OTARU ONSENS LAWSUIT
BRIEFING
(Freely forwardable)
WHY THIS CASE MATTERS
September 7, 2004


(Original version of this essay, dated November 1, 2002, was released shortly before the November 11, 2002 Sapporo District Court Decision. The following version, dated September 2004, has been revised and updated for the September 19, 2004 Sapporo High Court Decision. Released to mass media around the world as a primer for the case.)

------------------------------
LETTER TO THE EDITOR
ON RACISM IN JAPAN--THE OTARU BATHHOUSE LAWSUIT

By Arudou Debito, Sapporo, Japan
September 7, 2004
(www.debito.org, debito@debito.org)

An important court decision, influencing the lives of millions of people in Japan, will be handed down on September 16, 2004.

I refer to the Otaru Bathhouse Lawsuit, in which I am one plaintiff. With this case, Japan's judiciary will clarify if foreigners and their kin are legally protected against racial discrimination in Japan.

A little background: Otaru, a seaport in the northern island of Hokkaido, is renowned for its traditional atmosphere and delicious seafood. It is also famous for its treatment of the Russian sailors who bring in that seafood.

As far back as 1993, Otaru bathhouses decided, after apparent experiences with some ill-mannered sailors, to exclude all foreign customers. They put up multilingual signs saying "JAPANESE ONLY" on their front doors.

Since public bathing is as fundamental to Japanese life as sushi and sake, this angered foreign residents who also enjoy a good soak.

People who contacted the bathhouses were rebuffed with nonsense like, "you foreigners can't understand Japan's unique bath customs", "our customers demand foreigner-free tubs", "our management can't tell you apart from the sailors", and "we can't just refuse Russians; that would be blatant discrimination, so we refuse all foreigners out of fairness."

Similar appeals to the local, regional, and national authorities proved equally fruitless. They discovered that although Japan's constitution forbids discrimination by race, there is no actual law on the books to enforce it. Thus these businesses were doing nothing "illegal" and could not be compelled to scrap their policies.

Stalemated, for years the problem was under carpet swept, allowing it to spread. Soon in at least eleven other other cities nationwide (FOOTNOTE ONE) --stores, restaurants, taxicabs, nightclubs, bars, and even a barbershop refused service to customers who did not "look Japanese". One bathhouse forced non-Japanese into segregated "foreigner baths", charging them six times the Japanese price. After the 2002 World Cup, establishments which sprouted "anti-hooligan" exclusionary signs simply left them up.

For years, friends and I lobbied Japanese lawmakers to abolish these practices. We pointed out that Japan ratified the UN's Convention on Racial Discrimination in 1996, meaning all levels of government are required to take immediate measures, including laws, to eliminate racial discrimination. To no avail. Every proposal submitted has been buried or killed in committee.

I realized the depth of the problem when I obtained Japanese citizenship in 2000. I went to one of those bathhouses bearing proof of nationality, yet was still refused entry. My White face would "cause misunderstandings" with customers. They also admitted the same would happen to my Japanese daughter, because she unfortunately looks more like her Caucasian father than her Asian mother.

Therein lies the peril of determining social status at birth. There are around 40,000 international marriages every year in Japan, producing thousands of international children. They do not show up in statistics on foreign residents (as they are not foreigners), and are challenging hidebound preconceptions of how one "looks Japanese". However, without future legal protections, their access to public goods will be impeded simply because of their phenotype.

This is why, after exhausting all other recourses , a German, an American, and a Japanese (myself) decided in 2001 to sue a bathhouse and the Otaru city government. It was time to establish legal precedents.

And not before time. To be sure, racism and discrimination occurs in all countries in varying degrees. But it is unacceptable for Japan to be the only developed country without any form of law against it.

Consider the repercussions. For generations, non-Japanese residents--even those born and raised in Japan--have been routinely refused simple credit lines, apartments (even in public housing), and civil service positions. They can also be deprived of health and unemployment insurance, pensions, and job security--expressly because they are foreign.

Moreover, foreigners are nowadays targeted as a social bane. Four years ago Tokyo Governor Ishihara called for foreigner roundups in the event of a natural disaster. Periodical media campaigns allege foreigner crime waves, with police notices warning against "suspicious characters" (who happen to have darker skins and thick accents). The public have even been advised to notify police if foreigners are seen in groups speaking a foreign language, and research budgets for "genetic racial profiling" have been provided for the National Police Agency (FOOTNOTE TWO). Thus racial profiling, local law enforcement officials glibly say, is merely part of crime prevention.

There is little that the million or so foreigners of racial distinction in Japan can do about this, except speak out (and face criticism for being "bad guests"), or quietly presume upon the eventual goodwill of the Japanese government.

Or sue, through Japan's expensive and time-consuming judicial system. That is why the Otaru Lawsuit decision matters. For if government goodwill is not forthcoming, what then?

Exactly five years after first being refused entry, and after nearly four years in court, we shall see if local authorities are liable for not fulfilling a basic constitutional duty: equal protection of all their residents.

Initial signs are not hopeful. In 2002, the Sapporo District Court ruled that the discriminating bathhouse was culpable--but not for racial discrimination. For "unrational discrimination", a legal distinction repeatedly rejected by the United Nations. At the same time, the Otaru City government was absolved of any responsibility for not making racial discrimination an illegal practice.

September 16, 2004, will see the results of our appeal against this ruling. One hopes that international attention to this case will help. It may raise awareness of problems facing foreign residents and taxpayers here. It might even loosen the Gordian Knot inexorably tangling notions of race and nationality in Japan.

928 words
------------------------------
ESSAY ENDS

FOOTNOTE ONE: "Exclusionary signs up in at least eleven Japanese cities" Photo gallery at
http://www.debito.org/roguesgallery.html

FOOTNOTE TWO: Police "Genetic Racial Profiling", Japan Times article at
http://www.debito.org/japantimes011304.html

More on the case at
http://www.debito.org/otarulawsuit.html

More on the author at
http://www.debito.org

ENDS

(return to the Otaru Onsen Lawsuit Site)