Report on Publicly Invited Research

（Publicly Invited Research 2001-2002）
Gender Equality in the Decision-Making Processes of the National and Local Governments
- Positive Action in the World and Practical Challenges Facing Japan -
Representative for research Miyoko TSUJIMURA (Professor, Tohoku University Graduate School of Law)
Yasue NUKATSUKA (Professor, Faculty of Law, Kanto Gakuin University) Hiroyuki TOSA (Professor, Tohoku University Graduate School of Law) Hajime YAMAMOTO (Professor, Tohoku University Graduate School of Law) Osamu TAMURA (Associate Professor, Faculty of Administration and Social Sciences, Fukushima University)
Akio NAKABAYASHI (Assistant, Tohoku University Graduate School of Law) Mitsuko FUJINO (Professor, Fukushima Medical University) Hideaki FUKUOKA (Professor, Faculty of Law, Matsuyama University) Noriko OOFUJI (Associate Professor, Faculty of Political Science & Economics, Seigakuin University) Hiroshi NAKASATOMI (Associate Professor, Faculty of Administration and SocialSciences, Fukushima University)

I. Purpose and Scope of Researchh

In Japan, a number of initiatives have been taken by the national and local governments to promote gender equality since the enactment of the Basic Law for a Gender-Equal Society in 1999. Women's involvement in decision-making processes concerning measures and policies, however, is far from sufficient compared with other countries (for example, in 2002, the percentage of women Representatives is 7.1%, which ranks 121st in the world). In the area of Positive Action, initiatives that have significantly contributed to the improvement of gender equality have been adopted in the United States and Europe, but few concrete measures have been implemented in Japan.

This research, with the theme of "Gender Equality in the Decision-Making Processes of the National and Local Governments - Positive Action in the World and Practical Challenges Facing Japan," aims to "identify theoretical and practical challenges of gender equality in decision-making processes by analyzing legal structures and theories in the United States and Europe in order to recommend concrete strategies to promote gender equality by the national and local governments, communities, universities, and corporations in Japan, as well as the empowerment of women."

In many European countries and in the United States, recent Positive Action measures have substantially contributed to the improvement of women’s participation in decision-making processes. Comprehensive research, including extensive surveys of these countries to identify theoretical and practical issues, is urgently needed to promote women's involvement in political decision-making in Japan.

Part I looks at positive action measures implemented by the United States, European countries, and international organizations such as the United Nations and the European Union, and indicates some of the issues to be addressed (as for France, measures including social policies are also reviewed in detail). In Part II, Japan’s gender equality measures and ordinances are analyzed and compared to study characteristics and challenges of gender equality promotion measures of major prefectures. Based on the research results detailed in Part II, specific recommendations are given in Part III. Although recommendations are primarily focused on politics/election systems, employment/labor, and social security because researchers specialize in constitutional law and international politics, these recommendations indicate an important direction to consider what kind of positive action is necessary and appropriate to promote gender equality. It is our hope that this study will contribute to the development of future policies for gender equality.

II. Research Results on Positive Action in Foreign Countries and Recommendations

1"Introduction - Issues Surrounding Gender Equality and Positive Action"(Miyoko TSUJIMURA)
Outlining trends of positive action initiatives in foreign countries and the present situation in Japan, the author stresses the need for extensive surveys and research, and the importance of basic theoretical studies, including the concept of positive action and conflicts with the equality principle in the Japanese Constitution.

2 "Gender-based Positive Action Measures by an International Regime - focusing on the World Bank" (Hiroyuki TOSA)
This study discusses the possibility of implementation of positive action initiatives by international economic organizations such as the World Bank, in the context of the adoption of the international convention on human rights. The author describes the World Bank’s policy, saying, “positive action measures to promote gender equality are necessary in order to enhance the Bank’s development effectiveness” will possibly have a great influence on future approaches of international regimes.

3 "Gender Equality Measures and Positive Action in the European Union" (Noriko OOFUJI)
This study examines the process of how EC/EU directives and judicial precedents of the European Court of Justice contributed to the advancement of positive action, and clarifies the theories behind such judicial precedents. In these theories, when men and women are considered having equal qualifications, giving priority to employment of candidates of the under-represented sex is in conformity with the principle of equal opportunity. On the decision of recruitment, however, “objective evaluation” must be made, and giving automatic, absolute, and unconditional priority to the under-represented sex is considered to be illegal. A quota system can be legal as long as it does not mandate a strict and automatic fixed number.

4 (1) "Women's Participation in Political Decision-making Processes under the French 5th Republic" (Hajime YAMAMOTO)
Outlining measures to promote women’s political participation under the French 5th Republic, the author reveals that political leaders, including presidents, exercised great influence on these measures.

2) "Present Situation of Women's Political Participation and Challenges in France - the Development of the Parite Law (Yasue NUKATSUKA)
This study examines the content of the Parite Law (promotion of gender equality) introduced by amending the constitution, and its problems in the context of constitutional theory. The author argues that the introduction of mandatory parity or a quota system to increase women’s political participation can be interpreted as theoretically unconstitutional (in light of universalism and indivisibility of popular sovereignty). Nevertheless, the author suggests that these mechanisms, which function on the premise of political parties, are effective in encouraging political parties’ awareness of gender equality and promoting women’s political participation through “non” political groups (for example, the formation and support of women’s networks and “promotion of awareness raising”).

(3) "French Labor Code/Civil Service Code and Gender Equality" (Hideaki FUKUOKA)
Reviewing the Law of Equal Employment Opportunity between Men and Women, enacted on May 9, 2001, the author points out that France has a legal system promoting gender equality in employment, which helped introduce the Parite Law, and the important role of gender equality initiatives within labor unions.

(4) "Socialization of Child Care and Nursing in France" (Mitsuko FUJINO)
Recognizing the necessity for the development of an institutional framework enabling the whole society to shoulder child care and nursing, the author examines child-rearing support systems, including child care centers, children’s allowances, and nursing leave in France. She maintains that Japan also needs to build appropriate systems to socialize child care and nursing.

(5) "Measures to Promote Men's Participation in Housework and Child-rearing - Focusing on PaternitVy Leave" (Osamu TAMURA)
The author argues that gender equality initiatives for women should be coupled with measures to get fathers more involved in daily domestic life. Focusing on the introduction of paternity leave, working time reduction/work sharing, and fathers' participation in child-rearing after divorce, he suggests that "parity should be introduced into family life, too."

The above five studies on gender equality initiatives in France demonstrate that political gender equality cannot be achieved without adequate legal systems to promote gender equality in family life as well as in employment and society. This is an important suggestion for Japan.

5 "Gender Equality in UK Politics" (Miyoko TSUJIMURA)
The study looks at a series of measures implemented under the Labour Party that helped double the number of female MPs, the February 26, 2002 enactment of the Anti-Sex Discrimination Law (public office election candidates) following litigation over all-women shortlists, and other positive action initiatives including twinning and zipping. Based on these analyses, the author recommends that Japan implement systems compatible with the constitution, such as positive action initiatives led by political parties.

6 "Gender Equality in the Political Decision-making Processes in Germany" (Akio NAKABAYASHI)
This study discusses the quota system, one of the measures to promote women’s participation in political decision-making, which is adopted voluntarily by political parties for their own regulation, mainly from the constitutional perspective.

7 (1) "Development of Affirmative Action in the United States" (Hiroshi NAKASATOMI)
Through analysis of theories of judicial precedents regarding existing affirmative action, the study shows that affirmative-action legal cases have been increasingly attacked politically, judicially and socially, and clarifies the reasons behind these attacks. The author suggests that affirmative action’s objective, its function as temporary measure, and the basic conception of equality should be clarified in order to avoid unconstitutionality.

(2) "Affirmative Action in the Civil Service" (Akio NAKABAYASHI)
This study reviews the U.S. supreme court decision on the Johnson case, and recommends moderate affirmative action. The author explains that moderate affirmative action means that people in decision-making positions concerning recruitment and promotion prepare a screening list containing gender as a criterion. Introduction of such a standard in the employment process prevents "stigmatizing" women, he argues.

8 "Women's Political Participation and Positive Action in South Africa" (Hiroyuki TOSA)
This study describes how positive action initiatives are being implemented in South Africa and other third world countries, and stresses the importance of positive action voluntarily taken by political parties other than institutionalized legal systems and role played by NGOs.

III. Research on Gender Equality Measures in Japan and Recommendations

1 "Introduction ? Developments after the Basic Law for a Gender-Equal Society and Challenges",
2 "Enactment of Ordinances on Gender Equality" (Miyoko TSUJIMURA)
The author overviews initiatives by the national and local governments after the enactment of the Basic Law for a Gender-Equal Society, and recent developments. Overviewing the ordinances enacted, she points out their particular characteristics

3 "Gender Equality Promotion Measures by the Tokyo Metropolitan Government" (Miyoko TSUJIMURA)
While the author appreciates the prompt and extensive initiatives by the Tokyo Metropolitan Government, she raises questions about several issues, including gender concept defined in the preamble of the ordinance, the importance of the governor’s stance, and fiscal issues regarding the dissolution of the Tokyo Women’s Foundation. It is also pointed out that theorization is necessary to counter the backlash.

4 "Gender Equality Measures in Saitama Prefecture" (Noriko OOFUJI)
his study reveals outstanding points of Saitama Prefecture's ordinance such as its pioneering and advanced approach, the governor's proactive stance (including budgetary steps), and thorough collection/analysis of information and planning at sections related to prefectural government. The author looks at recent initiatives including:(1) appointment of staff in charge of gender equality promotion (from FY2002), (2) improvement of assessment methods for gender equality (from FY2003), and (3) preparation of a gender-equal expression guide (from the end of FY2002). The study also lists a number of achievements by Saitama prefecture such as(1) setting up of neutral and fair grievance machinery independent from administration (to make positive recommendations: for example, introduction of boy/girl mixed name lists and abolition of same-sex public schools), (2) support for lawsuits, and (3)③ establishment of the Saitama Prefecture Center for the Promotion of Gender Equality.

5 “Gender Equality Measures in Kanagawa Prefecture” (Yasue NUKATSUKA)
The author examines the significance of “obligation imposed on employers to report gender equality progress,” which is stipulated in the ordinance. The study explains that before imposing obligations there is an important preparatory process, such as coordination with women organizations’ and movements, and recommends cooperation between the administration and women’s organizations, administration’s initiative as coordinator, awareness raising in companies, conducting surveys on work environments, and assessment of effectiveness of the ordinance ((1) self-evaluation: disclosure of annual reports, (2) establishment of procedure to submit opinions and grievances, (3) evaluation by a third-party organization).

6 “Gender Equality Measures in Fukushima Prefecture” (Mitsuko FUJINO)
he author reviews the adoption of the Fukushima Gender Equality Plan, the establishment of the Fukushima Gender Equality Center, and issuance of the ordinance. Based on an examination of these measures, she points out the issues to be addressed in the ordinance (points to be improved drawing upon Saitama prefecture’s initiatives: for example, positive action measures, implementation of effective system for opinion submission, introduction of a third-party evaluation, etc.). In addition, the study recommends reexamination of target figures for the gender equality plan, promotion of gender equality by the prefectural government, implementation of a mandatory report and award systems targeting companies, and changing people’s way of thinking (through regular seminars for heads of municipalities and training for staff directly involved in work, and other approaches modeled after the Gender Equality Promoter System in Toyama Prefecture).

7 “Gender Equality Measures in Miyagi Prefecture” (Hajime YAMAMOTO)
Like Fukushima Prefecture, Miyagi Prefecture stipulates in its ordinance that “sufficient attention should be paid to information disclosed to the public” (Article 12 of the Miyagi ordinance, Article 8 of the Fukushima ordinance). The author argues that such a provision, which aggressively restricts freedom of expression, can be considered to be unconstitutional, and provision of “consultation and grievance machinery” in Miyagi ordinance is an effective measure (compared with the passivity of the Fukushima ordinance, stipulating only “processing of opinions from residents in the prefecture”).

8 “Gender Equality Measures in Toyama Prefecture” (Hideaki FUKUOKA)
Among features of Toyama’s gender equality measures, the author highlights two systems, namely the Gender Equality Promoter System and the Gender Equality Chief Officer System. In the first system, 570 men and women are selected from ordinary residents in the prefecture as gender equality promoters, given a two-year term and a wide range of training and seminars, which is proving very effective in terms of gender equality education. In the second system, executive-level businessmen are delegated as “Gender Equality Chief Officers” with a one-year term (can be reappointed) (14 people from 14 corporations within the prefecture were delegated in FY 2002). Each company participating in this initiative is certified as a “Gender Equality Promoting Company” and is publicized in recruiting activities by the prefectural government, which is also expected to have a positive effect on the companies themselves.
Aside from the above examples, 40 prefectures and 105 municipalities have issued gender equality ordinances (as of April 1, 2003), and many of them contain noteworthy advanced provisions. Although it is difficult to cover all ordinances, some of the more remarkable ones are overviewed in sections 1 and 2 in Part II as well as in References. On the contrary, local governments that are being left behind in issuing ordinances confront “backlash,” and are going to face an uphill struggle to implement such measures. One example is Utsunomiya city, which is bound by stereotypical concepts of gender differences. Even if excellent ordinances and plans are adopted, they are meaningless unless they are actually implemented. Now that most prefectures have issued ordinances, focus is shifting to progress of action plans.
With respect to the theme of this research, the theoretical challenge of positive action, it is necessary to continue to examine it from a legal perspective.

IV. Upon Completion of the Research

We have launched this research with the lofty aim of conducting a survey and a theoretical study of positive action initiatives throughout the world, and identifying the practical challenges facing Japanese local governments based on the survey results. Given the limited time, our research plan with themes covering both Japan and abroad hardly seemed viable. However, since many of my co-researchers have already done research in this area, we could manage to proceed with this research project as scheduled. In this research, most studies deal with the latest reforms of legal systems in different countries, which, I think, is valuable in terms of reference data. Although we initially planned to report also on countries in Asia, Oceania, and Scandinavia, we could only attach translations of reference information. As our research theme deals with future challenges facing Japan, we hope to supplement inadequate areas when we have the opportunity.
As more initiatives are implemented following the Basic Law for a Gender-Equal Society, introduction of positive action mechanisms and quota systems will soon become urgent concerns. It is very significant, therefore, that this theme was adopted by the Fukushima Gender Equality Center. All of us would like to express our deep gratitude to the related organizations in Fukushima Prefecture for giving us an opportunity to conduct our research. Also, we would like to take this occasion to express our appreciation to the policy staff at Tokyo and four prefectural government offices, which we visited to survey and compare local authorities’ gender equality policies, for kindly taking time out of their busy work schedules. Even though our research results may be insufficient, ten of us have devoted ourselves to attain the objectives of this research commissioned from Fukushima Prefecture. It is our sincere hope that this research will contribute to the promotion of gender equality and the empowerment of women in Japan.
(Miyoko TSUJIMURA)