What is Your Name? – Gender Inequality Embedded in the Same-Surname System for Married Couples in Japan

by | May 9, 2024

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About Ayako Hatano

Ayako Hatano is a DPhil candidate in Law at the University of Oxford (Clarendon Scholar). She earned her LL.M. in International Legal Studies from New York University School of Law (Fulbright Scholar) and holds a B.A., M.A., and J.D. from the University of Tokyo. Her research interests lie in the internalisation of international human rights law, law and development, and business and human rights.

Japan is the only country in the world that forbids married couples from using separate surnames. Couples can choose the surname of either spouse at the time of marriage, but in around 95% of cases, it is the wife who changes her surname. In March 2024, six Japanese couples filed a lawsuit against the government, alleging that the laws mandating the use of the same surname for married couples violate constitutional principles of gender equality and individual dignity.

In Japan, under Article 750 of the Civil Code and Article 74 of the Family Register Act, married couples must have the same surname, except in cases where at least one of the spouses is a foreign national. The practice for couples to have the same surname dates back to the 19th century. Under the male-headed, patrilineal family structure, called the ‘ie’ system in Japan, women were expected to join and become part of their husband’s family unit upon marriage, thus changing their surname to their husband’s ‘family name’. The ie system was legally codified in parts of the former Meiji Civil Code in 1898. While the revised Civil Code of 1947 abolished the ie system, vestiges of this system still remain present in the regulation of the surname system and customs surrounding it.

This system and practices have caused various harms and troubles, particularly for women. The administrative process to update a multitude of official documents becomes a bureaucratic nightmare for many newlywed women, incurring unwanted hassle and expense. They also feel they lose an important part of their personal identity when forced to abandon their birth surname. Having to change surnames ruins the professional career of women as their established reputations/credentials under their original names cease to be recognised. Among all, the system is being criticised for reinforcing entrenched gender roles and patriarchal norms in the society.

The Committee on the Elimination of Discrimination Against Women (the CEDAW Committee) has unequivocally denounced Japan’s surname laws as discriminatory and violating the UN Convention on the Elimination of All Forms of Discrimination against Women. The CEDAW Committee has repeatedly recommended to revise Article 750 of the Civil Code over decades.

Despite calls for change from inside and outside the country, the law has not been amended due to political divisions and conservative resistance. While the issue has been consistently discussed and draft bills to amend the Civil Code have been proposed several times since the 1990s, efforts to change the system from the legislature have been stymied by opposition from conservative factions in the ruling party. These factions argued that allowing separate surnames for couples would undermine family unity and cause negative impacts on children, amounting to an assault on ‘traditional values’. Opponents of amending the Civil Code provision advocate for expanding the unofficial use of maiden names as commonly used names for daily purposes. However, individuals who use their maiden name unofficially after marriage encounter challenges at work and in other areas because the unofficial common name does not match their registered IDs, particularly the chip in their passport. Furthermore, some workplaces prohibit the use of pre-marriage surnames, leading to privacy concerns.

The political inaction has prompted numerous couples to bring multiple cases to court, alleging that the same-surname law violates the rights guaranteed under of the Japanese Constitution as well as the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In 2015, the Supreme Court upheld the law as constitutional. The majority of judges ruled that using the same surname was reasonable for the family as ‘a natural and foundational social unit’, and as a well-established practice in the Japanese society, and that there was no inherent gender inequality within the system. The 2021 Supreme Court decision, upholding the 2015 judgement, also deferred to the legislature on the election of the surname system.

It is in this context that twelve plaintiffs, including legal and common-law couples, filed new cases in court on 8 March 2024 (International Women’s Day), arguing that forcing Japanese nationals to choose between marriage or keeping one’s surname violates the constitutional principle of respecting individual rights. One of the plaintiffs needed to quit her job after a mental crisis due to changing her surname. Another of the plaintiffs had married and divorced the same person more than five times due to complications surrounding surname changes. One of the plaintiffs, who is now in a civil marriage, mentioned, “I have been waiting for more than a decade for the law to change, but nothing has changed. I cannot wait more and need to take action myself.”

The civic movement and campaign have become vibrant, even cautioning that Japanese nationals will all have the same surname in 500 years unless the same surname law changes. Business leaders and organisations, including Japan’s powerful business lobby Keidanren, have also urged the government to legalise the option of separate surnames, citing the need to support women in business. Since 2018, more than 350 local assemblies have officially requested the government to amend the law. According to surveys, the Japanese public would broadly support this change. The call for the government to ratify the Optional Protocol to the CEDAW, allowing for individual complaints, has also intensified. Japan is scheduled for its national review in front of the CEDAW Committee in October 2024. With demands for change growing louder, the momentum for reforming Japan’s surname laws appears to be building.

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