1. ISFL World Conference 2017
Amsterdam, VU University Amsterdam
Possibility of Current Family Law - Considering the Procedure to Alter Legal Gender Status
Mai ISHIJIMA, Research Associate, Faculty of Law, Waseda University Japan Contact to:

2. Purpose of this presentation
　Could literal Application of current family law offer an interim solution for newly-recognized parent-child relationships?
Especially it could help to abolish existing requirements of physical modifications and sterilization from the procedure to alter one’s legal gender.

3. Japanese Law: How to Establish Parent-Child Relationships?
Mother-Child Relationship
The woman who has given birth to a child is mother of the child. 　　　　　　　 (Case Studies)
Father-Child Relationship
A child conceived* by a wife during marriage is presumed to be a child of her husband.　　 　　　　　　　 (Civil Code Art. 772)
A father or a mother may recognize his/her child out of wedlock (Civil Code Art. 779)
*A child born after 200 days from the marriage or within 300 days of the day of the dissolution or rescission of marriage are presumed to have been conceived during marriage.

4. Current Trend in Japanese Case Studies
A gestational (host) surrogacy took place in a foreign country. Shall mother-child relationship be established between the child and the intended mother? (2007)
Shall “Presumption of Paternity” be applied to married trans man? (2013)
Could the presumption of the father- child relationship between M and the child be rebutted, based on the DNA test conducted by the wife? (2014)
M F M2
Kid
Presumption of
Paternity
Biological tie
Living as a family

5. Japanese “GID” Law Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder (2003-)
(Art. 3 ) A person with Gender Identity Disorder may request to alter their legal gender status to family court, if the person:
(i)　 is not less than 20 years of age;
(ii)　 is not currently married;
(iii) currently has no child who is a minor;
(iv)　has no reproductive glands or whose reproductive glands have permanently lost function; and
(v)　 has a body which appears to have parts that resembles the genital organs of those of the Opposite Gender.

6. What Types of Parent-Child Relationships Could occur?
(A) A person who changed his legal gender from Female to Male, got married with a woman, and this spouse gave birth to a child.
(B) A person who changed his legal gender from Female to Male recognized a child .
(C) A person who changed his legal gender from Female to Male, gave birth to a child by himself.
(D) The ex-wife of a person who changed her legal gender from Male to Female, gave birth to a child during the presumption period*.
(E) A person who changed her legal gender from Male to Female recognized a child.
*Within 300 days after divorce

7. Case A, B, and C Child Child Child (A) (B) (C) (F to) M F (F to) M F
Presumption of
Paternity
Recognizes
(C)
(F to) M( )F
Child
(A) A person who changed his legal gender from Female to Male, got married with a woman, and this spouse gave birth to a child.
(B) A person who changed his legal gender from Female to Male recognized a child .
(C) A person who changed his legal gender from Female to Male, gave birth to a child by himself.

8. Case D F (M to) F Child (D) Dissolution/ Rescission of Marriage
Presumption of
Paternity t
(D) The ex-wife of a person who changed her legal gender from Male to Female, gave birth to a child during the presumption period*.
(E) A person who changed her legal gender from Male to Female recognized a child.
Dissolution/ Rescission
of Marriage
Within 300 days
Birth of the Child
Altering one’s legal gender
from Male to Female

9. Altering one’s legal gender
Case E
(E)
　 F (M to) F
Child
Recognizes t
Amendment of requirement (iii) (no-minor child) is also necessary
Requirement iii*
(No minor child)
Recognition
Birth of the Child
Altering one’s legal gender
from Male to Female

10. Summary of Case A-E
In the case (A), the relationships of the trans man to the child would be Father.
In the case (B), the relationships of the trans man to the child would be Father.
In the case (C), the relationships of the trans man to the child would be Mother.
In the case (D), the relationships of the trans woman to the child would be Father.
In the case (E), the relationships of the trans woman to the child would be Father.

11. This is only an “Interim” Remedy…
Where mother-child relationship can be only established by the fact of giving birth, there is no chance for trans woman to be a mother of the child.
Though the existing law already allows discordance of father/mother status and male/female status, this discordance is still not preferable as it may cause hesitation to recognize a child or/and to have their own child.

12. Conclusion and Comment
Though the family law itself should be revised and the definition of the father/mother/parent in the law should be examined, the elimination of physical requirements which have affected trans* people should be implemented without delay.
While this interim solution offers a solution to the family law issues, other legal fields should also be examined since they likely use the terms of father, mother, man, woman, or other gender related terms expecting certain reproductive capability.
Both long-term and short-term measures should be taken to recognize diverse family relationships, and it will be worthwhile to share the know- how internationally.