High Court Decisions Augur Long Road to Equality


On December 16 last year, the Supreme Court delivered a ruling on a closely watched case regarding the right of spouses to maintain separate surnames after marriage. The plaintiffs in the case challenged the constitutionality of article 750 of the Civil Code, which requires one of the spouses to adopt the surname of the other. They held that the provision violated the couple’s rights, and also that it violated the constitutional guarantee of equality under the law by discriminating against women, who are the ones obliged to change their surnames in 96% of all marriages.

The Supreme Court disagreed, upholding the constitutionality of the provision.

To be sure, the court’s ruling does not imply that a revision of the law to allow couples freedom to choose would be unconstitutional. In fact, it urged the Diet to deliberate legislation allowing separate surnames. Even so, the most prevalent reaction to the decision in the media and on the Internet was one of profound disappointment, and rightly so. The ruling flies in the face of a recommendation issued back in 1996, a full 20 years ago, by an advisory body to the Minister of Justice. It ignores recommendations by the United Nations Committee on the Elimination of Discrimination Against Women on two separate occasions, in 2003 and 2009. And it runs counter to the emerging climate of opinion in Japan, where recent surveys show that, with the exception of the elderly, the majority of citizens support giving women the option to keep their surnames after marriage.

A Decision by the Male Majority

Of the 15 justices on the Supreme Court of Japan, five dissented from the majority opinion upholding the constitutionality of the same-surname provision. Among these five were all three of the Supreme Court’s female justices. In other words, the 10 justices who ruled the law constitutional were all men. The gender bias informing the decision seems particularly blatant in the view, communicated by the presiding judge, that “the hardship is mitigated by the growing practice of using one’s maiden name for general purposes.”

Asked to comment on the ruling as a prominent leader of the business community, Keidanren (Japan Business Federation) Chair Sakakibara Sadayuki remarked that his daughter and secretary both used their maiden names for general purposes and were not unduly inconvenienced. Reading this comment, I was tempted to retort on their behalf, “What would you know about it?” Whether or not they had the courage to directly contradict him, surely they have had ample occasion to experience the complications and misunderstandings that arise from using one name professionally and another name for one’s bank accounts, credit cards, and passport.

In effect, the male majority is telling us, “What’s the big deal? Just use your maiden name for general purposes and get over it.” One can only imagine how the female justices took this—particular the one who purportedly used her maiden name professionally when she worked as a high-ranking bureaucrat but was obliged to abandon it in favor of her husband's name when she was appointed to the Supreme Court. Anyone qualified for such a prestigious position would have had a long career, an extensive professional and social network, and many achievements to her name—a name she was obliged to exchange for another upon her appointment. Her dilemma epitomizes the practical and emotional hardships to which women are subjected under the current law.

Easy for Them to Say

But so it goes. Time and again the privileged, who have never suffered from injustice or hardship under the prevailing system, use such dismissive arguments to block the efforts of those who seek reform. Men who have never been and will never be forced to change their surnames, and cannot imagine the problems it causes others (including wives and daughter who submit docilely to the inequity of the status quo), are the ones opposing women’s freedom to keep their maiden names. My gut reaction to this kind of paternalism is “Mind your own business and let women speak for themselves.”

In another decision delivered the same day, the court ruled on the constitutionality of article 733 of the Civil Code, which prohibits women (but not men) from remarrying within six months of a divorce. This provision has given rise to countless unfortunate situations. For example, after separating from an abusive husband, a woman may have to wait an inordinate amount of time before the divorce comes through—and then be required to wait another six months to remarry. Under the outdated article 772, a child born during that time is presumed to be the child of the ex-husband and thus added to his family register. To avoid such a situation, mothers and partners have refrained from registering births, leaving children in legal limbo without a family registry. No doubt it is hard for the majority of people, who face no such complications in their family life, to empathize with the hardships of parents and children who find themselves in such circumstances.

The Supreme Court ruled that there was no rational basis for the six-month duration of the prohibition, and in February this year, the Ministry of Justice announced that it was preparing a draft proposal to amend the law so as to allow a divorced woman to remarry at any time, provided she was not pregnant at the time the marriage was dissolved (in which case she must wait 100 days). [On March 8 the cabinet approved the proposal. At the time of publication it was awaiting submission to the Diet. —Ed.]

Perhaps this is a step forward in practical terms, but it ignores the fundamental issue. Why should the state be in the business of telling legally competent women when and under what circumstances they may remarry? The ostensible purpose of the rule is to make it easier to assign paternity, but nowadays this is easily done. If a man wishes to marry a woman who is pregnant with another man's child, and she feels the same, it is no one’s business but their own. This is just another example of paternalistic meddling.

This conservatism on social issues, particularly those involving gender, is glaringly evident in Japan’s backward views on the rights of sexual minorities. While a few municipalities have moved to acknowledge “same-sex partnerships,” this status does not afford the same legal rights as marriage, and there is no sign that legalization of same-sex marriage is anywhere on Japan’s horizon—global trends notwithstanding. Homosexual partners who have been together for decades enjoy none of the rights with respect to their loved ones that married couples in Japan take for granted (such as inheritance and input in medical decisions). Yet the majority dismisses the claims of the minority on the grounds that it is “only natural” to restrict the institution of marriage to heterosexual relationships.

Defending the Status Quo

No one is trying to force women to keep their maiden names. No one is trying to interfere with anyone’s efforts to establish paternity, let alone the right of men and women to marry as they always have. Why, then, should the powers that be block the attempts of the disadvantaged minority to secure equal rights by belittling their hardship or dismissing their vision of equality as unnatural? And why does society as a whole go along with such thinking? This I find mystifying. The rights of the majority do not suffer when they are extended to people of different genders, backgrounds, or orientations.

Then again, perhaps, deep down, members of the majority fear the impact that minority rights could have on their static assumptions about Japanese society and their own established place within it. And perhaps those fears have some validity.

The argument against allowing women to keep their maiden names boils down to an affirmation of “the way things are” in a patriarchal society. The man is regarded as the main breadwinner and the head of the household, and it is only natural that the rest of the family take his name, even if it causes some inconvenience for the woman. Women may grumble, but they submit. But what would happen if they were free to keep their own names? Perhaps the entire system would collapse, and women and children would no longer be buried in the father’s family plot, and . . . Such unspoken fears of the social ramifications, and the impulse to stave them off as long as possible, are at the heart of the resistance to a change in the law. So determined are some to defend the status quo that they resort to the bald-faced lie (or perhaps, in charity, we should call it an ignorant claim) that the rule requiring married couples to adopt the same name is a hallowed Japanese “tradition,” when in fact it dates back only to the promulgation of the Meiji Civil Code in 1898.

Now, I am not ascribing base, self-serving motives to everyone who opposes same-sex marriage or the right of a woman to keep her maiden name. But I do believe that the reluctance of the majority to acknowledge the existence of minorities and their rights generally stems from a bigoted reaction against anything that challenges one’s unexamined assumptions about the order of things.

This is a particular problem in Japanese society, owing to its superficial homogeneity. Although Japan certainly has its ethnic minorities, most notably the Ainu and people of Ryūkyūan and Korean descent, they blend in fairly easily, physically and culturally. As a result, many Japanese grow up assuming that everyone is basically the same, and they find it difficult to deal with those who are different. It is particularly disconcerting when people whom one assumed to be the same start asserting their separate identity and demanding equal rights. One can imagine that those who are comfortable in the status quo might feel personally threatened by such developments.

A Chicken-or-Egg Proposition?

Times are changing. Diversity has become a fundamental tenet of socially responsible personnel policies around the world—Japan included. Diversity policies may require significant adjustment on the part of the majority. Companies need to create a barrier-free work environment if they are to hire the disabled, and municipalities need to provide multilingual signage if they intend to welcome foreign nationals into their midst. We should not be surprised, I suppose, if people resist the kind of change that costs time, effort, and money, in addition to challenging their complacent assumptions and threatening their privileged position as members of the majority.

The prospect of a fundamental change in the composition and structure of Japanese society is doubtless especially difficult to contemplate for those who epitomize the majority and its privileged status: healthy middle-aged and older men. This is why minorities and others of lesser status, including women and young people, need to acquire more influence and push actively for reform.

Clearly, we need more women and young people in such decision-making organs as the Supreme Court, the Diet, local assemblies, and boards of directors. Of course, this suggests a chicken-or-egg dilemma, inasmuch as such a change in the composition of decision-making bodies seems to presuppose a fundamental change in Japan’s social systems and attitudes. But such is the arduous path toward reform. We must not be deterred.

(Originally published in Japanese on March 3, 2016. Banner photo: Plaintiffs enter the Supreme Court in Tokyo on December 16, 2015, to hear the court’s ruling on the constitutionality of a law requiring spouses to have the same surname. ©Jiji.)

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