The basics of the Constitution that are surprisingly often misunderstood

Are citizens bound to observe the Constitution?

I had a class at a university. When I asked, “What image do you have of the Constitution?” in the first lesson, a student who wanted to be a teacher gave me this report.

“We need to follow the Constitution once we go out into the world. Following school rules is practice for this. When I become a teacher, I would like to tell that to my students.”

I could sense the student’s passion for education. However, this is actually wrong from my point of view as a constitutional scholar.

First of all, it is not right that “Citizens must observe the Constitution.” If you think about the Magna Carta in England, you will see that a constitution is an agreement between a nation and its citizens, where it is the nation that must observe the constitution.

A constitution defines what a nation must and must not do, which limits its state power and protects its citizens. This is the core of the concept of constitutional law studies.

Nevertheless, it is also true that there are many cases where widespread, instinctive understanding differs from academic correctness.

For example, the Liberal Democratic Party’s Draft of Constitutional Revision, which the LDP released in 2012, had a new provision, saying “All of the people shall respect the Constitution” (Article 102).

At that time, the LDP was an opposition party, and the draft had some rather extreme content, including its conservative direction. However, even if this was in line with people’s instinctive understanding, it is extremely troubling because this is an idea that completely overthrows the constitutionalism, where politics is conducted in accordance with the Constitution.

Why do many people accept the idea (which is wrong in the eye of constitutional law studies) that “Citizens must observe the Constitution”? While there are several reasons, I suppose that one of them is that people think, “The Constitution as the supreme law must obviously be followed” because they are taught to follow rules and laws.

Here is another pitfall. Indeed, in most cases, we must comply with rules and laws. At the same time, the Constitution guarantees the freedom and equality of the people. Therefore, as a matter of fact, we do not have to follow rules and laws that limit the freedom and ignore equality.

As some might say, “Won’t I get arrested even if I break a law?” after hearing such an explanation, I will explain this in another context.

Generally, laws are established by a majority vote in the Diet. Consequently, when 99% stand against 1%, the freedom of the 1% of people might be violated. On the other hand, the Constitution protects the 1% people in principle even when 99% stand against 1%. Therefore, constitutional law studies basically take the stance of doubting the validity of rules and laws.

In the structure of a democracy, the majority is likely to obtain benefits, and yet state power also makes mistakes. That is why I would like you to have a perspective of “skepticism toward power” and “a gaze towards minorities.”

Recent Supreme Court decision on LGBT

There is another misunderstanding that “We must not act against public welfare” as a common mistake of people with an instinctive understanding of the Constitution.

The Constitution of Japan indeed has several expressions of “public welfare” such as in “All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs” (Article 13).

However, we must not consider public welfare as a degree such as “a nuisance for others” or “a sense of discomfort.” Although theories vary, the prevailing view of constitutional law studies is that there is freedom in the first place, which could be restricted by public welfare in exceptional circumstances. Constitutional scholars actually consider how to restrict such a restriction when freedom is restricted.

As an example of such a discomfort, there is a Supreme Court decision on a case about the use of a toilet by a transgender employee working for the Ministry of Economy, Trade and Industry (METI). Let us look at the background from the verdict.

Employee A, who is a man on the family register, has been diagnosed with gender identity disorder and has had a social life as a woman. A has not undergone gender reassignment surgery for health reasons.

Employee A informed their supervisor of METI that A suffers from gender identity disorder and asked the responsible person of METI to allow them to wear female clothes at work and to use the ladies’ room. Responding to this, the responsible person in METI held a briefing for their colleagues. When the employees were asked their opinions about A’s use of the ladies’ room, they said, “Some female employees seemed uncomfortable, judging from their attitude.”

Based on the exchange at the briefing, the Ministry did not allow A to use the ladies’ room on the floor where A’s office is located, and told A to use either the men’s room or the ladies’ room two or more floors away. A sought redress from the National Personnel Authority (NPA), and the NPA decided that there was nothing wrong with the restriction of the ladies’ room.

Employee A filed a suit against the national government, claiming that the restriction of the ladies’ room was unjustified. Although the first instance (unlawful) and the second instance (lawful) had different rulings, on July 11, 2023, the Supreme Court delivered the verdict that the decision of the NPA to restrict the use of the ladies’ room was unlawful, and A won the case conclusively.

In the ruling, the opinion of the court (unanimous opinions of all the judges) was delivered to mention that the decision of the NPA gave excessive importance to consideration for other employees in view of the objective and specific situations of A.

The supporting opinion mentioned the balance and adjustment between the restriction on the toilet use and the “senses of discomfort and shame” of female employees.

For instance, Judge Eriko Watanabe pointed out in that opinion that, as it is important, even for essential interests protected by law for individuals to have a social life based on their true gender identity for living a life, it is irrational to impose unfair restrictions owing to intuitive, abstract reasons that female employees “seemed” “uncomfortable” at the briefing.

A hurdle that can restrict people’s fundamental rights is much higher than people think instinctively. It cannot be tolerated unless there is specific, considerable disadvantage even in the case of relations between individuals.

On October 25, 2023, the Supreme Court ruled a case unconstitutional with respect to domestic relations where the constitutionality was questioned regarding the requirement, “person has no reproductive glands or whose reproductive glands have permanently lost function” (removal of testicles or ovaries, etc.) in the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder (Gender Identity Disorder Special Act) for changing the gender status at a family court.

The Supreme Court drew “freedom from bodily harm” from Article 13 of the Constitution and ruled this requirement unconstitutional as an excessive restriction, which “presents an inhumane either-or choice” between accepting the removal of reproductive glands and abandoning the change of the gender status in accordance with gender identity. It was an epoch-making ruling.

Different from 2003, when the Gender Identity Disorder Special Act was enacted, you can choose hormonal therapy, a mastectomy, the removal of reproductive glands, the removal of genitals or the plasty of genitals in the current treatment for gender identity disorders. The situation where laws have not caught up with the development of medical findings is also a reason for this decision of unconstitutionality.

Minority opinions (opposing views) also found another requirement, “person has a body which appears to have parts that resemble the genital organs of those of the opposite gender” unconstitutional. This requirement needs the removal/plasty of genitals or hormonal therapy, and thus it was found unconstitutional as it also “presents an inhumane either-or choice.”

Speedy deliberations in the Diet are expected for future revisions.

Issues with the Act for the Promotion of Understanding of LGBT People

As a constitutional scholar, I would like you to sense something wrong in provisions in the “Act for the Promotion of Understanding of LGBT People” (Act for the Promotion of Public Understanding of Diversity in Sexual Orientation and Gender Identity) adopted and enacted at the Diet in June.

In the process of the deliberations, a provision was added, describing, “In implementing the measures provided for in this Act, attention shall be paid so that all of the people can live with peace of mind regardless of sexual orientation and gender identity,” which was not included in the original bill.

Although, seemingly, it sounds normal, it is highly problematic. Firstly, as sexual minorities are in the minority among “all of the people,” you could take it that, if the majority says that they “cannot live in peace,” the lives of the minority can be limited.

Secondly, this provision can be interpreted to imply that “LGBTs threaten people’s untroubled lives.” In connection with the bill, there were remarks on social media that “a man disguised as a woman” would go into the women’s restroom, but it is the perpetrators who should be punished, not sexual minorities.

The use of the restroom based on gender identity should not be limited out of fear that “there is a chance of being secretly photographed,” either. Secret photographing is wrong irrespective of gender identity.

Anyway, a person’s biological sex, sexual orientation and gender identity cannot easily be changed on their own accord. An important role of the Constitution is to protect such attributes and statuses and to defend the guaranteed rights.

Incidentally, constitutional scholars tend not to study laws whose constitutionality is questionable until the constitutionality is actually challenged in court. Therefore, there is the possibility that constitutional law studies have missed the issues of discrimination and the infringement of freedom in the world, on which we should deeply reflect. In that sense, constitutional law studies must address the issue of LGBTs.

Constitutional law studies may project an image of students being forced to memorize provisions and reading many difficult expressions in the textbooks. Essentially, on the contrary, it is a study to learn how to see things from the perspective of “freedom” and “equality” based on the Constitution.

Probably, anyone can face a situation where 99% stand against 1% in their life. A society where you can live with dignity whether you are in the 99% or the 1% – I would like you to learn the Constitution as a cornerstone that will create such a society.

* The information contained herein is current as of November 2023.
* The contents of articles on Meiji.net are based on the personal ideas and opinions of the author and do not indicate the official opinion of Meiji University.
* I work to achieve SDGs related to the educational and research themes that I am currently engaged in.

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