The Supreme Court ruling Wednesday that upheld the constitutionality of a law that requires spouses to choose a single surname dealt a heavy blow to advocates who want to see change.
They worry Japan may have missed a chance to join the global trend of allowing married couples to have separate legal surnames.
The ruling also raised the question of whether a better gender balance among the top court’s 15 justices might have resulted in a different outcome. Of the court’s 15 members, only three are women.
“If there was a better gender balance of the judges, it may have led to a different ruling,” said Mari Miura, a political professor at Sophia University.
Shuhei Ninomiya, a professor of family law at Ritsumeikan University, said opinions may have varied among the judges based on their understanding of the pain of changing one’s surname and the problems that stem from it.
In the ruling, all three female justices out of 15 were in favor of the plaintiffs. In their opinions, they cited women who suffered disadvantages and inconveniences from changing their surnames, such as the case of researchers who had already published research papers under their maiden names, and other examples where the building of a career after marriage was made more difficult by the change.
“Women shoulder almost all the burdens — the obstacles and loss of self-confidence — that come from (changing surnames),” one of the opinions said. “It is hardly a system that ensures individual dignity and gender equality.”
According to a government survey, more people tend to oppose separate surnames as they age. The 15-member justices were all in their 60s.
“The fact that more elderly people sympathize with a single surname may have been reflected in the ruling,” said Ninomiya of Ritsumeikan University.
The ruling stated that the disadvantages that come with a change of surname could be mitigated by expanding the use of maiden names in some situations.
According to a survey by the Institute of Labor Administration, a private research group, 64.5 percent of firms that responded allowed the use of maiden names at work in 2013, up from 17.8 percent in 1995.
“I was really excited before the ruling. But now, the debate (over allowing separate surnames) may lose momentum,” said Etsuko Kuzuya, 43, who works in Tokyo’s Toshima Ward.
Kuzuya has used her maiden name at work since she was married, but she has to use her husband’s surname for official documents such as rental contracts, elections and other administrative procedures in her municipality.
“There is no legal backing for common names,” Kuzuya said.
“It seems (the judges) don’t understand the reality.”
According to the Justice Ministry, there are no other countries that ban separate surnames.Lawmakers from the Liberal Democratic Party say the top court’s decision must have been well received by Prime Minister Shinzo Abe.
Predominantly conservative lawmakers’ group Sosei Nippon (Japan’s Rebirth), headed by Abe, is essentially opposed to the change, and says it will work to keep the law unchanged in order to preserve the unity of the family.
One Cabinet minister said Abe was taking a realistic stance to appeal to a wider audience outside his conservative base.
“Abe’s administration is pushing for a greater role in society for women, but upholding laws that force couples to choose a single surname will only hinder achieving the goal,” said Ritsumeikan’s Ninomiya. “Instead of backpedaling the debate, the government should push forward to (change) the legislation.”
On Wednesday, Tomomi Inada, policy chief of the ruling LDP, said the ruling was “reasonable.” Inada also said measures were needed to make it easier to use maiden names at work, adding that the party should consider whether a law revision is necessary.
Meanwhile, Katsuya Okada, who heads the opposition’s Democratic Party of Japan, said the party planned to submit legislation in the regular Diet session to be convened next month that would allow couples to have separate legal surnames.
“Just because the (Supreme Court ruling) said it was constitutional doesn’t mean (lawmakers) don’t have to do anything,” Okada said.
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