How U.S. Enshrined Women's Rights in Japan

Years before the Equal Rights Amendment (ERA) to the U.S. Constitution flared and then fizzled, Americans wrote an ERA (actually an article) into Japan’s post-war constitution. To be more accurate, a young woman, Beate Sirota Gordon, wrote the language of Article 24 that guarantees equal rights for women.

Gordon passed away over New Year’s at age 89, the last surviving member of that small cadre of American occupation officers and civilians who drafted Japan’s post-war charter that is still in force and has never been amended. Her memory lives on with Japan’s feminists, who often refer to her handiwork as “Beate’s Gift.”

The document is best known for its famous war-renouncing Article 9, but even more far reaching in consequence and impact on daily lives of millions of Japanese women is Article 24, which reads: 

“Marriage shall be based only on the mutual consent of both sexes, and it shall be maintained through mutual cooperation with equal rights of the husband and wife as a basis. With regard to the choice of spouse, property rights, inheritance, choice of domicile and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of the individual dignity and essential equality of the sexes.” 

Gordon was only 22 when she joined Gen. Douglas MacArthur’s staff in Tokyo as a translator. The daughter of Russian-Jewish émigrés, she had lived in Japan in the years before the war. She recounts that she was motivated in part to write the equal rights article from memories of watching women walking behind their husbands in public. At school in the U.S. when hostilities began, she quickly returned to Japan after the surrender, partly to find her parents, who had been interned, and to take part in the great adventure of transforming Japan. 

MacArthur at the time was unhappy with the Japanese politicians’ efforts to write a new constitution. The drafts he saw to replace the 1889 Meiji Constitution did not go far enough, in his opinion, in turning the role of the emperor into a constitutional monarch. In frustration, he ordered his staff to write an entirely new document.

MacArthur’s legal adviser, Courtney Whitney, corralled a couple dozen members of the staff, Gordon included, and said, “Ladies and gentlemen, you are now a constitutional assembly, and you are now to write a new draft of the Japanese constitution.” They had nine days in which to do it. 

Gordon was assigned the task of writing the portions dealing with women’s rights. It wasn’t hard to improve on the Meiji Constitution, which reflected the prevailing Confucian concept of the role of women as subordinate to men, especially husbands and before them fathers. The 1889 document contained language such as this: “cripples, the disabled and wives cannot undertake any legal actions.” 

Gordon wrote draft after draft, many of them going beyond strictly women’s rights to encompass, for example, legal rights for children born out of wedlock. Many provisions were thrown out by her superiors, who argued that they could be addressed later as amendments to the Civil Code. She argued that the conservative men who wrote Japan’s laws would not amend the Civil Code in that manner, and 60 years later she proved prescient. 

Very few liberalizing changes have been made in the ensuing years. Even today it is a matter of contention in Japan whether a married woman can keep and use her maiden name. The current law stipulates that any married couple must use the same name (it can be the wife’s family name, but it must be the same).

Article 24 was resisted by Japanese government ministers and politicians, who argued, accurately enough at the time, that it did not fit Japanese culture and history. These objections were overruled by the American occupiers, and the Diet ordered to pass it along with the other measures in the document, which it did in late 1946 with the charter going into effect in 1947.

One gets the impression that Article 24 was included in the constitution mainly because Gordon made a pest of herself, and the group was under severe time constraints. In her memoir, she notes that Lt. Col. Charles A. Kadesaw, who headed the drafting team, told her, “My God, you’ve given Japanese women more rights than they have in the U.S. constitution.” To which she replied, “That’s not very difficult to do because women are not mentioned in the [U.S.] constitution.”

Many traditionalists, mostly male, blame the “American-imposed” Article 24, not to mention other portions of the document, for all kinds of social ills in modern Japan, everything from the plummeting birth rates to bullying in the school yard.

As recently as 2004, a constitutional panel of the then-ruling Liberal Democratic Party denounced the article as “promoting egotism in post-war Japan” presumably as opposed to the purity of purpose and self-sacrifice that they think characterized Japan during the conflict and in years past. 

With its landslide victory in the Dec. 16 general election, conservatives have the votes, at least in the lower house, to propose amendments and changes in the constitution, and they have indicated they will do just that, starting with weakening the constitutional barriers that make it difficult to amend the charter. 

They would likely be aided by the opposition Japan Restoration Party, which sees things eye-to-eye with the LDP on constitutional issues and is currently led by a man who says he would have ditched the constitution as soon as Japan regained sovereignty in 1952.

It has often been said that of the many reforms undertaken by the U.S. occupation of Japan after the war, the most lasting was the emancipation of women, exemplified by Article 24 and another provision that gave women the vote. Prior to 1947 women were not only denied the franchise but were prohibited from joining political parties or even taking part in politics.

In April, 1946, even before Japan’s new constitution went into effect, women voted in the first post-war election to the lower house of the Diet. They returned an impressive number of women members, about 8 percent of the total membership. Japan seemed on its way. 

Yet this figure was not exceeded until the election of 2005, nearly 60 years later when a number of “Koizumi’s daughters,” named after the former premier Junichiro Koizumi, were elected in the LDP landslide that year. Japan continues to rank low among international legislative bodies in the number of women parliamentarians. The Dec. 16 polls did not change that.

Over the years little progress has been made in women’s rights. In 1985 the Diet passed the Equal Employment Opportunity Act, which improved the working conditions for significant numbers of women entering the workforce. And it wasn’t until 1999 that Japan even legalized oral contraceptives. Before that it shared with North Korea the dubious distinction of being the only two countries to proscribe the sale of oral contraceptives.

Finally, Japan declined to ratify the U.N. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on the grounds that it would interfere with Japanese traditions and customs, specifically the requirement that married couples use only one name. Even the power of Article 24 still has its limits on a nation predisposed to resist change.