*Translated by Google translate

Introduction

Although they are not many, couples in Japanese society exist in which one person in a married couple who is legally a man and a woman has gender identity disorder and wishes to change their gender status. The plaintiff in this lawsuit, Ms. A, is one of them.

Applicant A is a transgender woman who currently lives her daily life as a woman.

Mr. A married his wife, Ms. B, in 2015.

A had been open about her gender dysphoria to B before they started dating, and after they got married, she went ahead with her gender transition with B's encouragement. B says she had some conflicts, but she still supported A. The two now live happily together as a lesbian couple.

Although Ms. A is currently living her life being recognized as a "woman" by those around her, her official documents state she is a "man." Under current law, in order to change her legal gender status to eliminate this disadvantage, she must divorce Ms. B. Ms. A is faced with a harsh choice between being "effectively forced into an unwanted divorce from Ms. B" or "being forced to come out against her will each time because her gender status does not match her actual lifestyle, or even being unable to even confirm her identity." This case is a request to allow her legal gender status to be changed without divorce.

Summary of the complaint

Petitioner A files a petition requesting that his/her gender on the family register be changed from "male" to "female" without divorcing Ms. B.

Regarding Applicant A

The petitioner, Ms. A, is a transgender woman (in her fifties) living in Kyoto Prefecture. She lives her daily life as a woman and has legally changed her name to a female name. However, the legal sex assigned to her at birth was male, and even now she is listed as "male" on her family register, identification card, and other official documents.

Ms. A lives her daily social life as a woman and is recognized as a woman by those around her. Therefore, when she goes through procedures that require identity verification or official documents with a gender field, others look at her with confusion.

- "Why does a woman have an ID that says 'male'?"

- "Did the wife bring the documents for her husband?"

Each time this happens, Ms. A is forced to carefully explain the situation, and is pressured into coming out (disclosing that she is transgender) despite her wishes.

Why do we have to get divorced?

Ms. A meets all of the requirements set out in the Act on Special Cases for the Treatment of Gender Identity Disorder (hereinafter referred to as the "Special Cases Act") except for the requirement in Article 3, Paragraph 1, Item 2 of the Act that she is "not currently married" (the so-called "non-married requirement").

In other words, if A simply divorces B, all the requirements will be met and she will be legally treated as a "woman." The non-marriage requirement forces A to choose between divorcing B and being treated as a woman under the law in accordance with her actual social circumstances, or maintaining her marriage with B and continuing to be treated as a man under the law.

Neither A nor B wish to divorce. They are both important partners to each other. The fact that their relationship is legally protected by the marriage system is an important support for them as they continue to spend their irreplaceable days together with peace of mind.

Therefore, Ms. A decided to start a lawsuit, seeking to be treated according to the law based on her gender, in line with her actual social life as a woman, based on the premise that the non-marriage requirement is unconstitutional.

"Why do we have to get divorced?" is what both Mr. A and Mr. B are thinking.

Issues in the petition

What A wants

Change A's gender status from "male" to "female"

Requirements for changing gender status

The requirements for changing your legal gender are set out in the Special Cases Act.

Furthermore, Article 24, paragraph 1 of the Constitution can be said to guarantee free and equal decision-making regarding marriage.

If these requirements are met, the family court will approve a change in gender status.

*As a result of a Supreme Court decision on October 25, 2023, which determined that requirement No. 4 was unconstitutional and invalid, it is no longer necessary for any court to meet requirement No. 4.

Constitutional ruling requested by the court

Article 3, Paragraph 1, Item 2 of the Special Act stipulates the requirement that "the person is not currently married."

In other words, it imposes the condition that "married transgender people with gender identity disorder cannot change their legal gender status unless they divorce."

Because the non-marriage requirement violates the Constitution and is invalid, we will ask the court to rule in favor of recognizing Mr. A's change of gender status even if he does not meet this requirement (even if he remains married to Ms. B).

Why non-marriage requirements are a violation of human rights

(1) The purpose is to "prevent same-sex marriages"

The purpose of the non-marriage requirement is to "prevent same-sex marriages."

If Person A changes their legal gender status while continuing their marriage to Person B, Person A and Person B will be legally married to each other as women, but the requirement to seek a divorce is in order to prevent the creation of married same-sex couples.

(2) Forcing divorce on couples who do not actually want to divorce

Effectively forcing divorce on couples who do not wish to divorce is a violation of human rights.

We argue that the non-marriage requirement is unconstitutional and invalid, as it violates Articles 13 and 24 of the Constitution.

Being treated according to one's gender identity and living circumstances is a human right guaranteed by Article 13 of the Constitution. The importance of this right has been confirmed in other court cases in which the human rights violations of other gender status change requirements were at issue.

Furthermore, the right of couples who do not wish to divorce not to be forced to do so is guaranteed by Articles 13 and 24 of the Constitution. Article 24 of the Constitution stipulates that the choice of whether or not to marry is left solely to the mutual agreement of both parties, and that no other person or public authority may intervene or interfere in the decision. It can be said that Articles 24 and 13 of the Constitution also guarantee that couples who are already married and enjoying a happy relationship will not be forced by law to divorce.

Mr. A finds himself in a situation where his constitutionally guaranteed human rights are being weighed against one another, and choosing one means giving up the other.

3) “Preventing same-sex marriage” is not a valid reason

The purpose of the non-marriage requirement, which is to "prevent same-sex marriages," no longer has any legitimacy.

It is true that same-sex couples cannot legally marry at present. However, the accumulated court decisions in the Freedom to Marry Lawsuit, which seeks marriage equality, have made it clear that it is unconstitutional for same-sex couples to be denied the benefits of the marriage system and to be left in a situation where there is no system in place to legally notify or protect their relationship.

Rather than conforming to the "current situation where same-sex couples cannot marry" by forcing divorce on Mr. A and Mr. B, who wish to continue their marriage, we should change the current situation, which violates the Constitution.

Social significance

Although there are not many couples who are legally married but one of them has gender identity disorder and wishes to change their gender status, there are others living in Japanese society besides Mr. and Mr. B. Other couples are being forced to make the same harsh choice.

On the other hand, although this case is different from the realization of marriage equality sought by unmarried couples, or the legalization of so-called same-sex marriage, in terms of the life circumstances and legal status, both are rooted in the right to "freedom of marriage." I believe that by taking a multifaceted approach, both cases will influence each other and bring us closer to the realization of "freedom of marriage" and "marriage equality" and to legislative measures as soon as possible.

The petition date, July 16, 2024, will be the 20th anniversary of the enforcement of the Special Cases Act. Now that other requirements of the Special Cases Act have been pointed out as violating human rights both domestically and internationally, we hope that this petition will help resolve other human rights issues faced by transgender people.

Use of funds

Your donations will be used to cover litigation costs (excluding attorney's fees, such as stamps, copying, transportation, and fees for requesting written opinions) and campaign costs to influence society and legislation. They will not cover attorney's fees.

We appreciate your generous support, and if we have any money left over, we will donate it to organizations that support those affected.

The applicant's thoughts

Applicant A

I married my wife, who understood that I am a woman inside, and for the past nine years we have built a harmonious family relationship, helping and complementing each other.

On the other hand, with the support of his wife, he has been working hard to transition since several years ago, and now lives his life recognized as a woman in all aspects of society.

However, under the legal system, you cannot change the "gender on your identification card" to "female" while married.

Because of this, every time I present my identification I have to explain my sexuality, which forces me to "come out unwillingly," causing me great distress.

To resolve this problem, I would have no choice but to "divorce" my wife, which would destabilize the family relationship we have built up over the years and cause serious disadvantages not only to me but also to my wife.

The reason for the existence of the "non-marriage requirement" in Article 3, Paragraph 1, Item 2 of the Gender Identity Disorder Special Cases Act, which is the issue in this lawsuit, has been explained as being "because if (changing legal gender status during marriage) is approved, it will result in a same-sex marriage," but in other words, this is essentially the same as saying, "Wait until cisgender homosexuals, who are the majority, are saved, and minorities should know better." However, in Germany, the "non-marriage requirement" was abolished nearly 10 years before same-sex marriage was recognized. We decided to take the case to court in order to end the current situation in which people can only choose between "changing the gender on their ID" or "maintaining their marriage" unless same-sex marriage is recognized.

We would appreciate your continued support.

Applicant A's wife

The time we've spent together as a couple, the fun times and the frustrating times we've had together, are irreplaceable.

I think it's the same for every family.

While some people may choose to separate for their own reasons, this is not something we want.

Why is it wrong to want to continue living the same way as before?

Message from the lawyer in charge

The fundamental principle of the Constitution (constitutional values) is that all people should be respected as individuals, and that the life and personality of each individual should be equally protected. Gender awareness is at the core of one's personality, and the right to have one's gender identity respected is guaranteed as part of the personal rights guaranteed by Article 13 of the Constitution, which guarantees the right to pursue happiness.

Being treated as a gender that differs from one's gender identity is itself extremely painful. Furthermore, if a third party learns through official documents that one's outward appearance and legal gender are different, one may be forced to come out against one's will, and may be at risk of being subjected to harassment, discrimination, and prejudice.

Sexuality is diverse and no one can force you to be sexual. I hope that we can create a society where no one has to be afraid to live as they are, whatever their sexuality.

We are taking this case to court to achieve that goal.

Introducing the Lawyers

Yoko Mizutani (Aichi Bar Association)
Satoshi Horie (Aichi Prefecture Bar Association)
Hirotaka Honda (Tokyo Bar Association)
Hiromi Minagawa (Sapporo Bar Association)
Akio Naka (Kyoto Bar Association)
Ayako Kotobuki (Kyoto Bar Association)
Kaori Mukai (Tokyo Bar Association)

in conclusion

We hope to see a legal system that allows couples who wish to marry to not be discriminated against on the basis of their sexuality, and to be able to live smoothly together with their gender identity and actual lifestyle being treated according to the law.

We ask for your support in our lawsuit so that everyone can live as they are, regardless of their sexuality, and so that they do not have to sacrifice anything in order to choose to live as they are.