Photo by Nabi Tang via Stocksy
After the Supreme Court of Japan ruled that married women should not be allowed to legally retain their own last names, we find out why the right to self-determination is more important than ever.
An 80-year-old retired teacher was one of five women who lost a battle in the Japanese Supreme Court to keep their surnames this December. Kyoko Tsukamoto traces her lineage back centuries to the Edo Period, and wanted to legally keep her family name after getting married.
"When I heard the ruling I started crying, and even now it hurts," Tsukamoto told reporters after the hearing. "I can't live as Kyoko Tsukamoto, and now I won't be able to die as Kyoko Tsukamoto."
Traditionally, women in Japan were able to retain their maiden names after marriage. But the situation was reversed in 1898 when the government enacted the Civil Law, forcing women to adopt their husband's surname upon marriage as part of the feudal family system where women and children were under control of the male head of household.
Although the system itself was abolished during the fall of the Meiji era in the wake of World War I, Article 750 retained the legal requirement for partners to register their marriage under the same surname. The revision allows couples to choose whose surname they take, but 96 percent still opt for taking the husband's family name in 21st century Japan.
Blogger Yosuke Yano, one of the remaining 4 percent who adopted his wife's surname upon marriage, admits it is an unusual choice. "I think women are the ones who often end up choosing their husband's surname because that's what we have culturally grown up with," he tells Broadly. "I've always felt uneasy about women having to change their surnames, but there are a shocking number of men who do not know that they can register marriages with their wife's surname. There is this skewed notion that men need to go through complicated processes... in order to do so."
The United Nations Committee on the Elimination of Discrimination against Women has repeatedly argued that Article 750 is discriminatory. Although in 1988 the Tokyo District Court dismissed a case from a female professor to use her maiden name at work, the practice has become widespread since October 2011 when government officials were granted to use their surname of choice.
Yosuke Yano blogged about his decision to take his wife's last name. Photo courtesy of subject
Such developments have led judges to argue this time that the informal adoption of maiden names ease the impact of the surname law. But a female lawyer specialising in gender law tells Broadly that the focus should have been to pass legislation on separate spousal names in order to respect individual rights, as stipulated in Article 13 of the Japanese Constitution.
"It is less about maintaining separate surnames, it's more about preserving your own and the rights that should come with it," Sakura Uchikoshi says. "For example, if a woman gives birth without a legal marriage certificate, she and her partner won't get joint parental authority as the children are technically born out of wedlock. And without subsidy from a spouse, there are all sorts of inconveniences financially."
In Japan, those who advocate the use of separate surnames have a strong reputation for being 'selfish individuals.'
With only a minority make it as career women, many others—especially housewives who quit jobs to support their husband and look after children—are particularly vulnerable under the current law. "Women don't get inheritance unless somebody has provided a will allowing her to do so, and even then, the taxation is different between the genders," says Uchikoshi. "It goes against Article 24 in the constitution that such rights should be equal between the sexes. The country made a bold legislative discretion."
It's these legal headaches combined with cultural expectations that prompted Yano and his partner to get married. Whilst joking that his friends weren't too surprised by his "odd" decision that leaves him having to use his wife's surname on all official documents, he says he would prefer a law that allows couples to have different surnames.
"In Japan, those who advocate the use of separate surnames have a strong reputation for being 'selfish individuals.' Because of assumptions that women play a more supportive role for the men who have a focal point in society, the most effortless way to break away from these views is to adopt different surnames," Yano explains. "If we had stuck to the convention of opting for my surname between us, our children would have identified that 'mom changed hers'. There must be more focus on women's rights and equality between both sexes; we've tried to show them that she's not had to change who she is by continuing to use our own surnames where possible."
So far there's no word on whether the five women will appeal on the ruling. But with only three female judges who took part in the decision—all whom judged the law was unconstitutional—Uchikoshi says that the gender imbalance needs to be improved for a fully informed outcome in the future.
"With the exception of two male judges who agreed with the women, the other ten men disagreed," she says. "Although some good points were made during this case, along with others that previously failed, it shows the need for more women in court and government to take part in planning. It's difficult for restraint perspectives from men who have never experienced discrimination to fully cover the disadvantages that women face from using an alias, and for them to dominate the final call on whether it's unfair."
"It's a shame the verdict stopped short of acknowledging the disadvantages that come with two people who cannot be in matrimony unless one changes their surname. When there are significantly less number of women, we are exposed to the traditionalist values held by old men and are likely to become more old-fashioned than them."
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