Japanese state sued in lawsuit seeking to stop judges policing clothing

Ken Suzuki has dedicated his life to fighting for LGBTQ+ rights, but his latest battle isn't a struggle for marriage equality or anti-discrimination laws.

It centres on something smaller, more pedestrian, but arguably as important — socks.

For years, Mr Suzuki has proudly worn a pair of white, crew-cut socks with rainbow stripes to "raise visibility for the LGBTQ+ community".

But in June 2023, when he tried to enter the Fukuoka District Court to witness the verdict of a marriage equality lawsuit, an official allegedly would not let him in unless he concealed the rainbow pattern.

"I was appalled," Mr Suzuki said.

Marriage, spousal benefits and adoption remain out of reach for Japan's queer community, with the country's conservative government steadfast in its opposition to LGBTQI+ rights.

Mr Suzuki believes the judiciary must act when politicians "refuse to take action", but in this instance, the order against his socks was "clearly an illegal measure" that violated the principle of an open trial.

And while he reluctantly folded his socks so he would not miss the verdict, Mr Suzuki would not forget the incident.

"Regulating even things like socks is the behaviour of an authoritarian state," he said.

"It is completely inappropriate for Japan."

Questions for court in death row debacle

Mr Suzuki is one of three plaintiffs behind a lawsuit challenging what Japanese judges can demand under the guise of maintaining "order in the court".

The two others allegedly faced similar policing of their clothing during proceedings for one of the most controversial cases in Japanese history — the wrongful conviction of Iwao Hakamada.

The former professional boxer spent almost five decades on death row after being falsely accused of murdering his boss, the boss's wife and children, and setting their house on fire in 1968.

Mr Hakamada had long maintained his innocence, arguing he was forced to confess and that police had tampered with evidence.

The founder of the Hakamada's Supporters Club, Kazuto Shimizu, had been championing his cause since 2008.

But when Mr Shimizu tried to watch a hearing for Mr Hakamada's retrial in April 2024, court staff allegedly would not let him in while he was wearing a pin and hoodie with Mr Hakamada's name on it.

Defence lawyer Hideyo Ogawa alleged he was also ordered to remove his pin, a demand he complied with at subsequent hearings.

While Mr Hakamada was acquitted in September, the debate over what clothing is allowed inside a Japanese courtroom remains unresolved.

How will the lawsuit be argued?

Public interest litigation group LEDGE has used these three three incidents as the basis of a lawsuit against the state, with the plaintiffs seeking damages of 3.3 million yen ($33,000).

Their case hinges on an article in Japan's Court Act that gives judges the power to make orders "necessary to the maintenance of order in the court", including by removing people interfering with proceedings or behaving improperly.

Lawyer Yasutaka Mizuno said preventing spectators from performing actions that would "apply psychological pressure on those involved in the case" was necessary to maintain trust in the courts.

But he said the incidents in the lawsuit failed to meet the conditions of the court act.

"In situations like the present case, where there is no conceivable way in which socks, badges, or similar items could interfere with the proceedings, restricting them does in fact undermine trust in the courts," Mr Mizuno said.

Mr Mizumo also noted other instances "where rainbow-coloured accessories have been regulated" and "clothing with specific messages or badges supporting particular movements" had been restricted.

"If the excessive use of courthouse police powers, which many would see as unreasonable, becomes widespread, it could lead to citizens distancing themselves from the judiciary," she said.

The embassy of Japan in Australia has been contacted for comment.

The 1980s battle to open up the courts

Courtrooms across the world usually operate under a series of legislated rules and expectations of etiquette.

But some of Japan's courtroom conventions have long concerned judicial transparency advocates.

In the 1980s, former Meiji University law professor Lawrence Repeta challenged rules preventing spectators from taking notes inside the courtroom.

Professor Repeta said it was "fundamental" that people living in a constitutional democracy had "as much knowledge as possible" about the operation of the courts.

While Japan's Supreme Court overturned the note-taking restrictions for most cases in 1989, Professor Repeta said there had been little other progress in expanding the openness of trials.

In Australia, the public can watch most open trials. In Japan, however, they must enter a ballot to reserve one of the limited number of seats available to spectators.

Professor Repeta said once they are in court, reporters and spectators generally cannot access court records as they are usually closed to the public.

"Often much of the evidence and argument is made in documentary form, and by sitting in the spectators' bench, you can't see the documents," he said.

Melbourne Law School's associate professor Peter Rush said the note-taking case had played a key role in "opening up" Japanese courts.

"The availability of court transcripts to the public is almost non-existent," he said.

"Taking notes is probably one of the primary ways in Japan that people find out what's actually happening."

Reforms to courtroom conventions

Alongside litigation forcing change, Japan has introduced reforms to increase public participation in the justice system, such as the introduction of "lay judges" in 2009.

Under this system, six citizen judges sit alongside six professional judges to help determine guilt and the punishment for serious criminal offences such as murder.

Japan has also established a legal support centre, introduced a new legal education system and worked to expand the number of lawyers.

Whatever the result of this latest challenge to Japan's courtroom status quo, one thing is unlikely to change.

"A courtroom, in order to have authority, needs to be calm, efficient, effective and fair," Dr Rush said.