Japan’s top court has ruled that the lack of provisions in the Civil Code and the Family Register Act for marriage partners to choose to have separate surnames is not unconstitutional. The decision came in response to three common-law couples seeking to have their marriage registrations accepted with separate surnames.

Family structures and the ways people lead their lives are becoming increasingly diverse. The judicial decision is at odds with the changing times.

The constitutional ruling by the Supreme Court is its second on the issue since 2015. It is extraordinary that the 15-strong Grand Bench has handed down a decision on two separate cases with similar content. The latest ruling has stayed true to the 2015 decision, and new views on the issue were not put forward. Even after considering the intervening years’ changes in society and public awareness, the court concluded a change was unnecessary.

Forcing one member of a married couple to change their surname is a human rights issue. Despite this, the Supreme Court avoided directly ruling its unconstitutionality.

We are forced to say that their actions are equivalent to abandoning their roles as “guardians of the Constitution.”

In the 2015 decision, the reason given for concluding that legally requiring shared surnames is constitutional was: “As a way to refer to families, the bedrock of society, it is logical to have one surname.”

But families come in a variety of forms. Common-law marriages are rising, and divorces and remarriages are no longer rare occurrences. In a 2017 Cabinet Office survey, over 64% of respondents said that having different surnames doesn’t affect family cohesion.

At the same time, women are continuing to advance in professional society, and a change in surname can seriously impede them. It is harder for them to get their achievements and career building before the name change recognized.

Compared to in 2015, public support for a system allowing married people to choose whether to have the same or separate surnames has grown. Polls by the Mainichi Shimbun and others in March found 51% in favor, far exceeding the 23% opposed. Regional assemblies across the country have adopted a series of written statements calling for legislation for selective separate surnames. The top court’s latest decision does not directly acknowledge the present reality.

What cannot be overlooked is that in 96% of cases, wives take their husband’s surname. This situation, in which almost all instances of surname changes involve a woman being forced to make the switch, is at odds with the equal rights of husband and wife guaranteed in Article 24 of the Constitution of Japan.

The single surname system is one of the factors contributing to anachronistic ideas of the “husband going out to work and the wife protecting the home” having not been dispelled.

Of the Grand Bench’s 15 justices, four concluded it was unconstitutional. Of them, two said that the lack of provisions for separate surnames in law “are in opposition to the freedom of marriage sought by Article 24 of the Constitution. It is inappropriate interference by the state.”

Many workplaces allow people to continue to be referred to by their pre-marriage surname. Driver’s licenses, resident registration, My Number cards and other identification also allow for using both surnames. But use of the names is reliant on agreement from the affiliated group or contracting partners involved — meaning these small measures have limits.

In the first place, our names are a fundamental part of our identities as respected individuals. There are people out there who, by changing their surname, feel they are no longer truly themselves.

There is reportedly no country other than Japan that legally requires married couples to hold the same surname. The U.N.’s Committee on the Elimination of Discrimination Against Women has repeatedly called for this to be corrected.

The Legislative Council of the Ministry of Justice, an advisory body to the justice minister, put forward a report on introducing selective separate surnames in 1996, but it has been collecting dust for a quarter of a century.

The 2015 ruling sought a review in the National Diet, but no progress was made. For this reason, the judiciary’s role came with high expectations this time.

But in this most recent ruling, too, the Supreme Court has not judged proactively, and left the response entirely up to the politicians, stating, “There is no recourse for this issue but for it to be debated in the Diet.”

If that’s how it is, then there is nothing left but for the legislature to do something. Minority ruling coalition party Komeito and many opposition parties back introducing selective separate surnames for married couples. The ruling Liberal Democratic Party (LDP) is the crucial factor.

From autumn 2020, movements primarily among junior LDP lawmakers to implement the system have gained momentum. In March this year, lawmakers for and reluctant about separate surnames began establishing groups, and debate heated up.

But the conservative side’s view that the change will “lead to the destruction of the traditional shape of families” is deep-rooted, and a party-wide decision has been put off to after the autumn general election. There are concerns that the Supreme Court decision may put the brakes on discussions over whether to introduce the changes.

What surname you hold is an issue that strikes at people’s individual choice on how to lead their lives. Discussions cannot be allowed to stop.