Japan's top court says government restrictions on transgender employee's use of restrooms illegal

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A plaintiff who wishes not to show the face speaks during a news conference at Tokyo District Court Tuesday, July 11, 2023, in Tokyo. Japans Supreme Court ruled Tuesday that restrictions imposed by a government ministry on a transgender female employee's use of restrooms at her workplace are illegal, in a landmark decision that could help promote LGBTQ+ rights in a country that still lacks anti-discrimination law for sexual minorities. (AP Photo/Eugene Hoshiko)

TOKYO – Japan’s Supreme Court ruled Tuesday that restrictions imposed by a government ministry on a transgender female employee's use of restrooms at her workplace are illegal, in a landmark decision that could promote the rights of LGBTQ+ people in a country without legal protections for them.

It was the court's first ruling on the working environment for LGBTQ+ individuals.

The judges said in a unanimous ruling that the Economy and Trade Ministry's restrictions, which forced the employee to use either a nearby men's room or women's restrooms at least two floors away, were “extremely inappropriate." It said the approval of the restrictions by the National Personnel Authority, which is supposed to serve the interests of government employees, was “illegal” and an “abuse of power.”

The victory by the plaintiff, identified only as a transgender female ministry official in her 50s who sued the government over toilet access, was good news for the LGBTQ+ community in Japan, the only member of the Group of Seven industrialized nations where same-sex marriage is not legal.

“All people should have the right to live their lives in society based on their own sexual identities,” the plaintiff said after the ruling. “The significance of that should not be reduced to the usage of toilets or public baths.”

The ministry had imposed the two-floor bathroom restriction to limit the chances that the plaintiff's coworkers might use the same restroom and be embarrassed. The ruling said the ministry was excessively considerate of other employees, while “unjustly neglecting the plaintiff's inconvenience” even though there had been no trouble or complaint.

“Even if awareness is lacking among the public, the administrative branch must promote understanding and prohibit discrimination,” said the plaintiff's lawyer, Toshimasa Yamashita. “The government now must deal with the workplace environment more appropriately to protect the rights of minorities.”

The decision comes at a time of increased awareness and support for the rights of LGBTQ+ people. Activists have increased their efforts to achieve an anti-discrimination law since a former aide to Prime Minister Fumio Kishida said in February that he wouldn’t want to live next to LGBTQ+ people and that citizens would flee Japan if same-sex marriage were allowed.

But opposition to equal rights remains strong within Kishida's governing Liberal Democratic Party, known for its conservative values. In June, parliament passed a contentious law to promote awareness of sexual minorities without providing legal rights.

Chief Cabinet Secretary Hirokazu Matsuno said the government will need to carefully examine the ruling before responding to it. “We will firmly work to achieve a society where diversity is respected, and everyone, including those who are members of sexual minorities and those in the majority, value each other’s human rights and dignity and enjoy a vibrant life," he said.

Transgender people in Japan must undergo surgery to remove their reproductive organs in order to have their gender changed on official documents, a requirement that human rights groups call inhumane.

Kishida insists that public views vary on same-sex marriage, and that its legal recognition would have a broad impact on society and therefore must be discussed carefully.

A court in Fukuoka in southern Japan ruled last month that the lack of legal protections for LGTBQ+ people appears to be unconstitutional. It was the last of five court cases brought by 14 same-sex couples in 2019 that accused the government of violating their equality. Four of the courts ruled that current government policy is unconstitutional or nearly so, while a fifth said a ban on same-sex marriage was constitutional.