Title:
Appeal concerning an Application for Permission to Revise a Family Registration
Court:
Third Petit Bench of the Supreme Court of Japan
Citation:
Case ID 28212731
Supreme Court, Third Petit Bench Heisei 25 (Kyo) No. 984
Civil Cases 67 kan No. 9 Page 1847
Case published on court website
Date:
10 December 2013
Instrument(s) Cited:
The Law regarding Special Provision for the Treatment of the Gender of Persons with Gender Identity Disorder (“GID Law”), Articles 2, 3.1 and 4.1
The Family Registration Law, Articles 13, 24.2, 44.3, 45 and 113, and Article 35.16 of its implementation rules
Civil Law, Articles 733, 772 (presumes that a wife has become pregnant with the child of the man who she is married to at the time) and 774 (a child born to a married couple is presumed to have been fathered by the man in the couple and to be a “legitimately” born child, subject to certain limited exceptions)
Case Summary:
Background:
A person (X1) who was female underwent surgery to become, and subsequently registered as male. X1 then married a woman (X2), as permitted by the GID Law, in April 2008. X2 bore a child (A) in November 2009. X1 applied in January 2012 to have the family registry reflect that X1 was A’s father, and that A was born while X1 and X2 were married.
The Shinjuku ward mayor indicated that there was a problem with the application because Article 774 of the Civil Law could not be considered applicable in the case of A, and asked for the application to be fixed. X1 did not comply with the ward mayor’s request, so the ward mayor, with permission from the Tokyo legal affairs bureau, filled in the family registry for A with a blank for father, a notation that A was X2’s oldest son, and the entry date as of a date in March 2012.
X1 and X2 filed this action to demand permission to revise the family registry to show X1 as the father, date the notification as of January 2012, and delete the subsequent entries made by the Shinjuku ward mayor, on the grounds that A should be presumed a “legitimately” born child based on Article 772 of the Civil Law.
The original decision held that the presumption underlying Article 772 was lacking in this case because it is clear that there is no blood relationship between the putative father and son, due to the putative father being formerly a female who has changed his gender pursuant to Article 3.1 of the GID law.
Issue and resolution:
Discrimination; whether or not a child of a married couple with a transgender father should be presumed the son of the transgender father by operation of Article 772 of the Civil Law and Article 3.1 of the GID Law. The Supreme Court held that the child should be presumed the son of the transgender father, overruling the lower court decision and the Shinjuku ward mayor’s decision.
Court reasoning:
Article 3.1 of the GID Law provides that a transgender man such as X1 is to be treated for all purposes under law as a man. This includes being able to marry a woman such as X2. It also should include having a “legitimate” child in such a marriage, because one of the major effects of being married is the ability to have children who are presumed to be “legitimately” born to both parents.
Impact:
The Ministry of Justice issued a notification on 27 January 2014 directing that the family registry be revised for the couples who had children since the GID law permitted such change of gender registration and marriage and who had such a blank for father on the family registry of their children, and those born going forward as well. According to the Ministry of Justice, there were 45 such couples as of 20 January 2014. The effect of this case will therefore be to allow all such children to have family registers that indicate that they have two parents.
Link to Full Judgment:
http://www.courts.go.jp/hanrei/pdf/20131211164109.pdf
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.