshippu seido' [Draft Bill of the Protection for Human Rights and the partnership legislation],' Niji 4 (2003):42-48.
[34] Yukiko Tsunoda, Sei no hōritsu-gaku [Legal science of sexuality], Tokyo: Yuhikaku, 1991, pp. 210-12.
[35] Cf. Yanagihashi, 'Towards Legal Protection,' pp. 353-55.
[36] Kuia Sutadiizu Henshū Iinkai (ed.), Kuia Sutadiizu [Queer Studies] 96 and 97, Tokyo: Nanatsumori Shobō, 1996 and 1997 respectively.
[37] That is if an already married MtF transsexual changes legal sex from male to female without ending the marital relationship with her wife, it would become a marriage between two legally recognised women, and vice versa for married FtMs. This condition does not prevent an MtF transsexual from marring a person of the same pre-operative sex (i.e. male) after gaining the new legal sex status according the GID Act, since they would be of opposite sex in legal terms.
[38] Sonia Martin, 'A Child's Right to be Gay: Addressing the Emotional Maltreatment of Queer Youth,' Hastings Law Journal 48 (1996):167-96.
[39] Goodridge & others v. Department of Public Health, Massachusetts Supreme Judicial Court, SJC-08860 (2003).
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