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Renho nationality furor exposes Japan’s deeply embedded gender bias

by

Special To The Japan Times

On Sept. 15, Renho was elected president of the Democratic Party, the nation’s leading opposition party. She accomplished this despite the furor in both mainstream and social media about her heritage. Born to a Japanese mother and Taiwanese father, she acquired Japanese citizenship as a teen and has been criticized for supposedly retaining her Taiwanese nationality. Japan’s Nationality Act proscribes dual nationality after the age of 22.

Much of the mean-spirited complaining about Renho has been about her nationalities. Renho probably also attracts criticism because she asserts her different identity by using her given name, rather than becoming another Murata-san (her husband’s surname), confounding those who want Japanese people to not only look the part but have fully “Japanese” identities as well. However, looked at more closely, the real issue at the heart of the recent Renho-bashing is based on discrimination according to gender that existed before she was even born.

In 1978, when Renho (born in 1967) was 11, a mother and child brought suit in the Tokyo District Court seeking a declaratory judgment that the child — born in Japan to a Japanese mother and American father — was Japanese.

Under Japanese law, nationality is transmitted principally through parentage, unlike in countries like the U.S., where birth in national territory is the primary determinant. Children born abroad to an American parent may be eligible for U.S. citizenship if the parent has adequate contacts to the United States.

Unfortunately, at that time, Japan’s Nationality Act only allowed citizenship to be transmitted to children born through fathers (unless certain exceptional circumstances applied). Although passed in 1950, the act was consistent with prewar laws aimed at preventing the mixing of nationalities within a (Japanese) family unit. That such a patently discriminatory law survived almost four decades under a constitution purportedly guaranteeing equal protection generally and gender equality specifically is impressive.

Thus, just as would have been true for Renho, despite being born in Japan to a Japanese parent, the child in this case was not — could not be — Japanese. Both mother and child challenged the Nationality Act on constitutional grounds.

Tokyo District Court perplexes

Some readers might think that even back then, Tokyo was an international city, and that courts located in the national capital would have been cosmopolitan and progressive, particularly on matters such as bicultural families. In fact, the opposite is probably the case, even today. The Japanese judicial career system means that “good” (i.e., pro-establishment) judges are more likely to end up in Tokyo-area courts. The Tokyo High Court in particular is a steppingstone to the capstone of a judicial career: appointment to the Supreme Court, which doesn’t happen to jurists who mess with government policies. (In fact, one of the three judges on the District Court panel in the Nationality Act case ended up on the Supreme Court). So if you want to identify two courts in Japan likely to render pro-government, pro-establishment, unprogressive decisions, the Tokyo district and high courts would be good choices.

The Tokyo District Court issued its decision in 1981. First, it dealt with the mother’s bothersome assertion that the Nationality Act discriminated against her based on gender by declaring that she lacked standing to even bring such a claim. It was the child, not her, who was most affected by the act, so only the child could be the plaintiff. But then the gender of the child was not a determinative factor in eligibility for nationality, therefore there was no gender discrimination! Brilliant, right?

Magnanimously, the court declined to accept the Japanese government’s assertion that the child was not even entitled to challenge the constitutionality of the Nationality Act because only Japanese nationals benefited from the equal-protection guarantee of Article 14 of the Constitution (!!). The decision also kindly includes a helpful list of all the legal impediments the child would suffer from not having Japanese nationality.

The court also concluded that it was in any case rational for the Diet to pass a law in which nationality was transmitted primarily through fathers. Why? Because that’s what other countries did. Specifically, “South Korea and most other Asian nations.” In other words, because other countries discriminated based on gender, it was rational for Japan to do so too, in order to minimize instances in which instances of horrid, horrid horrible dual nationality might arise.

Tokyo High Court confounds

If this high-order legal reasoning leaves you gasping, you may want to put on your Stephen Hawking thinking hat now and concentrate hard, but the Tokyo High Court decision will probably still defy your ability to comprehend — unless you graduated from the University of Tokyo’s law faculty and passed the pointlessly competitive Japanese bar exam.

Ready?

Grossly oversimplified, the high court found that the Nationality Act provision granting citizenship to children of Japanese fathers but not mothers was constitutional because that is all it says. It doesn’t go on to actively declare that children born to a Japanese mother may not obtain Japanese nationality — that would be constitutionality problematic! In fact, the act specifies the special circumstances in which nationality could be obtained through a Japanese mother (such as when the father was unknown).

The ruling goes on to note that the Diet had a choice of a general rule recognizing birth nationality to children of a) Japanese fathers, b) Japanese mothers or c) Japanese mothers or fathers, and it chose option a). It could have chosen b) too, which would also have been constitutional (though the notion that the male-dominated Diet would have done so is laughable, of course).

Finally, the court turned to its own inadequacies: Even if it found the Nationality Act unconstitutional, it would not result in the plaintiff obtaining Japanese nationality. The law would just be void rather than construed the way the plaintiff desired.

As is so often the case with decisions like these, the courts were at pains to show that there was a layer of kindness and sensitivity between their staid, heartless exterior and staid, heartless center. The high court makes all sorts of comforting statements about how the gender preferences expressed in the Nationality Act may no longer be appropriate. The court also addressed the possibility that the child plaintiff might be left stateless (but did not bother to mention the real-life impact the Nationality Act had on stateless children fathered by U.S. military personnel, particularly in Okinawa). Specifically, it noted that the situation was “makoto ni ki no doku na koto de aru” — truly a regrettable thing. “But,” it continues, “tough luck.” (I am paraphrasing.)

The foreign-father window

The more decisions I read like this, the harder it is to avoid concluding that Japanese courts at the time didn’t care about people in general, children in particular, equal protection or possibly even the Constitution — at least not enough to actually do anything beyond stringing really complex sentences together. It would have been interesting to see how the Supreme Court ruled on the matter, but that appeal was rendered moot in 1984 when the Diet amended the Nationality Act to allow Japanese nationality to be obtained from a Japanese mother also.

While this change meant children born to a Japanese parent of either gender after Jan. 1, 1985 (when the amendment took effect) were generally eligible for Japanese nationality, it was not retroactive. Instead, a transitional provision in the amended law created a three-year window during which people born to a Japanese mother on or after Jan. 1, 1965, could acquire Japanese nationality by giving notice to the Ministry of Justice.

Renho reportedly became a Japanese national when she was 17, which would have been during this window, and presumably she benefited from this transitional provision. This would explain why there is some confusion — including in her own reported statements on the matter — as to whether she became Japanese through naturalization. To most people (including most 17-year-old girls) “naturalization” (kika) and “acquiring nationality” (kokuseki no shūtoku) probably seem synonymous. In fact they are quite different, but only in terms of legal process rather than end result. The former involves a tremendous amount of paperwork demonstrating a serious intent to become Japanese, including the active abandonment of other nationalities. The latter involved asserting an entitlement based on birth and, in Renho’s case, doing so under parental guidance while still a minor.

Thus, part of the resentment of Renho’s supposed dual nationality seems to spring from the mistaken belief that she is Japanese due to naturalization, rather than birth to a Japanese parent. Mean-spirited purists would argue the law still requires her to abandon her Taiwanese nationality if she wanted to remain Japanese. However, people of mixed heritage may retain a second nationality unknowingly or even unwillingly. Japan’s Constitution guarantees the right to divest oneself of (Japanese) nationality, but not everywhere is so accommodating. The U.S. now charges what can be a hefty exit fee for decamping, and British nationality was once considered indelible (this being one of the causes of the War of 1812, since despite American independence, British authorities felt entitled to continue press-ganging American colonists and executing them for treason).

A man in Renho’s situation would probably not have been able to shed Taiwanese nationality without first satisfying national-service obligations in that country. Moreover, many Japanese people quietly retain a second passport and there are no penalties for doing so. (A few years ago I had drinks with a Japanese government official who proudly told me about his American-born children and how he expected them to retain both nationalities.)

In the end, it’s all about gender

Which brings us back to gender, the real issue lurking at the core of all the Renho-bashing.

If the nationality of Renho’s parents had been reversed, she would have been Japanese from birth and never would have had to go through the rigmarole of acquiring Japanese nationality later in life. Had she been born to a Japanese father she would have been spared the perception that by “intentionally” acquiring Japanese nationality (while still a minor, it should be remembered) she was somehow guilty of “double-dealing” with her citizenship. Yet the only reason she had to “do” anything at all to become Japanese was because of a law that treated men differently from women in a very basic way, a way that affected the rights of their children to enjoy basic constitutional protections.

In short, decades after her birth, Renho is still being punished for having a Japanese parent who was female rather than male. Renho’s case thus offers a stark illustration of the deeply rooted structural impediments faced by women in Japan even today.

It also demonstrates the Japanese establishment’s general inability to acknowledge the past. The fact that such blatant government-sanctioned discrimination existed until the 1980s simply disappears into the memory hole, a hole that probably exists because the people who ran Japan back then are essentially the same as those who run it today.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Law of the Land returns to its regular slot on the second Monday Community Page of the month in October. Comments: community@japantimes.co.jp