A Japanese high court on Wednesday approved an official gender change for a transgender woman who has not undergone confirmation surgery as legally required, in a rare decision.
The clause requiring gender confirmation surgery is "suspected of being unconstitutional" as it forces an individual to choose between undergoing surgery or giving up on gender change, the Hiroshima High Court said.
The court acknowledged that hormone therapy can alter the appearance of genitalia even without surgery and admitted that the body parts of the petitioner, who was assigned male at birth, are already "feminized."
The petitioner, a resident of western Japan who has only disclosed her age as younger than 50, said through her lawyer she was "happy to be free of the difficulties" stemming from the disparity between her official gender status and the gender she identifies with.
The high court approved the gender change for the petitioner in reexamining the case sent back by the Supreme Court.
In the trial, the petitioner argued that to satisfy the law's clause on gender confirmation, surgery to remove the penis was required, which was an excessive burden.
But the request for a gender change had been rejected by the family court and the high court due to the lack of gender confirmation surgery.
It is extremely rare for a gender change to be approved for male-to-female transition without gender confirmation surgery, such as through removal of the testicles, according to the lawyer.
The high court, meanwhile, maintained that the purpose of the clause on gender confirmation surgery, which is to prevent exposure to genitals of the opposite sex in places such as public baths, is legitimate.
The top court, in a landmark ruling in October, said another legal requirement for a person's reproductive organs to be removed to register a gender change was unconstitutional, but it said the high court should revisit the gender confirmation surgery clause.
The law for people with gender dysphoria, which came into force in 2004, stipulates five conditions for those wishing to register a gender change, in addition to a diagnosis of gender dysphoria from at least two physicians.
The five conditions are that an individual be no less than 18 years old, unmarried, have no underage children, have "no reproductive glands" or possess reproductive glands that "have permanently lost function," and possess "a body that appears to have parts that resemble the genital organs of those of the opposite gender."
The high court decision could add pressure on the government to review the clauses requiring surgery, legal experts said.
In the October ruling, the top court said the law's sterilization requirement violated Article 13 of the Constitution, which the court said guarantees individuals' freedom from "invasion into their body against their will."
Public awareness regarding protection of the rights of sexual minorities has been growing in Japan, the only member of the Group of Seven countries that has not legalized same-sex marriages or civil unions.
In March, another Japanese high court ruled that the country's lack of legal recognition for same-sex marriages is unconstitutional, upholding a lower court decision and in line with other district court judgments on the issue.
On the state level, Japan's parliament enacted legislation in March last year to promote understanding of sexual minorities, aimed primarily at eliminating discrimination based on sexual orientation.
An increasing number of municipalities have also issued partnership certificates to make it easier for same-sex partners to enjoy some of the same public service benefits as heterosexual couples, although they are not legally binding.
The latest ruling by the high court is final as it was uncontested but only applies to the petitioner.
Related coverage:
Japan top court rules transgender woman "father" of girl born after switch
Use of donor human milk banks growing in Japan to help premature babies
Japan society on transgender issues to drop "disorder" from name
