On June 16 the first petty bench of the Supreme Court rejected a lawsuit brought by a business in the Kansai region against the government for denying it COVID-19 cash grants, which were distributed to companies during the pandemic so that they wouldn’t go out of business and their workers could keep their jobs while maintaining a decent living. The plaintiff is a “delivery health” company, which dispatches workers, invariably women, to places designated by clients in order to provide some kind of sexual gratification that does not involve penetration, since that would qualify as prostitution, which is illegal. 

In an interview with the legal affairs website Bengoshidotcom News, the plaintiff’s lawyer, Yusuke Taira, said the Supreme Court “ignored the importance of the COVID grants and clearly discriminated against the workers represented by the suit because they were in the sex trade.” And while the Supreme Court’s ruling had been expected, as discussed in the Mainichi Shimbun on May 27, the majority opinion on the case was not. Taira said the court used terminology that has never been used in such a case or when discussing the legality of sex-oriented services. In their opinion, the majority of justices stated that the nature of the work involved—essentially touching customers in accordance with the customers’ demands—automatically “did damage to the workers’ dignity.” 

Taira said this finding made no sense, and wondered how it could be used to justify a legal decision. The defendant, meaning the Japanese government, had never mentioned the workers’ “dignity.” Instead, it claimed that sex work “contradicts the sexual moral standards shared by the majority of citizens” and so it was “inappropriate” to support such businesses with public funds, without providing empirical proof of such a claim. As a matter of fact, Taira cited a survey used in one of the lower court trials that found the majority of respondents said it was OK to give COVID grants to sex workers. Nevertheless, the lower courts found the government’s exclusion reasonable and thus it did not qualify as discrimination. 

So why did the Supreme Court mention “dignity” in their opinion? Taira surmised that the court, knowing it was expected to provide the last word in ruling for the government, had to create a legal philosophy out of thin air. To say that the government did not discriminate against the plaintiff was obviously false—what they did was the definition of discrimination, since they did not treat the delivery health company the same way they treated other companies. Because the plaintiff is allowed to carry out business activities, it means its operations are legal, regardless of what the public may think. By inserting the workers’ “dignity” into the equation, the court seems to be saying that sex workers forfeit their right to be seen as workers in the conventional sense by willingly taking money in exchange for providing sexual gratification. 

The dissenting opinion in the case was written by the chief justice, Mitsuko Miyakawa, a woman, who said that while she agreed that delivery health services are not necessarily “wholesome,” such an impression has no bearing on the legal ramifications of the case. The plaintiff was denied COVID grants due to blatant discrimination, and that approach is legally “improper.”

Taira went on to say that the Supreme Court’s decision will have a harmful effect on sex workers, since it sets a precedent for discrimination that could further lead to discrimination against other industries that, while legal, tend to be associated with practices that have a negative public image, like pachinko. 

In fact, Taira said that it was the court’s majority opinion that actually “damaged the workers’ dignity” by denying that the government had discriminated against them. The opinion was based solely on a feeling of disgust at the work these people did, but it is not the court’s job to interpret public sentiment or to reach a decision based on its own visceral reaction to the particulars of a case. There is an argument to be made that sex workers are often exploited unfairly and even dangerously, but that was not the issue at hand—for what it’s worth, the owner of the business that filed the suit against the government is a woman. The judiciary is charged with carrying out the law as put forth by the constitution and relevant legislation. It is not a moral arbiter of taste.