SNA (Tokyo) — We were told that the 1985 Equal Employment Opportunity Act (EEOA) marked the “dawn” of a new age for female workers in Japan. No more could employers blithely set up special marry-and-leave retirement systems for their female employees, a practice that had been considered perfectly legal. Several amendments boosted the reach of the law and wording revisions extended protection from gender discrimination and sexual harassment to male workers.
But, in many ways, Japan remains stuck in its old patriarchic ways. Bucking an international trend, Japan still prohibits same-sex marriage and post-nuptial couples must choose one surname, usually the husband’s (unless one partner is a foreign national). And the law retains the word “gender,” leaving unclear what if any protection is extended to LGBTQ workers.
The Osaka District Court handed down a ruling in July 2020 that might get us back on the path to progress. The court ordered Yodogawa Kotsu to pay 180,000 yen to a transwoman taxi driver who was removed from the dispatch schedule because she wore women’s clothing and cosmetics.
The plaintiff was assigned male gender at birth but identifies as a woman and was diagnosed with gender identity disorder. Yodogawa Kotsu hired her as a driver in 2018. She began hormone therapy and began wearing make-up and women’s clothing during her shifts. Some passengers complained to the company about her sexual presentation, so the dispatching company told her she could not drive unless she stopped dressing as a woman.
The verdict quotes her boss imploring her to stop using Kansai dialect.
“Midashinami-de kessho-wa nai-yan. Dansei yanen-kara… Daibu koi-wa… Seido issei shogai-wa issho naoran-no yaro.” (You can’t go presenting yourself with make-up and all. Cuz, you’re a guy… It’s so thick… Don’t you know you ain’t never gonna get over this gender identity disorder? Cuz it’s a disease, right?)
Without fares, her income dropped to zero, driving her into financial hardship. She sued, claiming that removing her from the dispatch roll was illegitimate.
Yodogawa Kotsu cited the dress/appearance regulations in the company’s official work rules to justify the removal:
Regarding appearance, employee must, in principle, always maintain cleanliness and, as a customer service worker, must not cause discomfort or awkwardness to riders. Employee must wear officially designated work uniform, name tag, and comply with dress code regulations.
“The driver and passenger are confined in a small space inside the taxi for a period of time, so the driver must not cause the rider discomfort,” the dispatcher asserted in court briefs. “The company had instructed drivers to comply with the dress code and to refrain from an appearance that causes rider discomfort. Prohibiting male drivers from wearing cosmetics is sufficiently reasonable given that it’s inevitable that many riders will feel discomfort or awkwardness if a male driver wears it.”
The court rejected the argument, accepting that the driver should be permitted to wear make-up just as female employees do. The work rules naturally do not prohibit women drivers from wearing cosmetics. “The prevailing notion existing in society is that mainly women wear cosmetics,” the court determined.
“Thus, as a general principle, we cannot deny outright the need and rationale of prohibiting only men from wearing make-up in a service industry in order to prevent customer discomfort. But the driver was diagnosed with gender identity disorder and, although biologically a man, she self-identifies as a woman. Clinical features of her gender identity disorder manifest in her presenting her appearance in a manner as close as possible to a woman, as per her self-identification; and we should say that the desire to lead a social life as a woman is natural and ordinary.”
The court went further. “Not all passengers are intolerant of people with gender identity disorder. Moreover, it may not be so likely that a stance respecting gender diversity will lead to numerous complaints, decline in riders, economic loss or other damage to the company.”
This is a good first step for LGBTQ rights. I feel excitement that even courts are gaining awareness and respect towards workers that they should be able to work in accordance with their gender identity and present an appearance they consider their own. A decade ago, she might well have lost. Let’s look for more rulings that transcend gender binarism in the coming years.
But it’s not enough. Was her doctor’s diagnosis of gender identity disorder necessary to convince the court? Japanese society continues to label this a disorder, a practice ceased in the US after the American Psychiatric Association relabeled it in its the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Transphobic perceptions persist in society at large, leading to glacial progress on the part of the courts.
This article was written by Hifumi Okunuki, and originally published by the Shingetsu News Agency (SNA).