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Hi Blog. My blog post from yesterday has become a full-blown column at the Shingetsu News Agency. Have a read, and lament for Japan’s future if horrible legal precedents like this are allowed to stand. Debito Arudou, Ph.D.
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Visible Minorities: Judges Strip Equal Protection from Naturalized Citizens
Shingetsu News Agency, April 24, 2023 by DEBITO ARUDOU in COLUMN
https://shingetsunewsagency.com/2023/04/24/visible-minorities-judges-strip-equal-protection-from-naturalized-citizens/
The website archiving and substantiating all of the claims below is at
https://www.debito.org/?p=17240
SNA (Tokyo) — It’s the next stage of evolution in Japan’s variant of racial discrimination: a naturalized Japanese citizen was last year denied membership at a golf course—explicitly for being a former foreigner. He sued. This month a district court in Mie Prefecture ruled that this was not an illegal act of discrimination.
You read that right: not illegal. Follow me down this rabbit hole.
Aigi Country Club in Kani city, Gifu Prefecture, refused a former Zainichi Korean with Japanese citizenship. Their justification, according to the Asahi Shinbun, was that “our club has a quota for foreign nationals and former foreign nationals who have become naturalized Japanese and restricts new memberships. We currently have no vacancies in that quota.”
In court, Aigi Country Club duplicitously denied outright racism by claiming that they refused him for more reasons than foreign roots. It didn’t matter. The judges acknowledged that the plaintiff was refused for being foreign and they still ruled against him. They accepted that this was an instance of discrimination, but it wasn’t enough discrimination.
The judges ruled that a golfing club by design is a “closed and private organization with strong personal ties among its members” and that Article 21 of the Constitution guarantees “freedom of association.” In their reading, private groups are free to decide their membership criteria and, at any rate, playing golf is “not indispensable for social life.”
In sum, it wasn’t an instance of discrimination “beyond socially acceptable limits.”
Really?
Exclusionism is rampant at Japan’s golf courses. Last May the Asahi Shinbun provided an excellent overview of how Japan’s country clubs routinely refuse not only membership but also entry to foreign golfers. Some have even refused women. According to interviews, they have “nationality clauses” (i.e. Japanese Only rules) because “the atmosphere slightly changes when there are foreigners around.”
To them, these are just their rules, established long ago. In its case, the Aigi Country Club started in 1964. They won’t change without outside pressure, such as when the International Olympic Committee forced changes in a few Japanese clubs before they were permitted to host international competitions. Without such international scrutiny, they are content to preserve their discrimination in amber.
This Aigi ruling clearly empowers golf bigots to stay the course.
Legal Logic of the Ruling
There are two elements of the logic behind the ruling that deserve to be highlighted.
First is the “beyond socially acceptable limits” reasoning, which has been circulating for generations within Japan’s jurisprudence. It holds that some discrimination is inevitable (for example, separating bathrooms by gender). So as long as institutions or individuals don’t go beyond the “socially acceptable level” of discrimination, there is no legal sanction.
A problem with this approach is that “social acceptance” is determined entirely by the subjective impressions of individual judges. There is no hard data or social science involved. It’s all in the eyes of the judges.
The United Nations has repeatedly criticized Japan for this kind of reasoning (especially its legal corollary of “rational discrimination”).
In this case, even prior Japanese court precedent disagrees. In a similar golf club suit brought in 1995 by a Zainichi Korean plaintiff, the Tokyo District Court ruled that a denial of membership on the grounds of nationality was unconstitutional under Article 14—all people are equal under the law. The Tokyo court also previously dismissed some other bits of the Aigi decision—ruling that golf is a leisure activity and thus a necessary place to socialize. It also noted that, since golf memberships can be purchased on the market, they aren’t really all that exclusive.
Unfortunately, a separate lawsuit in 2001 by another Zainichi Korean against a golf course ruled against him, affirming the primacy of private corporations to choose their members, even if that includes excluding foreigners.
This brings us to the second big issue: the plaintiff in the Aigi case was not a foreigner.
What’s even the point of naturalizing and taking Japanese nationality if the legal status conveyed offers no equal protections?
We’ve already seen this occur within the Japan Sumo Association, which also limits the number of foreign wrestlers in sumo stables. Even if they become Japanese citizens, they are still counted as “foreigners.” Nobody has yet challenged this practice as unconstitutional.
The plaintiff in the Aigi Country Club Case effectively did challenge it, and yet the Aigi judges accepted the argument that Japanese citizens with foreign roots are not equally protected under the law. They will forever remain “Japanese” with an asterisk.
Open Season on Foreign Roots
If the Mie ruling stands, there will be nothing preventing–at least at the formal legal level–almost any private enterprise from putting up a “Members Only” sign and enforcing “nationality clauses.” Many institutions could conceivably argue for keeping memberships exclusive in order to “preserve the atmosphere” at their venues.
It’s not even unprecedented. During the 2002 World Cup, coordinated “Members Only” signs went up on restaurants and bars throughout Sapporo’s party district; other “Members Only” places like public bathhouses can be found on the Debito.org Rogues’ Gallery of “Japanese Only” Exclusionary Establishments. What’s next? Sports clubs? Hotels? Hospitals? Schools? In fact, all of these kinds of institutions have been found to possess formal and informal “Japanese Only” rules.
Thanks to the Aigi Country Club case, bigots are being offered stronger legal grounds to maintain and extend discrimination.
Naturally, this means that not only first generation immigrants, but also those born in Japan may discover that they are not equal under the law.
With all of Japan’s international marriages, there are hundreds of thousands of Japanese children with a foreign parent or relative. The ruling of Aigi Country Club case means that if some children “look foreign” and due to their presence the “atmosphere slightly changes,” then they can be excluded by organizations because it is “socially acceptable” to do so.
Of course, it is remarkably easy in many cases to spot any mudblood whose kin or relative has a katakana or odd kanji name. Through this ruling, children can be regarded as biologically radioactive and refusable. Citizenship will not protect them.
The Signposts Along the Way
Finally, let’s put things in a larger context. This decision is actually part of a broader trend eroding all civil protections for “foreigners” (however defined) within the Japanese judiciary.
Consider this arc of precedents:
1) The Ana Bortz case of 1998-1999 found that foreigners in Japan were protected by the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) against being turned away by private enterprises open to the public (in this case a jewelry store). The court awarded Bortz ¥2 million.
2) The Otaru Hot Springs case of 1993-2005 found that two foreigners and one naturalized Japanese citizen (yours truly) were not allowed to be turned away from a private enterprise (in this case a public bathhouse). The courts eventually whittled the award down to ¥1 million yen each. However, the courts undermined the Bortz Case by ruling that, a) the CERD offered no actual protection against racial discrimination—it was merely a guideline without the force of law; and, b) racial discrimination did happen, but that was not necessarily illegal. Discrimination only becomes illegal when it goes “beyond socially acceptable limits.” Sound familiar? To cap things off, the Supreme Court also summarily dismissed the case as involving no constitutional protections—not even Article 14, which also explicitly forbids racial discrimination.
3) The Steve McGowan case of 2004-2006 undermined the Bortz and Otaru precedents further, finding no protection for his denial by a private enterprise (an eyeglass store). Instead, the ruling found that any discrimination that occurred was essentially due to a misunderstanding. McGowan, as a non-native speaker, allegedly didn’t understand enough Japanese to portray his case correctly. This ruling was handed down in spite of the fact that the defendant was caught on tape explicitly saying that he refused McGowan because he “hates black people.” The initial ruling was overturned on appeal, but McGowan’s court award was also whittled down to only ¥350,000, insufficient even to cover his legal fees.
4) The Aigi County Club case potentially drops rights down to near zero. It finds that: a) there are no inherent protections for foreigners; b) even if they have Japanese citizenship; c) and even if everyone admits that the discrimination was nationality or ethnicity-based. It’s not a legal problem to discriminate because golf clubs are designed to be exclusive, by whatever standards they choose to employ. This is “socially acceptable” and thus legally permissible.
I hope I’m not the first one telling you this, but Japan has no national law against racial discrimination, despite treaty promises back in 1995 to pass one “without delay” when it ratified the CERD.
At a UN hearing in 2000, the Ministry of Foreign Affairs officially claimed that “the Constitution of Japan stipulates not only guarantee of being equal as Japanese nationals under the law but also guarantee of equality of all rights as Japanese nationals. Therefore, there is no discrimination at all for civil, political, economic, and cultural rights under the legal system.”
The Aigi County Club case demonstrates openly that this was a lie.
The case is on appeal. I hope the plaintiff prevails.
(UPDATE: He does. Read the comments to this blog entry.)
ENDS
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The SNA article is at
https://shingetsunewsagency.com/2023/04/24/visible-minorities-judges-strip-equal-protection-from-naturalized-citizens/
The website archiving and substantiating all of the claims above is at
https://www.debito.org/?p=17240
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21 comments on “My SNA Visible Minorities 45: “Judges Strip Equal Protection from Naturalized Citizens”, on the unjust Aigi Country Club decision (Apr 24, 2023) (full text)”
Dr. Debito this was one of your best SNA articles yet.
“Beyond socially acceptable limits” holds that some discrimination is inevitable (for example, separating bathrooms by gender).
Funny you mentioned that as an example — on June 16th, the third petty bench of the Supreme Court will hear oral arguments over the economy ministry’s refusal to allow a transgender employee to use the women’s bathroom on her floor.
Assuming that the Supreme Court rules in favor of the plaintiff, a legal precedent would be set whereby the inevitability of ‘some discrimination’ would in fact no longer be the case thereby invalidating the logic of “beyond socially acceptable limits”, correct?
— Probably not. But it’s up the judge’s “discretion”, and that means appeals up the ladder over years if that particular judge’s version of discretion doesn’t agree with that precedent. Judges in Japan are weird, entitled, self-important people.
Update: the plaintiff won, however the ruling does not pertain to the use of public restrooms.
Japan top court rules against restroom use limit for trans gov’t worker
Supreme Court’s transgender ruling seen as a step forward
I said it to Shibuya Immigration when they proudly said to me that I could apply for PR, “No thanks, no point. I intend to leave one day.”
This is far, far worse. This guy jumped through all the hoops. What’s more, he is Asian so presumably can pass for a Japanese which “they” seem to prefer- he could and probably did make a strong effort to assimilate. He was probably born here. He had to give up his Korean heritage, and lets not forget Korean laborers were brought here originally- not by choice.
And it is STILL not enough. I would say this dooms Japan’s demographics ultimately. Who wants to become a second or third class citizen at great personal cost?
This actually is bad for Japan’s security: if the feeling grows in NJ business execs, consular staff etc that Japan is inherently racist and the game loaded against them, why play? They start to “Japan pass” and that undermines feelings of wanting to bother with Japan’s legitimate security concerns, and certainly not investing etc. Japan’s treatment of NJ’s starts not to look all that different from China’s.
Sounds far-fetched? Well, consider how all these issues of Zainichi citizens of Korean background have hindered South Korea- Japan security arrangements. There is some doubt that if North Korea attacked Japan, South Korea would actually do much to come to their aid (unless they themselves were attacked by the North). Or any such aid would be lacklustre, as Korea is another nation where nationality and blood are intertwined. Neither Korea nor Japan have got over their race issues.
Speaking of NJ business execs, here’s another reason for them to ‘Japan pass’:
Japan enacts law for GPS trackers to prevent int’l bail jumping
Japan passes bill to monitor suspects on bail with GPS devices
From the article:
A corporate executive would be a “feared suspect”? Not just a suspect huh?
This is absolutely outrageous and disgusting… sigh. I can’t imagine how the guy feels with this joke of “Justice”
We knew this was the result.
I personally have never believed nor trusted Japan’s “naturalization” system, because it seems everyone who naturalizes is still not considered Japanese, ever.
I feel like the Japanese government and judiciary system have taken advantage of the chaos since Trumpy and now the Ukraine and are breaking all civil rights and human rights codes.
### Update ###
Nagoya High Court has ruled that refusing membership to a golf club because a person was not born with Japanese nationality constitutes racial discrimination!:
Court backs man refused golf club membership over nationality issue / 元外国籍理由に入会拒否、高裁「人種差別」 ゴルフクラブに賠償命令 (Japanese language paywall version)
Additional reference: ゴルフクラブの元外国籍入会拒否は「人種差別」 名古屋高裁判決
Wow, this sure is surprising. Debito can correct me if I’m wrong (it’s been a while since I’ve read “Japanese Only”), but I think this is only the second time in history a judge has recognized the ICERD. The first one was the Ana Bortz case in 1999 and this is the second one. If I remember correctly, at the Otaru Onsen lawsuit, the judges claimed that each city has the right to decide on its own if they want to enforce the ICERD by creating an ordinance. Which doesn’t make sense since the Japanese government signed the ICERD, so it should cover all of Japan.
What’s also interesting is this “The high court said the propriety of the club’s decision should be considered from the perspective of whether Article 14 of the Constitution, which stipulates “equality under the law,”
So the court recognizes that racial discrimination is unconstitutional, but in Debito’s case the Supreme Court refused to rule on the case, because in their opinion, it didn’t have anything to do with the constitution.
What does worry me is this expression though “illegal beyond socially acceptable limits”. They used that in Debito’s case too and it makes no sense. Racial discrimination should always be illegal, because there’s no socially acceptable limits to it, never.
Therefore I have to wonder, if this guy wasn’t a Japanese citizen and kept his Korean citizenship, would the court rule the same? Probably not since there are plenty of cases where judges decided that the constitution only covers Japanese citizens, since the term “kokumin” is used.
Don’t get me wrong, it’s a great ruling and it’s great that it came so quickly instead of taking years like Debito’s case. But, I always have to wonder if a “regular foreigner” would’ve gotten the same ruling.
— You are correct that this and the Bortz Case are the only ones that have ruled the ICERD is germane and has the force of law. Now why? It’s completely dependent on the judge(s) in the case. The Plaintiff simply got lucky in the High Court. And would it matter if a “regular foreigner” was the Plaintiff? Again, it depends on the judge(s), it’s case by case, there is discretion everywhere, etc. Stare Decisis is not a big thing in Japanese jurisprudence.
Thanks for the reply Debito. The reason I ask myself if a “regular foreigner” would get the same ruling is because I know that several judges and politicians have argued that the constitution only applies to Japanese citizens. We talked about that a few times on debito.org. I also remember you writing that during the Otaru Onsen case people kept calling your landline and made threats to you and your family. If I remember correctly, you wrote that the cops did nothing, but they visited you a few days after you naturalized and said something like “You’re a Japanese citizen now, which means we can help you”.
So yeah, knowing all that, I feel like it’s even harder for “regular foreigners” to achieve the same ruling.
But I think we can all agree that having to launch a civil lawsuit is stupid anyway. Racial discrimination should be a criminal, not civil matter. In any other developed countries clubs, bars and restaurants with such a policy would lose their license and the owner would pay a hefty fine or even go to jail.
But small steps I guess. It’s a good thing the plaintiff filed an appeal and won in this case. I honestly didn’t expect that at all.
— I was pleasantly surprised too.
@Niklas, if you’re interested, here’s a link to additional information on stare decisis in Japan.
@Niklas “Racial discrimination should always be illegal, because there’s no socially acceptable limits to it, never”
Well, that’s not exactly true. We are humans and we have biases based on … who knows what?!. Balancing the public interest in having a society where racial discrimination in employment, housing, civil rights, and education etc. is illegal, with a society that will not intrude on your right to not date members of a certain race etc., is a problematic area. Inviting someone into your club is a little bit like dating in some ways but in other ways not. When it comes to rental properties and not renting to foreigners it seems Japanese society leans heavier towards the dating model of “I just don’t want to deal with those people”. It is socially acceptable racism in Japan. We have socially acceptable racism in our own western countries but maybe not as much.
— I think it’s facile and misleading to compare it with dating at all.
Wow, didn‘t expect to see such a bad opinion on Debito.org, especially not from you. You literally sound like the average reddit apologist trying to excuse Japanese racism. Refusing to rent to someone due to race, or excluding them from a business that‘s open to the public is nothing like dating, which is a completely private matter. I agree with Debito, your comment is missing my point completely.
Every developed country (except for Japan) has laws against racial discrimination like the one we‘re talking about here and when Japanese citizens go to western countries, they are protected by the laws of these countries from such discrimination. I just want these same laws to apply to NJ in Japan.
If you‘re a landlord or bar/shop/restaurant owner who doesn‘t want to deal with foreigners, you should lose your license at least. The point in going into the hospitality industry is to be hospitable to everyone, regardless of „race“ or nationality. Seriously, this is what Debito has been advocating for decades and it‘s one of the main reasons this website exists. I‘m very confused by your comment.
And yes, refusing to date someone due to „race“ or nationality may not be illegal (and I agree that it shouldn‘t be illegal), but it‘s still socially not acceptable and morally wrong in my opinion. Being racist is always wrong, even when it‘s not illegal. That being said, this whole debate around „dating“ has nothing to do with what I said.
I was just trying to make the point that refusing entry to someone based on „race“ or nationality should always be illegal as specified in the ICERD. Debito wrote a blog post about it once, maybe he can link it here, but there‘s no such thing as „beyond socially acceptable limits“ in the ICERD. The ICERD cleary states: „ any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of PUBLIC LIFE.
So yeah, dating has nothing to do with the ICERD. And if Japan doesn‘t want to enforce the ICERD, they shouldn‘t have signed it. It‘s as simple as that.
Thanks for the comments from both of you. I think you both fixed on a point that I wasn’t really trying to make. My main point was that housing rental discrimination by race is socially acceptable racism in Japan. The court seemed to acknowledge reality. I didn’t say it was a great thing. Sorry if I didn’t make my point clear.
Understood. And I agree, but the point of a court is to decided if something is either legal or illegal and to decide on an appropriate penalty. A court shouldn’t decide on what’s socially acceptable and what’s not, because everyone has a different opinion on what “socially acceptable” entails. It’s a phrase that’s literally meaningless in jurisprudence and I don’t understand why Japanese courts like to use it so much. For example, I’ve never seen a German court use such a phrase, whether we’re talking about a case that involves racial discrimination or anything else. The UN actually criticized Japan for this very phrase, Debito wrote about, but I can’t seem to find it anymore.
So yeah, while I agree that racial discrimination is socially acceptable in Japan, that shouldn’t be the topic in a courtroom.
— For the UN’s criticisms of Japan, start here: https://www.debito.org/?p=6145
This “because everyone has a different opinion on what “socially acceptable”. Not in Japan.
Well, they may do, but there is the “official” Ware Ware Nihonjinron do it This Way Social Rule, isn’t there. Which at times felt like it was being treated like a law, just without potential incarceration but instead ostricisation. Or the veiled threat of reporting Bad Gaijin to the Snitch Site for “Fu’an” or some other non crime like making a Japanese person feel uncomfortable.
These social “rules” based on whims of little J- Hitlers or the WareWare social rules mob, start to have similar ramifications like “losing a visa”. I mentioned the disgruntled employee trying to report his newly returned NJ colleague to police for having a “processing” visa.
Similarly, a small school owner who reports any teacher he does not like to immigration, etc etc. There is a wideheld myth that any ordinary Japanese person holds sway over any foreigner and they have the power to do this.- tangentially I would say the Snitch sites are the result of this wideheld belief which actually predated the sites.
And, this- “And if Japan doesn‘t want to enforce the ICERD, they shouldn‘t have signed it. It‘s as simple as that.”
I agree with you but you know that Govt of Japan just signed things with little seriousness of intent, for appearances. It goes along to get along. Tatemae internationally, honne at home. This might be slightly changing as various policy mistakes of old come home to roost, Abe’s demise being part of the same Karmic comeback.
I would also argue its part of the whole postwar, postmodern meaninglessness of Japanese Society, full of “Imi ga nai” signs and symbols that are largely ignored by people, especially corporations- who regard many labor laws passed by Govt as only applying to those in the public and not the private sector.
When huge Corps like Uniqlo are on the extensive Black Company list, one knows there is a huge issue of laws just being ignored as “Just a law/guideline/rule/sign”.
HIstorically I find it striking that the Kwantung Army could just ignore its own Govt directives for years and proceed to wage a genocidal war in China. Presumably government policy “did not apply to them”.
Thus, it is hardly surprising that GofJ would not bother to implement properly at home international treaties it has signed. Or they implement it “as is appropriate in their country”.
This dovetails with that old bad chestnut, “We Japanese are not accustomed to written contracts yada yada” and/or can change the terms later. Thus Abe’s wish for a vague, wishywashy “Japanese” constitution which is open to interpretation vs. that nasty, rude clear as day western one they are lumbered with.
It all comes down to verbal agreements and whether or not one party can “gaman” the abuse or twisting of said agreement and for how long, until they do a Johatsu style disappearing act and the “relationship” just kind of disapates back into the ether of nothingness from whence it came.
The USA needs Japan vs Commies (so their reasoning goes or used to go) and will therefore hopefully not push Japan too hard on things like non implementation of domestic human rights, or e.g. opening up the domestic Japanese insurance market to outside players- which is why all NJs need to pay into that damn Kokumin Kenco Hoken just to get a visa renewal now.
Thus while I agree with your assertion from a prescriptive angle and indeed I dont think Japan should even be offered said treaties to sign in some cases (In my fantasy I would actually just say to them, “Nah GoJ you don’t need to sign coz you say you’re Unique right? Too bad about the benefits you won’t get from not signing though) –
I know the annoying reality is that Japan can’t be relied on obey international treaties especially if they are to be applied within Japan and have a human rights aspect to them. Hague Convention being a more recent test case; so far mixed results AFAIK.
Here’s another update from Asahi Shimbun regarding the Nagoya High Court ruling:
EDITORIAL: Country clubs must not deny membership due to ethnic origin / （社説）ゴルフクラブ入会 出自で拒否は許されぬ
OK, professor Ogawa, what’s your theory behind the GoJ’s double standard?
Discrimination against Afghans? Refugees still struggle in Japan / 元大使館職員のアフガン難民、日本で困窮 ウクライナと支援に差 (Japanese language paywall version)
Whew, that’s a relief — for a minute there, I thought the GoJ had gone and done something reckless…like letting all of the children stay in Japan!
Japan grants special residency to foreign kids: not all qualify / 送還対象の子らに異例の救済 納得できぬ線引き、でも見いだした希望 (Japanese language paywall version)