In re Futyu Hostel, Tokyo High Court, Civil 4th Division, Japan (16 September 1997)
An LGBT group called OCCUR was denied permission to stay in a government-run youth hostel by the Tokyo Educational Committee. OCCUR appealed the decision. The Tokyo District Court reversed the decision of the Committee, which then appealed to the High Court.
OCCUR, an LGBT group composed of young adults, stayed at Seinen no Ie in Futyu (a “Youth Hostel” sometimes referred to as “Fuchu Youth Hostel”) in February 1999. The local government of Tokyo owned the hostel, pursuant to the Tokyo Seinen No Ie (Youth House) Act, Article 8 (1)(2). The hostel did not charge individuals and groups who used its facilities. OCCUR accused the hostel’s management of mishandling the homophobic behaviour of other groups who were staying at the hostel at the same time as OCCUR.
After several meetings between OCCUR and the management, the hostel declined OCCUR’s application to stay overnight at the hostel again, pending a judgment by the Tokyo Educational Committee. The Committee denied OCCUR overnight stays at the hostel because sexual activity might occur in rooms shared by homosexuals. The Committee stated that it would also prevent opposite-sex heterosexuals from sharing rooms for the same reason. The Committee reasoned that the possibility of sexual activity violated the goal of the hostel, which was to facilitate the healthy development of Japanese youth. The Committee allowed OCCUR to use its facilities during the day.
Whether the government could deny an LGBT youth group permission to stay at a student hostel.
Constitution of Japan, Article 14 (equality and non-discrimination), Article 21(freedom of association and assembly), and Article 26 (right to education).
Local Autonomy Act, Articles 244(2) and 244(3).
Tokyo Seinen No Ie (Youth House) Act, Article 8 (1) (2).
Reasoning of the Court
The plaintiffs raised a number of issues. They argued that statements by the manager of the Futyu Hostel had insulted OCCUR’s members and amounted to unlawful defamation. These statements suggested that Japanese society did not support the activities and beliefs of OCCUR. The statements implied that homosexuality had a negative impact on young people and that gay men who shared a room would have sexual contact. Their main argument, however, was that the Educational Committee had contravened the constitutional rights of OCCUR’s members. By prohibiting OCCUR’s members from staying at the hostel, the Committee had violated the rights of association and education. The plaintiffs also argued that the Committee violated OCCUR’s rights under the Local Autonomy Act.
The Committee responded that the statements by the hostel’s manager did not amount to unlawful defamation because they were made during a private conversation. There was no degradation of OCCUR’s social reputation and therefore, defamation had not occurred.
The Committee maintained that the hostel could legally prevent OCCUR from staying overnight. The hostel was founded with the goal of facilitating the healthy development of youth. Many of the hostel’s visitors were minors who, according to the Committee, were immature and impressionable. Exposure to sexual activity, regardless of the sex and sexual orientation of the parties involved, would compromise the students’ healthy development. Discrimination did not occur because male and female heterosexuals were also not permitted to share rooms.
The Tokyo High Court agreed with the Tokyo District Court and ruled in favour of OCCUR but rejected the claim of defamation. The High Court found that it was unlawful for the hostel not to accept OCCUR’s application, despite the Committee’s authority to decide the issue. The Court ruled that the hostel should have accepted the application and waited for the Committee to issue its decision. Despite rejecting the defamation claim, the Court held that the Committee’s decision was unlawful for a number of reasons.
First, the Court rejected the claim that sexual activity had an inherently negative effect on youth who witnessed or took part in such activity. In practice, furthermore, sexual activity would occur rarely if at all because of the hostel’s dormitory-style rooms; neither heterosexuals nor homosexuals would be likely to engage in sexual conduct in view of other people. But the Court did recognise that the hostel had the right take measures to restrict sexual activity on its premises.
The Court also ruled in favour of OCCUR on constitutional and statutory grounds. Articles 21 and 26 of the Constitution guaranteed freedom of assembly and association and the right to an equal education. Based on these provisions, OCCUR had the right to use the hostel. Additionally, the Local Autonomy Act limited the government’s ability to deny access to public facilities, such as those governed by the Tokyo Seinen No Ie (Youth House) Act. Based on these constitutional and statutory provisions, the hostel could not prevent OCCUR members from using its facilities. While heterosexuals could be accommodated in sex-segregated housing, homosexuals could not. The hostel’s sexual orientation separation policy was therefore a violation of both the Local Autonomy Act and the Constitution. The Court did not clarify whether housing OCCUR’s members in single rooms would have survived constitutional scrutiny (assuming the hostel had enough single rooms to accommodate OCCUR’s members).
Furthermore, the Court dismissed the notion that the possibility of same-sex sexual activity provided a justification for prohibiting homosexuals from staying in the same room. Assuming that the hostel had a legitimate interest in limiting sexual activity, the Court held that the mere possibility of sexual activity would not justify the exclusion of OCCUR members. The Court stated: “[t]here needs to be a concrete and substantial possibility of sexual conduct. This applies the same to heterosexuals when the facility does not have enough room to separate them.” The Committee had provided no evidence that extensive sexual activity was likely to occur. The Court observed that, even had it found a high risk of sexual activity, the hostel would still have been required to grant OCCUR access while taking measures to limit its occurrence.
The Court noted that the sex-segregated housing policy was intended to curb sexual activity. This policy merely reduced the likelihood that guests would have sex with each other. However it had limited effect. The Court stated that to apply the policy “systematically to homosexuals to minimise the already low possibility of sexual conduct and completely preclude homosexuals from using the Youth Hostel is an undue restriction on the homosexual’s right to use public facilities”. Although the hostel had permitted OCCUR to use its facilities during the day, the Court held that it was: “a core feature of the Youth House to be able to use it overnight, and this cannot be regarded as a minor benefit. Homosexuals have a right to use the Youth House and benefit from its features.”
The Court ruled in favour of OCCUR on all claims except that of defamation. It awarded OCCUR compensatory and punitive damages and attorney’s fees.
In re Futyu Hostel, Tokyo High Court, Civil 4th Division, Japan (full text of judgment, PDF)