Can a trans woman be the legal father of a child in Japan? The timing of gender change is critical

Same method, different time

A, who is in his 40s, and B, who is in his 30s, are lovers. A is a transgender woman who has completed gender change registration, and B is a cisgender woman. A had frozen his sperm before proceeding with a series of gender reassignment surgeries.

In the summer of 2018, B gave birth to the eldest daughter after artificial insemination using A's pre-frozen sperm. In 2020, I used the same method again and gave birth to my second daughter. The method and process of artificial insemination are the same, the only difference is that A completed the gender change registration in November 2018. In other words, when B gave birth to the eldest daughter, A's gender column on the identity document was still male, but when B gave birth to the next daughter, A's gender column on the identity document had been changed to female.

The first instance both declared defeat

Japan does not legally recognize same-sex marriage, and A and B do not have a formal marriage relationship. Generally speaking, if it is a heterosexual couple who is not legally married, after the woman gives birth to the child, she can register the man as the child's biological father as long as she submits a document called "cognitive period" to the household registration office.

The question is, what about A? Whether it was the birth of the eldest daughter or the second daughter, B's application for A to be the "biological father of the children" for the children was rejected. Therefore, A and B appealed to the court and became an indicator case.

In February this year, the Tokyo District Court ruled that the "mother-child (daughter) relationship" is based on the mother's pregnancy and childbirth process. A transgender woman did not go through such a process, so it did not recognize the parent-child relationship between A and her daughters and rejected it. The demands of A and B who sued on behalf of their daughters.

The second instance only recognized the eldest daughter's right to cognition

After the case was appealed to the second instance, a different result was ushered in. The Tokyo High Court announced yesterday (19) that the "child" mentioned in Article 787 of the Civil Code refers to "a child whose parents have a biological father-son relationship through sexual behavior." Anyone who has a biological parent-child relationship can exercise the right to cognitive claim, that is, to apply for being the biological father of the child.

Article 781 of the Civil Law (the way of knowing)
Cognitive は, 戸 Registration Law の 定 め る と こ ろ に よ り 偑 出 る こ と に よ っ て す る.

The judge went on to say that the father referred to in Article 787 of the Civil Code is the biological father with reproductive function, so when B gave birth to the eldest daughter, A met this definition, so he accepted the "cognition" of the eldest daughter and determined that A was the eldest daughter. 's father. However, when B gave birth to the next daughter, A’s legal gender had already been changed to female. According to the “ Special Law on Sexual Identity Disorders ”, which is specially used to regulate transgender gender change procedures in Japan, the reproductive function must be lost (making the gonads Loss of function) can only change the gender, so A no longer meets the standard of Article 787 of the Civil Code at that time, so the "knowledge" of the second daughter cannot be accepted.

In other words, even if A is really the "biological father" of the second daughter, since A has no reproductive function at that time, he cannot be the legal father of the second daughter. In addition, the judge also rejected A's application to be the "mother" of the children.

Lawyer: Concerns about violating sisterhood fairness

In the face of this verdict, the plaintiff's appointed lawyer Nakaoka しゅん said that he did not expect the verdict to be like this. This time, the eldest daughter's right to recognize the request was recognized, and the result of the lawsuit was better than the first instance, but the judge rejected the second daughter's request for recognition. , there is a suspicion of violating the fairness of sisters. According to common sense, for sisters born to the same couple, the elder sister has a father, but the younger sister does not have a father. It is a very strange thing, and the inequality between the sisters should be eliminated. After all, the judge also emphasized in the judgment that from the perspective of child welfare, "cognition" is a very important right of children, and the rights of children will not be affected because parents change gender. If the sisters are born at different times, or because of the gender change, one has a father and the other has no father, it is really strange.

Client: Children's "cognitive" process comes first

In an interview, A said that the most important thing in this case is to complete the children's cognitive procedures and become the legal parents of the children. Therefore, in this verdict, only the eldest daughter's right to cognition is recognized, and she will appeal to the Supreme Court for the second daughter. Whether it is registered as "father" or "mother", this small detail is relatively unimportant, after all, she is really the "biological father" of the children. I believe that for the generation of children, "having two fathers" or "having two mothers" will become more and more common, and it is not surprising that "having two mothers" is not at all. She also mentioned that from the point of view of child welfare, the recognition of the eldest daughter's right to cognition requires the recognition of the second daughter's right. There should be no distinction because the children's parents are sexual minorities. Chance to be gossiped.

The conditions for applying for a change of gender are too strict

In fact, this case is not the first recent lawsuit concerning transgender women and underage children. The problem lies in the " Special Law on Sexual Identity Disorders " that regulates the procedures for transgender gender change. According to section 3 of the Act, all of the following must be met in order to apply for a change of sex:

1. 18 years or older
2. Not currently married
3. No underage children at this stage
4. Does not have gonads, or has permanent gonads
5. Complete gender reassignment surgery and have genitals that match the desired gender

Article 3 of the " Special Cases of Sexual Identity Disorders Act "<br class="smart">Family Court は, Persons with Sexual Identity Disabilities Gender の 扱い の 変 の trial をすることができる.
18 years old and above.
Two now に marriage を し て い な い こと.
Three is now a minor child がいないこと.
Four gonads せ ん が な い こ と and は gonad の function を Yong 続 に ow く state に あ る こと.
Fiveその body に つ い て his の sex に system る body の genitals に system る part に approximation す る 外観 を Prepare え て い る こと.

To change the gender on the identity document, you must be sterilized (removed or disabled); if you have already given birth to a child, you must wait until the child is an adult (currently 18 years old) before you can apply for a change of gender. The Sexual Identity Disorders Exception Act has ruled out the possibility of transgender people of childbearing age having children.

In fact, when the "Special Law on Sexual Identity Disorders" was introduced in 2004, the earliest provision was that as long as there was a child, no matter how old the child was, the gender could not be changed. It was not until the law was revised in 2008 that point 3 was changed to "It is not acceptable to have underage children at this stage."

Unconstitutional review all lost

Since the introduction of the Sexual Identity Disorder Special Cases Act, it has undergone numerous constitutional review lawsuits.

In 2007, before the amendment of the Sexual Identity Disorders Act, there was a case that questioned the unconstitutionality of "one must have no children in the event of a gender change". Chaos" was a reasonable measure, but the law was revised the following year.

In January 2019, another question about the unconstitutionality of "must be unmarried and have no reproductive function" when applying for gender change, the Supreme Court held that "if the parties are allowed to retain the reproductive function before the gender change, the children born will cause social chaos." , so this is a necessary supporting measure, but 2 of the 4 judges mentioned in their supplementary opinions that even so, it cannot be denied that it is unconstitutional to do so, calling for relaxation of the conditions.

In March 2020, another regulation on applying for gender change to be unmarried at the moment, the court held that in Japan, where only heterosexual marriages are currently recognized, if the regulations that transgender people do not need to look at their marital status when applying for gender change are relaxed, it will Caused chaos in the current marriage order, so this provision is not unconstitutional.

Lost again at the end of last year

In the latest case, in Hyogo Prefecture in 2019, a transgender woman wanted to apply for a gender change, but because she had a child with her ex-wife before her divorce, the family court rejected the gender change application, so she filed a "sex change" with the court. Section 3 of the Sexual Impairment Exception Act violates the right to the pursuit of happiness guaranteed by Article 13 of the Constitution and equality under the law guaranteed by Article 14.

The first and second instance of this case were successively lost. In November last year, the Supreme Court adopted a majority decision. Four of the five judges believed that the current law was constitutional, and only one judge thought it was unconstitutional. Judge Yu Heke, who raised the dissenting opinion, believed that the purpose of changing the gender of the household registration was to conform to the explicit gender expression. If the explicit gender expression and the gender on the household registration are inconsistent, causing problems such as employment of the parties concerned, this will affect the welfare of the child. adverse effects, while also violating the freedoms guaranteed by Article 13 of the Constitution.

Judge Yu Heke also mentioned that even if a transgender person is allowed to change gender, the parental column on the household registration of the children will not change, and they still have a parent-child relationship in law, which will not affect the family relationship of most people. , "This will cause chaos in the family order" is not a persuasive reason.

Call for further amendments to the law to ease restrictions

After the verdict was released, transgender parties and advocacy groups protested in Tokyo, calling on the government to repeal the rule that transgender people should not have minor children when they change their gender.

According to judicial statistics, since the "Special Cases of Sexual Identity Impairment Law" hit the road in 2004, by the end of 2021, a total of 10,301 people have successfully changed their genders, calling for the "Special Cases of Sexual Identity Impairment Act" to be revised again to amend the restrictions on gender change. .

This article was simultaneously published in the Japanese current affairs まとめ translation of Kaori Ishikawa .