*Traslated by google translate

　Introduction　

The Workmen's Accident Compensation Insurance Act (the Act) provides that when a worker dies in a work-related accident, a work-related accident survivor's compensation pension shall be paid to his/her family members and others who depended on the worker's income for their livelihood.

Husbands, wives, sons, and daughters who have lost their loved ones' lives due to overwork caused by long hours and excessive work.

The grief of bereaved families who have lost a loved one has nothing to do with gender.

However, the law that institutionalized survivor's pensions in 1965 made gender distinctions in who could receive survivor's pensions under the premise that "men are the breadwinners," and while there was no age requirement for the "wife" who lost her husband, it required that the "husband" who lost his wife be 55 years of age or older. In other words, even if a couple was making ends meet by combining their incomes, if they were under 55 years of age, the surviving "wife" would be paid a survivor's pension, but the "husband" would not.

Eligibility for Work-Related Survivors' Compensation Pension

▲ From Article 16-2 of the Workers' Accident Compensation Insurance Law and Article 43-1 of the Supplementary Provisions of the Workers' Accident Compensation Insurance Law. Both requirements are based on the premise that the person's livelihood depends on the income of the worker.

Article 14, paragraph 1 of the Constitution stipulates equality under the law and prohibits discriminatory treatment unless it is based on reasonable grounds appropriate to the nature of the matter.

Isn't it a violation of Article 14, paragraph 1 of the Constitution, which provides for equality under the law, to have the law create such a large disparity for the families of those who died from overwork solely on the basis of their gender? Furthermore, equality under the law is stipulated in Article 26 of the International Covenant on Civil and Political Rights, and the prohibition of gender-based discrimination is stipulated in Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women, and this also violates these.

Furthermore, the provision of pensions to wives, regardless of age, among those who "maintained their livelihood through the income of workers" is a law that was created on the premise that women, even if they were young and healthy, were full-time housewives whose livelihoods depended on their husbands' income. Even now, nearly 60 years after its establishment, maintaining this law is based on the premise that the income of a deceased working wife did not contribute much to supporting the family, even if both spouses were working, and it also discriminates against wives.

We believe that the law, which inflicts great disadvantages on the families of those who die from overwork based on their gender, is discriminatory against women and violates the Constitution and international law, and so we have decided to take the government to court.

　Overview of the case　

The plaintiff, Mr. I (pseudonym), has been raising three children together with his wife, both of whom work.

Mr. and Mrs. I shared the responsibility of making lunches for the children, taking them to and from school, cooking, cleaning, etc., but in September 2017, Mr. I's wife was transferred to a busier department and began working more overtime. As a result, Mr. I began doing most of the housework. Until then, Mr. I's wife had rarely complained about her job, but by April 2019, she was so busy that she was exhausted and started complaining, "I can't do this anymore."

Then, in June 2019, Mr. I's wife suffered a subarachnoid hemorrhage at a workplace social gathering and passed away.

Mr. I believed that his wife's death must have been the result of overwork, and on March 22, 2022, he filed a work-related accident claim with himself as the plaintiff.

However, the Labor Standards Bureau staff

① Mr. I was 49 years old at the time of his wife's death and was not eligible to receive survivor's pension, etc. ② Only the second son, who was under 18 years old at the time of his wife's death, is eligible to receive benefits.

I told him that.

As a result, Mr. I was forced to file a work-related accident claim with his second son as the sole claimant, and on March 1, 2023, his wife's death was recognized as a work-related accident.

However, one year later, in 2024, the second son turns 18 and his survivor's pension will be terminated. Despite losing an irreplaceable family member, Mr. I's family has received almost no survivor's pension.

▲Notice of non-payment of survivor's compensation pension received by Mr. I

Mr. and Mrs. I both worked and earned about the same annual income, so their household income was cut in half. However, at the time Mr. I's wife passed away, his eldest son and daughter were attending a private university, and his second son was in his third year of junior high school.

"Isn't it strange for the government to give different benefits depending on whether the husband or wife dies?"

"We are being told that women should enter society, but with outdated laws, children left behind will not be able to pursue their dreams. For the sake of the future, isn't it necessary to eliminate discrimination in eligibility for benefits?"

In today's world, where gender equality and gender equality are on the rise, there are more and more households where both spouses work and share the income, housework, and child-rearing responsibilities. Mr. I began to think that the legal provisions that assume the man is the breadwinner and takes care of the housewife and children are outdated and wrong, even though the number of dual-income households like hers continues to increase.

Mr. I then decided to file a lawsuit in court to appeal to society that the provisions of the Workers' Accident Compensation Insurance Act, which was enacted nearly 60 years ago, are discriminatory and violate the Constitution, which stipulates equality between men and women.

▲Asahi Shimbun morning edition, November 7, 2023

　Social significance　

In 2011, the suicide of a female junior high school teacher while employed was recognized as a work-related accident, and her husband filed a lawsuit challenging the constitutionality of the law that did not provide survivor pensions, as in this case. The Osaka District Court, the first instance ruling, ruled that the law was unconstitutional and invalid as it violated Article 14, paragraph 1 of the Constitution, but the Osaka High Court, the second instance ruling, found that the wife "generally has difficulty maintaining her livelihood independently" and found the law constitutional. The Supreme Court also upheld the Osaka High Court's ruling in 2017.

However, this ruling, which clearly represents discriminatory treatment based solely on gender and has no social validity whatsoever, cannot be allowed to stand as is. This is extremely important for eliminating gender discrimination in our country and for realizing gender equality in the workplace.

The fact that there is significant discrimination in the household income of a couple, including their children, depending on whether the father or the mother dies violates the respect for children's human rights and their right to an equal education, and can be considered a human rights violation against the surviving children.

Issues at issue　

The issue in this case was a workplace accident.

• If the husband dies, the wife can receive a survivor's pension if they are in a "living dependent relationship"
• If the wife dies, the husband cannot receive a survivor's pension unless he meets the following conditions in addition to being in a "living-support relationship": age requirement or certain disability requirement.

The question is whether this provision of the Workers' Accident Compensation Insurance Act violates Article 14, Paragraph 1 of the Constitution, which stipulates equality under the law and explicitly prohibits discrimination on the basis of "sex," Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women, and Article 26 of the International Covenant on Civil and Political Rights.

① The typical family model is a dual-income household in which both men and women contribute to supporting the family.

Since 1997, the number of dual-income households has exceeded the number of households with a full-time housewife. In 2010, the year before the Supreme Court ruled on this issue, there were 10.12 million dual-income households, while the number of households with a full-time housewife was only 7.97 million. More than 10 years later, in 2022, dual-income households have increased to 11.91 million, while the number of households with a full-time housewife has decreased to 4.3 million, making dual-income households the common family model.

② Comparison of the wage gap between men and women and the economic gap in survivor compensation arising from the district in question

If the average male wage in 2022 is 100, the female wage level is 75.7, which means that although there is still a gap, it is only 1.3 times. In addition, the wage gap between men and women is certainly being corrected. On the other hand, the amount of survivor's pension is 3.5 times higher if the claimant is a woman (wife) whose husband has died compared to a man (husband) whose wife has died. In light of this wage gap level, it cannot be said that there is a need to have an economic gap of 3.5 times between men and women in terms of survivor's compensation.

*In this case, a comparison was made between the lump sum the husband would receive if the wife died and the survivor's pension the wife would receive if the husband died, assuming she survives to the average life expectancy of a woman, age 87.

3) Changes that surviving spouses face after the death of a disaster victim

Surviving spouses face significant changes in both finances and household responsibilities after the death of their partner, and the burden is felt equally by men and women.

4) The enormous impact on the upbringing and future of surviving children

The current system, which restricts a father's ability to receive survivor's pensions when his mother dies, has a significant economic impact on the upbringing of children who grow up in single-parent families after losing their mother. It can also be seen as violating the "best interests of the child," an important fundamental principle of the Convention on the Rights of the Child.

Furthermore, in Japan, a legal amendment was made in 2010 to make child support allowances, which had previously only been paid to single-mother households, available to single-father households as well. When the bill for this amendment was submitted, it was stated that "support for low-income single-parent families is necessary regardless of whether the parent is male or female, and as a country striving for a society in which men and women participate equally, we should not allow this situation to continue."

Decades ago, in other countries - the United States in 1983, Germany in 1985, and the European Court of Human Rights in 2001 - laws that differentiated between men and women in terms of survivor's compensation were deemed to be in violation of the constitution or international law, and gender equality was achieved. The fact that the Convention on the Elimination of All Forms of Discrimination against Women and the International Covenant on Civil and Political Rights, to which Japan is a party, prohibit laws that differentiate the enjoyment of rights on the basis of gender as discriminatory also supports the fact that this law violates equality under the law.

　Use of funds　

• Costs for writing opinions by researchers and experts <br>In order to fight all the way to the Supreme Court and win a ruling that the law is unconstitutional, we need opinions from experts. We plan to have international law scholars, constitutional law scholars, social security law scholars, and other experts write opinions.
• Copying, communication, and transportation costs
• print fee

*If there is any money remaining after accounting for the above expenses, it will be used to cover attorney's fees.

Plaintiff’s thoughts

In my family, my husband and I shared the income, shared the housework, and shared the child-rearing and care of our children. I think that in my family, whether I, the husband, was absent or my wife was absent, the impact on the surviving spouse and family would be the same.

In today's world where men and women participate equally and gender equality is touted, I believe that there are more and more households like ours where both partners work and share the income, housework, and child-rearing responsibilities. In this situation, I think it is strange that the benefits provided by the government are different when the husband dies and when the wife dies. It is with these thoughts that I have decided to raise this issue.

I believe that there are many people out there who feel the same way, and I would be extremely grateful if you could agree with me and support me.

　Message from the lawyer in charge　

The courts, as guardians of the Constitution, should face up to the unconstitutionality of the gender discrimination in the Workers' Accident Compensation Insurance Act and, in light of modern society, which respects independent choice and is making greater strides toward gender equality, rule it unconstitutional.

In recent years, the Supreme Court has revised a Petty Bench ruling issued in 2019 regarding the requirement for surgery to change one's gender, taking into account changes in social conditions, and ruled it unconstitutional in 2022. A Petty Bench ruling was also issued in 2017 in this case, but our legal team is determined to have the Petty Bench ruling revised and win a ruling of unconstitutionality at the Supreme Court Grand Bench by carefully arguing for changes in social conditions, such as the working conditions of women and the current situation of full-time housewives.

We would be grateful for your support.

▲From the left, Attorney Nakanishi, Attorney Onoyama, Attorney Matsumaru, Attorney Kawato, Attorney Kanie

Introduction of the lawyer in charge

Hiroshi Kawato Tokyo Bar Association Kitaro Kanie Second Tokyo Bar Association Shizuka Onoyama Tokyo Bar Association Shotaro Nakanishi Tokyo Bar Association Tadashi Matsumaru Osaka Bar Association Akiko Narimi Miyazaki Bar Association

We belong to the National Liaison Conference of Lawyers for Death from Overwork, and are working on the issue of death from overwork, including certifying death or suicide from overwork as an industrial accident, providing relief to surviving families through lawsuits, and issuing opinions on the legal system, etc.