doe-v-npa.md

Jane Doe v. NPA (Bathroom Case)

2021-GYO-HI No.285 Reversal of Judgment on Administrative Measures Request, State Tort Claims Case

Decided July 11, 2023

Third Petty Bench, SCOJ

Translation notes: re-styled to be Markdown-friendly. Added headers missing in the original document.

Judgment

1. The judgment below is VACATED for the part relating to the request to reverse the NPA's judgment on bathroom use. The initial appeal by the Appellee is DENIED.
2. The appeal by Appellant is DENIED for the remaining part.
3. With regard to the fees and costs of this litigation, 10% SHALL BE PAID by Appellee and the remainder SHALL BE PAID by Appellant.

Reasons

On writ of certiorari (excluding partdenied by this Court), by Counsel Yamashita Toshimasa:

Introduction

In this case, Appellant, a regular-service national public officer and diagnosed with gender identity disorder (GID) by a doctor, having requested the National Personnel Authority to take administrative measures on workplace bathroom use and been denied such (hereinafter "Disputed Judgment"), seeks the reversal of Disputed Judgment against Appellant.

Facts

Facts found and finalized by the court below includes:

1. Article 86 of the National Public Officers Act notes that officers may request, to the NPA, on any matters relating to the work conditions (including wage), to have the NPA, the Prime Minister, or the chief of the responsible agencies take appropriate administrative measures. Article 87 notes that upon such request, NPA shall conduct investigations, oral arguments, and other fact-finding procedures it deems are necessary, and that it shall adjudge in a manner that is fair to the public and the parties and from the viewpoint of improvimg officers' efficiency.

2. Appellant, born REDACTED, was employed as REDACTED on April REDACTED. She has been working in the same post in Ministry of Economy, Trade, and Industry since May 2004. The building her office is located in (hereinafter "Office Building") has three gendered bathrooms per floor. Unisex bathrooms do not exist in the floor of her office (hereinafter "Office Floor"), but exist in multiple floors including REDACTED. Appellant is a biological male, but has felt string dyshoria since childhood. Appellant has been administered female hormones since around 1998, was diagnosed with GID by a doctor around 1999, and received REDACTED at around 2006. She has been living her private life as a woman since around 2008. Appellant, by March 2010, was diagnosed by a doctor that her blood male hormone lavel was significantly lower than that of men of similar age, and that the probability of her commiting sexual violence was low. Appellant has not received a gender-confirming surgery for health reasons.

3. Appellant has told her boss about her GID in July 2009. In October of the same year, she told her request on dressing in feminine clothing and using women's bathroom in the workplace to the METI officer responsible for the matter. Responding to this, on July 14th, 2010, in METI with her consent, a meeting on her GID was convened with her office's colleagues. During the meeting, the officer, after Appellant left the room, sought opinions on her using women's bathroom in Office Building; it looked as thoigh a few female officers were not comfortable. The officer sought opinions on her using the women's bathroom located one floor above Office Floor. One female employee noted that she regularly uses that bathroom. Based on this conversations, it was decided that in METI, Appellant would not be allowed to use the women's bathroom on Office Floor and the floors one floor above or below Office Floor, and that she may use other bathrooms. (hereinafter Bathroom Measures). Appellant started to dress up in feminine clothing the week after the meeting, and has mostly used the women's bathroom two floors above or below Office Floor. There has been no issues with other employees related to this measure. Appellant has changed her name in REDACTED 2011 with permission from a family court, and has been using that name since June 2011.

4. Appellant requested, on December 27th, 2013 under Article 86 of the NPOA, that she receive the same treatment as other female officers, such as being able to use women's bathrooms in her workplace freely. NPA, on May 29th, 2015, adjudged that both requests be denied (Disputed Judgment. Hereinafter the part relating to the bathroom use is referred to as "Disputed Part of Judgment").

Judgment Below

The court below denied the request to reverse Disputed Part of Judgment, as summarized below:

The measure by METI and their continued application of the measure is a response in fulfilling the obligations of METI to build a workplace appropriate for all officers, including Appellant. Disputed Part of Judgment therefore does not exceed or abuse the discretion, and is not unlawful.

Opinion of the Court

However, the judgment below cannot be affirmed, for reasons stated below:

Standard of Review

When the NPA adjudges requests for administrative measures pursuant to Article 86 of the NPOA, it requires a professional decision based on actual situations of personnel management and officers' workstyle, from the viewpoint of fairness to the general public and to the parties and the promotion of efficiency of the officers, on a broad range of work conditions. (See Article 71, 87, NPOA.) It should be interpreted that this decision is left to the discretion of NPA. Threfore, we interpret that the judgment becomes unlawful when it exceeds or abuses its discretion.

Application

1. Applying this to the case, it can be said that the Bathroom Measures sought to ensure the appropriateness of the work environment for officers, including Appellant, with regard to the use of bathrooms inside Office Building.
2. Appellant, having received a GID diagnosis by a doctor, is forced, under Bathroom Measures, to use men's bathrooms despite her gender identity, or to use women's bathrooms away from Office Floor. She regularly faces a considerable amount of disadvantage.
3. While Appellant has not received, for health reasons, gender-affirming surgeries, she has been administered female hormones and received REDACTED, and has been diagnosed by a doctor to have a low likelihood of committing a sexual violence due to sexual urge. There have been no issues after the meeting, when Appellant started to wear feminine clothing during work and to use women's bathrooms two floors away from Office Floor. During the meeting, the officer responsible only noted that it seemed as though several female officers were not happy with her using the women's bathrooms on Office Floor, and the record does not show that any of them clearly objected. Furthermore, the record shows that during the 4-years, 10-months period between the meeting and the Disputed Judgment, no investigation as to whether other officers required special considerations with regard to Appellant's bathroom use occured, nor any reconsideration of the Bathroom Measures.
4. This shows that, at least when the Disputed Judgment was issued, it was unlikely that an issue would arise from Appellant using women's bathrooms inside Office Building freely, and that there existed no officer who were confirmed to have required special considerations. There was no concrete reason justifying her suffering. The decision of NPA, with regard to Disputed Part of Judgment, is significantly lacking in its validity, because it overemphasized the considerations for other employees without regard to the particular facts, neglected Appellant's disadvantage unlawfully, and did not adjudge matters from the viewpoint of fairness to the general public and to the parties and the promotion of efficiency of the officers.

Opinion Conclusion

Therefore, Disputed Part of Judgment is unlawful as it exceeds or abuses the discretion.

Conclusion

The decision below, contrary to this opinion, presents a violation of law clearly affecting the judgment. The petition states a valid reason, and the parts of the decision below related to the request for reversal of Disputed Part of Judgment must be VACATED. As noted above, the claim is proper, and the judgment of the district court granting such claim is valid; therefore, Appellee's initial appeal shall be DENIED for the part stated above. Other appeals presented by Appellant, the petition for a writ of certiorari having been denied in the order, are DENIED.

The justices UNANIMOUSLY DECIDES as stated above. Justice Uga, Justice NAGAMINE, Justice WATANABE, Justice HAYASHI, and Justice IMASAKI each filed concurring opinions.

Justice UGA, concurring.

Editor's Note: Justice Uga is a law professor and an expert on administrative law. He is also regarded as the most liberal member of the Supreme Court.

1. In my opinion, the split between the court below and the district court was caused by 1) the difference in how much they recognized, as a important legal interest, Appellant's interest in living her social life based on her own gender identity, given that she is a MtF transgender who, after female hormones administration and REDACTED, is likely to be percieved as a woman, and has had her name changed to a feminine one, yet is still registered as male on the family register; and 2) the difference in the level of emphasis they put on the discomfort and embarassment the female coworkers, who knew Appellant was transgender, have with regard to using the same women's bathrooms as her.
2. In considering this, there exist a question on how to evaluate the fact that she remains male on the family registry. In this case, the record shows that had she been recognized as female on the family registry, METI's bathroom-use policy would have been to treat her in the same way as other female officers. Under the current GID Act, Appellant had to receive a gender-confirming surgery in order to change her gender marker on the family register. While many understand that the constitutionality of the statute has been debated, regardless of the law, transgender people's gender identities should be respect to the extent possible whether or not they have received surgeries, as gender-confirming surgery necessarily invades one's body, creates a risk for one's life and health, places significant economic burden, and is not possible for some due to health concerns. In this case, Appellant had a reason preventing her from receiving gender-confirming surgery for the foreseeable future, and whle she remained male on the family registry, METI should have respected her interest in living her social life according to her gender identity.
3. Given that METI had a duty to maintain the working environment to ensure and promote officers' efficiency (see Article 71, Paragraph 1 of NPOA), it had to accommodate their buildings' bathrooms to Appellant's interest in living her social life according to her gender identity, while at the same time accomodating them to her coworkers' feelings. Here, when considering whether the METI's actions, emphasizing on female officers' discomfort and embarassment when using the same women's bathrooms as Appellant, can be justified against her interest in living her social life according to her gender identity, as the opinion of the Court points out, I find that there existed no actual likelihood of her causing a trouble.
4. At the time of Disputed Judgment, May 29th, 2015, Appellant had been working in female clothing for 4 years and 10 months, and 4 years had passed since June 2011, when she changed her name and started using it. Therefore, even if a female officer, recognizing that she is a MtF transgender who is still registered as male on the family register, could have used the women's bathrooms on the Office Floor and the floors above or below that floor, they should not have emphasized that fact. I find it difficult to justify the restrictions on her interest in using the bathroom based on her gender identity on the same conditions as other female officers.
5. Furthermore, the discomfort and embarassment of female coworkers who knew Appellant was legally male, possibly resulting from Appellant using the same women's bathrooms as her, was likely due to their insufficient understanding of transgender people, something that could be resolved by training. While the temporary restrictions on the use of women's bathrooms were inevitable after the meeting, convened as a result of Appellant coming out and requesting use of women's bathrooms in October 2009, METI could have performed a training early, promoting understanding of transgender people and revisiting the restriction. Yet they did not, instead repeatedly coercing her to receive gender-confirming surgery for almost 5 years. This shows that they did not do enough work in improving workplace environment to achieve inclusinve society that respects diversity.
6. In conclusion, Disputed Part of Judgment, under the facts of this case, in exercising NPA's discretion, overemphasized the discomfort and embarassment female workers who knew Appellant as a MtF transgender who is still legally male, and underestimated her interest in using bathrooms based on her gender identity on the same conditions as other female officers. It must therefore be reversed as unlawfully exceeding their discretion.

Justice NAGAMINE, concurring.

Editor's Note: Justice Nagamine is a former ambassador to the UK and South Korea.

1. I agree with the opinion of the Court, and would present the following additioal matters:
2. I do acknowledge that METI introduced Bathroom Measures to adjust the interests of the officers, after the officer responsible for the meeting saw a few female officers apparently being uncomfortable. However, because only Appellant suffered a disadvantage with regard to bathroom use restrictions, I must note that Bathroom Measures was unequal in terms of how they coordinated this action. That said, given that Appellant started working in feminine clothing the week after the meeting, Bathroom Measure could be interpreted as a intermediate measure to prevent disruptions caused by sudden change in circumstances. It might well have been rational in July 2010, also considering that Appellant did not initially object.
3. However, given that Appellant had been living her life as a woman in the workplace for over 4 years prior to Disputed Judgment, even if METI recognized discomfort by female officers at the initial meeting, it had the duty to conduct a survey on whether such discomfort was resolved, to reconsider whether justifications exist as to maintaining Bathroom Measures that unilaterally imposed restrictions on Appellant, and to revise the measure if needed. There existed no troubles arising from Appellant's bathroom use.
4. Given this circumstance, and the fact that it is an important interest for every person to live their social life as the gender they identify as, and certainly compelling one for transgender persons, and that such interest should receive legal protection, as the opinion of the Court notes, I believe that NPA's Disputed Part of Judgment denying Appellant's request for bathroom use, is significantly lacking in its validity.

Justice WATANABE, concurring.

Editor's Note: Justice Watanabe is an antitrust lawyer.

1. agree with both the judgment and the reasoning of this Court. However, I would also like to note the following, on bathroom use in Office Building by Appellant, who is transgender (MtF):
2. I do not deny that METI has discretion, based on its right to manage their buildings. However, as the opinion below notes, gender, as a personal attribute affecting social and intimate life, is inseparable from one's life as an individual. It should be an important legal interest for a person to live their social life as the gender they truly identify as, and should receive due respect.
3. However, even important interests must be subjected to rational restrictions when other interests conflict with them. Due respect needs to be given to officers who use gendered bathrooms based on biological distinctions, and this case does not deny that, when the interests of transgender Appellant and (cisgender) female officers using bathrooms in Office Building conflict, there needs a reconciliation between the two.
4. While female employees' interests cannot be ignored, the legal interest in question for Appellant is an important one, essential for life as a human being. Under present circumstances where misunderstanding and prejudice against sexual and gender minorities still presist, such reconciliation must not be conducted in an subjective and abstract way, instead requiring an objective and fact-based process. Applying this to this case, while Appellant has not received gender confirming surgery, she started dressing in feminine clothing the week after the meeting, and was socially likely to be recognized as a woman in terms of her behavior, mannerism, and look. With regard to Appellant's use of women's bathrooms, as the opinion of the Court and the district court notes, we must first consider seriously what the female officers' intersts (that would be lost by Appellant's bathroom use) were, and then consider objectively, based on presented facts, whether such interests were actually infringed or at the risk of being infringed.
5. Again, in deciding this case, METI noted that female officers "looked" uncomfortable at the initial meeting, decided, based on that observation, that Appellant would be banned from use not only the woman's bathroom on the floor she works at, but also the floors above and below it, totaling 3 floors, and maintained Bathroom Measures for around 4 years and 10 months, reasoning that Appellant had never received gender confirming surgery and thus was still registered as male on the family registry. It should be obvious that METI's measure was irrational, and is unfair because it unilaterally imposes restrictions on Appellant, and Appellant only.
6. This is especially true because, in general, one points out that even if someone is not comfortable with transgender persons using bathrooms of their identifying genders, such discomfort may be reduced over time as they recognize and understand the transgender persons' circumstances. (Record whos that there existed female officers who were thinking as described.) They also point out the importance of practicing processes that focus on respect for transgender persons' legal interests. Under this viewpoint, even if METI, to prevent initial confusion by female officers, could have introduced temporarily, as an intermediate measure, to prohibit her from using the bathrooms at her Office Floor (or, the floors above and below that floor, although we find it dubious this was necessary), there existed ways to, and they should have done measures to, as a building administrator, encourage female officers' understanding about her and to reduce or rescind such ban over time, instead of persistently demanding gender confirming surgery.
7. It is also unclear, based on facts granted in the opinion of the court below, why female officers did not object in the meeting. While it is natural that some female officers might be confused by her requesting use of women's bathrooms, since they recognized her as male, there could be multiple grounds for them not to raise objections during the meeting. It might be that they did not because they believed they should allow her to use bathrooms for the gender she identifies as. (Record shows that some female employees might have been of this understanding.) While I cannot rule out the possibility of them being embarassed for noting objections before a large number of people, it is also very possible that, they, while being confused, considered it inevitable given her circumstance, or that they did not believe objections were appropriate. (Record shows that some female employees might have been of this understanding).
8. If the judgment below did not consider the possibility of such diverse reactions by female employees, and used a subjective and abstract concept such as "sexual interest such as sexual embarassment or fear" as a basis for the upholding the rationality of Bathroom Measures and Disputed Part of Judgment, then I am concerned that it might lead to them dismissing the existence of women with diverse beliefs.
9. As noted above, it is true that in reconciliating the interests related to bathroom use, the society has long distinguished male and female based on biological sex, and that they must consider officers who have used bathrooms based on such separation. The individual circumstances of officers who are sexual or gender minorities, as well as the safety of bathroom use (such as defending against offenders if such bathroom is used by non-officers), inform this decision. Therefore, uniformly determining how to handle those scenarios is difficult, and it is indisputable that individual circumstances matter when judging such issues.
10. In all circumstances, however, I strongly wish that building administrators not assume that all female officers are afraid of, and against, transgender (MtF) persons' use of women's bathrooms, seek inclusion to the extent possible, and practice processes that educate officers on understanding respect for legal interests of sexual and gender minorities.

Justice HAYASHI, concurring.

I concur for the reasons stated in Justce WATANABE's concurring opinion.

Justice IMASAKI, concurring.

Editor's Note: Justice Imasaki is a former chief judge of Tokyo High Court.

1. It is a natural yet earnest demand for a transgender person to be treated in a way appropriate for the gender they identify as, in various areas of our social life. How we implement this, is a task to be discussed by the society as a whole. Bathroom use is only one example; the need for such work should be apparent if you imagine the mental suffering MtF transgender people would face if forced to use men's bathrooms against their will.
2. In the meeting, Appellant discloses being transgender to female officers herself, and none of them openly objected during the subsequent hearing. Appellant had been using the women's bathrooms she was allowed to use under Bathroom Measures, for around 4 years and 10 months at the time of Disputed Judgment (which, after excluding the absense period, is about 3 years and 8 months), and no trouble has arisen. The court below noted that, prior to the meeting, Appellant had been administered female hormones continuously since 1997, had been fully presenting as a woman in her private life, and had not experienced any troubles related to those.
3. The opinion of the Court today rules directly on the validity of Disputed Parts of Judgment against Appellant's request for administrative measures. However, it goes without saying that the substantial issue was the series of METI's handling of Appellant's case. If there is one thing people should learn from this, it is the attitude workspace facility administrators and human resource officers should take. This case shows that they have the responsibility to respect the situations transgender people face, and to accommodate such people in a sincere manner.
4. This still leaves some tasks to be resolved in the future. There likely is no consensus in the society for allowing, without conditions, bathroom uses, in cases similar to this, but with no prior explanation to or understanding by employees sharing such bathrooms. This is why people hold meetings like the one at issue here, giving them the opportunity to discuss. However, it is not impossible that negative comments, resistance, or the feeling of anxiety follow, and I do find it possible (though hope it would not happen) that stakeholders' consensus cannot be achieved despite sincere efforts. In terms of provoding information, determining the details - when, to which officer, how, and what - requires a careful balancing between protection of privacy and the need to inform the stakeholders. (In particular, whether to tell them that a person is transgender is sometimes a serious question, and it should go without saying that they cannot act against the person's will.)
5. While it is likely that people would seek policies or guidelines regarding those tasks, a uniform solution is unlikely to be effective, since the circumstances - including the workplace's organization, scale, building structure, other work environment-related matters, the type of work, number of affected employees, human relationship, and the transgender person's work-related circumstance - differ.
6. Currently, the only solution is to listen carefully to both the needs and intention of the transgender person themself, and the opinions or reactions of other employees, and to find the best method from the viewpoint of maintaining workplace environment and ensuring safety. Similar cases are likely to occur in various areas of our society, and I expect that more people, including workplace or facility administrators, human resource officers, employers, would face this puzzling situations. I look forward to people establishing a standard policy or guideline, based on the experiences people have accumulated, as seen in some private companies. Issues like these cannot be resolved peacefully without understanding by the people, and I hope that the society as a whole discusses the issue and establishes a consensus.
7. Finally, I would note that this case does not handle how public facilities (including bathrooms), expected to be used by the general public, should be used. This is a matter to be discussed another day.