Japan: LGBTQ+ Workers’ Rights

A transgender government employee in Japan sought to use the restroom that matched their gender identity, which did not match the gender on their ID card. When the employee sought permission to use the restroom of their gender identity, the government refused. The employee sued.

No Explicit Protections for LGBTQ+ Employees

In Japan, there are no laws that explicitly prohibit employment discrimination against LGBTQ+ employees. In June 2023, Japan passed the Act to Promote LGBT Understanding, which does not extend actual protections to LGBTQ+ employees, but instead encourages awareness. This act also extends to schools and the government.

“The main purpose of the act is to just promote the understanding of the situation of the LGBTQ people and their situation among the whole society of Japan,” said Mariko Morita, a lawyer with Mori Hamada & Matsumoto in Tokyo. Employers “are required to make an effort to promote understanding among their employees regarding the LGBTQ or gender identity issues and take measures to create a good working environment for LGBTQ people, … but that’s only the requirement of the act—making an effort, and not strict liability for employers.”

This act was a compromise within the legislature between those who pushed for stronger protections for LGBTQ+ employees and those who opposed them. For now, LGBTQ+ employees in Japan are covered under the same anti-discrimination laws as any other employee in Japan. The Act on Equal Opportunity and Treatment Between Men and Women in Employment can potentially be activated if an LGBTQ+ employee is discriminated against.

In Japanese society, there is a labor contract law that “is very applicable to everyone, every employee,” said Daisuke Yamamoto, an attorney with Oh-Ebashi LPC Partners in Tokyo. If an employer dismisses employees based on their sexuality or their gender identity, that would be a violation of this law, he said.

Protections Under Existing Laws

The existing laws mean an employee who has been discriminated against can sue, even if they cannot technically sue for discrimination based on their LGBTQ+ identity. “Currently, the government guidelines regarding the harassment states that if there is some statement about [the employee’s] gender identity or sexual orientation, then it can be sexual harassment, or sometimes power harassment, under Japanese law,” Morita said. “So they can make any claims stating that it is illegal harassment. They can sue the company or they can sue the actual harassers under those using those acts.”

Debate About Same-Sex Partner Benefits

There is also an ongoing debate about the status of same-sex couples and the protections and benefits afforded to employees and their same-sex spouses. Same-sex spouses are not officially recognized in Japan, which can lead to many complications. There are currently active cases on the issue of whether same-sex spouses of employees can access benefits.

“We assume that there will be a decision made by the Supreme Court in the near future,” Morita said.

One recent case was decided in favor of same-sex couples. “The district court and the high court says de facto spouses only include heterosexual partners, but the Supreme Court says it includes everybody, including same-sex partners as well,” Yamamoto said.

Employers Should Remain Aware

While so much about LGBTQ+ employees’ rights and protections is unclear or unresolved, employers should take care to remain aware of the needs of their LGBTQ+ employees and make sure to not discriminate against them or terminate their contracts based on their identity, as employers may be liable under the existing Japanese employment laws. “The employer has a lot of little restrictions over the termination of the employment agreement, and Japanese law is very favorable to the employees,” Yamamoto said.

Whether or not the labor law changes might depend on shifts in society, as well as the political forces within the legislature in Japan. Though the recent Act to Promote LGBT Understanding doesn’t extend protections, the active cases touching upon LGBTQ+ issues might lead to more advances in protections for employees.

In the case of the transgender government employee seeking the right to use the restrooms in their workplace, despite not having specific protections based on their transgender status, the employee was still able to sue and was successful in their case. Whether this will set a precedent remains to be seen, but employers should keep in mind that even without explicit protections in place, discriminating against LGBTQ+ employees can still have consequences.

Katie Nadworny is a freelance writer in Istanbul.