Photo/Illutration An economy ministry employee who sued the central government over the restriction of her use of the women's bathroom checks documents at a news conference after the Tokyo High Court’s ruling on May 27. (Shunsuke Abe)

A poorly thought-out high court ruling supporting a ministry’s transgender bathroom ban ignores the need to pay more sympathetic attention to challenges confronting sexual minorities.

The Tokyo High Court on May 27 ruled the economy ministry’s policy of banning a transgender female employee from using the women’s bathroom near her office is not illegal, reversing a lower court decision.

The court acknowledged that people have the legally protected right to live in society as the sex that corresponds to their gender identity. However, it nevertheless endorsed the ministry’s order, in place for more than a decade, that she use a women’s bathroom two floors or more away from the room where she works.

In backing the long-running restrictions on her access to a women’s bathroom, the court pointed out that she has not undergone gender reassignment surgery and referred to a lack of a legal initiative to establish new rules to promote access to public restrooms according to gender identity and legal precedent concerning the issue.

The facts cited in the ruling do not offer any solid grounds for the court’s decision.

Gender reassignment surgery is really taxing on the body, a fact that causes many transgender people to avoid the procedure or give up taking the step.

The ruling’s language, which gives the impression that the plaintiff should have received the procedure, could lead to a violation of the freedom from being physically harmed against one’s will.

If a lack of legal precedence justifies failure to change outdated rules, many systems in society will never change.

The court ruling shows no recognition of the need to promote progress in society through determining legal disputes or pride in the responsibility the judiciary should fulfill in this process.

The ruling also defended the ministry’s policy by saying a government organization operates under different circumstances from those for private-sector businesses where the top executives can decide to introduce progressive measures with relative ease.

But this is another example of upside-down logic. Since it is a public organization, it is all the more important for the ministry to show a stronger commitment to human rights and a greater willingness to adopt progressive measures than private-sector entities.

The plaintiff has been receiving feminizing hormone therapy and has a feminine appearance. The ruling said it is necessary to ensure that other female employees do not feel anxiety about their “sexual security.”

But no evidence to indicate such anxiety among employees has been submitted to the court.

The Tokyo District Court, which heard the case first, made a more reality-based, convincing decision. The lower court declared the ministry’s order illegal by pointing out that the possibility of the problem the ministry is concerned about is purely hypothetical.

The ruling also paid attention to changes in Japanese people’s perceptions about transgender people and global trends concerning them.

As it happens, the ruling Liberal Democratic Party recently decided to shelve a bill to promote better public understanding of issues concerning sexual minorities, abandoning its plan to submit it to the current Diet session.

Through talks with opposition parties, the LDP agreed to insert a clause prohibiting “discrimination based on sexual orientation or gender identity” into the bill. But this has provoked a backlash within the conservative wing of the party.

One former Cabinet member made remarks based on misunderstanding and prejudice, saying “there have been absurd cases in which a person with a male body demands access to women’s bathrooms.”

A lack of understanding of the importance of access to public restrooms according to gender identity among the government, the judiciary and certain politicians eloquently underscores the need to establish new gender norms to promote respect for diversity among individuals and a greater social inclusiveness.

--The Asahi Shimbun, June 1

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