JAPAN'S SUPREME COURT MAKES LANDMARK DECISON ON TRANSGENDER RIGHTS

JAPAN'S SUPREME COURT MAKES LANDMARK DECISON ON TRANSGENDER RIGHTS

@Jackie San

In a landmark decision, the Supreme Court on Tuesday said it was unlawful to restrict the use of bathrooms by a transgender woman at the economy ministry, overturning a lower court ruling. It is the first top court decision over bathroom usage by sexual minorities.

The ruling — a unanimous decision by the five judges on the bench — marks a significant step forward for the working conditions of transgender people, and could affect how companies and government ministries handle similar cases in the future.

“I’m satisfied with the judges’ positive opinions (on the need to create a diverse society),” said the woman, who asked not to be named due to privacy reasons, after the ruling.

Her lawyer, Toshimasa Yamashita, praised the ruling for criticizing the ministry for not following up on her co-workers’ discomfort and whether it was a legitimate enough reason to continue restricting the plaintiff’s use of bathrooms.

Presiding Judge Yukihiko Imasaki said that the National Personnel Authority’s decision to uphold the ministry’s policy of restricting the plaintiff’s bathroom usage gave “excessive consideration” to her co-workers and as a result “unfairly neglected the plaintiff’s disadvantage.”

“(The government decision) significantly lacks validity,” Imasaki said. “Therefore, it is illegal, since it is beyond their discretion and is an abuse of their power.”

Chief Cabinet Secretary Hirokazu Matsuno said in a news conference that the government will consider what to do, given that its argument has been rejected.

The case concerns a transgender woman in her 50s who works at the economy ministry and is suing the government for being told to use bathrooms two floors above or below her office floor.

The ministry adopted the policy in the belief that there was a smaller chance her female colleagues would feel uncomfortable if she used a bathroom that her immediate co-workers would not be using.

While the Tokyo District Court ruled in favor of the plaintiff in 2019, it was overturned by the Tokyo High Court in 2021.

The plaintiff was diagnosed with gender dysphoria in 1999, after she had joined the economy ministry, and started to live as a woman outside of work from 2008. She told her supervisor that she wanted to work as a woman in 2009 and asked for permission to wear makeup and dress in women’s clothing. She was transferred to another post and started working as a woman from 2010, although she could not use the women’s bathrooms on her floor or the ones immediately above and below.

On official documents, she is registered as male because she has not undergone gender affirmation surgery — a prerequisite in Japan for legally changing one’s gender — due to health issues.

In 2013, she asked the National Personnel Authority to remove the restriction but her request was rejected on the grounds of her female co-workers’ discomfort. She filed the lawsuit in 2015.

The ministry had said it made the decision after several female employees voiced discomfort about sharing a bathroom with her. But Tuesday’s ruling did not recognize that point, saying the ministry simply believed several female co-workers were feeling uncomfortable — one of the contentious aspects in the lawsuit.

When a ministry official dealing with the matter asked whether female coworkers used bathrooms a floor above, one responded that she was using them on a daily basis.

By around March 2010, the woman had been found by doctors to have male sex hormone levels that were significantly lower than average, and as such they believed the chance of her committing sexual violence against other women was low. No instances of sexual violence arose during the time she used women’s bathrooms two floors above and below, the ruling said.

In an additional note, Imasaki expressed his hope that guidelines on bathroom usage by transgender people will be drafted in the future, based on individual cases.

“At this point, (when there is a similar situation) there is no other way but to listen to the opinions and requests of the transgender person and other co-workers … and seek the best resolution,” he said.

As similar cases arise in the future, companies and human resources officials will face challenges on how to deal with them, Imasaki said, adding that he hopes society will come to a consensus on what to do.

For transgender people, which bathroom to use in public places like offices and schools has always been a major issue.

In a 2022 survey Kanazawa University conducted jointly with space divider-maker company and housing equipment manufacturer Lixil, about 42% of transgender respondents said they were not using bathrooms that matched their gender identity at their workplace.

The ruling comes a month after the country passed a controversial law aimed at addressing anti-LGBTQ discrimination, which saw lawmakers bicker over subtle language in the bill. In recent months, several courts including the Nagoya and Fukuoka district courts have also ruled against a ban on same-sex marriage, saying that it is unconstitutional or in an “unconstitutional state.”

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@Jackie San