The Open Housing Cases (1995) — Discrimination and the Right to Housing

Introduction

The Open Housing Cases (Ōpun Hājingu Jiken) — a series of decisions culminating in the Osaka High Court judgment of July 11, 1995 — represent the most significant Japanese judicial pronouncement on discrimination against Burakumin (members of the historically discriminated community) and on the legal regulation of discriminatory housing practices. The cases addressed the practice of providing information about Burakumin neighbourhoods to real estate companies, enabling discrimination in housing sales and leases.

The cases are significant for establishing that discrimination by effect — conduct that has the effect of facilitating discrimination, even without explicit discriminatory intent — is unlawful, and for developing a framework for evaluating whether conduct constitutes illegal discrimination under Japanese law.

Background: Buraku Discrimination

Burakumin are members of a social group that has been subjected to systemic discrimination in Japan for centuries. Historically associated with occupations considered “impure” under the Buddhist and Shintō-based caste system (such as butchery, leather-working, and undertaking), Burakumin and their descendants continue to face discrimination in marriage, employment, education, and housing.

The extent of Buraku discrimination has been well documented. Burakumin communities — known as “dōwa chiku” (assimilation districts) — are concentrated in specific geographic areas, and knowledge of a person’s family origin or address can trigger discrimination. The practice of investigating whether a potential marriage partner, employee, or tenant is of Buraku origin is known as “chōsa” and has been the subject of legal and social reform efforts for decades.

The Open Housing Association

The Open Housing Association (Ōpun Hājingu Kyōkai) was an organisation that collected and disseminated information about Burakumin neighbourhoods. The Association provided real estate companies with maps and lists identifying Burakumin areas, enabling these companies to:

• Refuse to show properties in Burakumin areas to non-Buraku clients
• Refuse to sell or lease properties to Burakumin clients outside Burakumin areas
• Steer clients away from Burakumin neighbourhoods
• Apply different terms and conditions to Burakumin tenants and buyers

The plaintiffs — Burakumin residents and Buraku liberation activists — brought an action against the Open Housing Association and the real estate companies that used its services, claiming that the disclosure of Burakumin-related information constituted illegal discrimination and violated their rights to privacy and equal treatment.

The District Court Decision

The Osaka District Court (1994) found that the Open Housing Association’s activities constituted unlawful discrimination. The Court held:

First, the disclosure of Burakumin-related information that facilitated discrimination violated the plaintiffs’ right to respect for private life (puraibashī no kenri). The collection and dissemination of information identifying individuals as belonging to a historically discriminated group, where that information was used to discriminate against them, infringed their privacy rights.

Second, the conduct violated the plaintiffs’ right to equal treatment (Article 14 of the Constitution). The Court held that while Article 14 by its terms applies to state action, the constitutional value of equality should be respected in private conduct through the general clauses of the Civil Code, particularly Article 90 (public order and good morals).

Third, the Court held that the real estate companies that used the Association’s information were jointly liable with the Association for the discriminatory conduct.

The Osaka High Court Decision

The Osaka High Court (July 11, 1995) affirmed the District Court’s decision and provided a more developed framework for evaluating discrimination claims.

The Framework for Evaluating Discrimination

The High Court established a three-part framework for determining whether conduct constitutes illegal discrimination:

First, the court must determine whether the conduct is based on a prohibited ground of discrimination. Prohibited grounds include race, ethnicity, social origin, and other characteristics that are immutable or historically associated with systemic discrimination. The Court held that Buraku status — whether actual or imputed — is a prohibited ground.

Second, the court must determine whether the conduct has a discriminatory purpose or effect. The Court held that proof of discriminatory intent is not required; it is sufficient that the conduct has the effect of discriminating against members of a protected group. This “discrimination by effect” standard was a significant development in Japanese anti-discrimination law.

Third, the court must assess whether the conduct is reasonable and proportionate in light of the legitimate interests of the defendant. Where the defendant’s conduct has a discriminatory effect, the defendant may raise a defence by showing that the conduct was necessary to achieve a legitimate objective and that the discriminatory effect was proportionate to the objective. The burden of establishing this defence rests on the defendant.

Application of the Framework

Applying this framework to the Open Housing Association’s activities, the High Court held:

• The conduct was based on a prohibited ground (Buraku status)
• The conduct had a discriminatory effect (it facilitated housing discrimination against Burakumin)
• The Association had no legitimate interest in collecting and disseminating the information, and any interest it had was outweighed by the harm caused by the discrimination

The Recognition of “Substantive Equality”

The High Court’s decision is notable for its recognition of “substantive equality” (jitsushitsuteki byōdō) beyond formal equality. The Court held that Article 14 of the Constitution guarantees not merely formal equality — the equal application of laws — but substantive equality — the right to be free from discrimination in fact. This recognition implies a positive obligation on the state and on private actors to take steps to eliminate systemic discrimination.

The Significance of the Case

Burakumin Discrimination as Unlawful

The Open Housing Cases confirmed that Burakumin discrimination is unlawful under Japanese law, even in the absence of a specific statute prohibiting such discrimination. The cases established that the constitutional guarantee of equality, mediated through the general clauses of the Civil Code, prohibits discrimination against Burakumin in housing and other contexts.

Discrimination by Effect

The cases established the “discrimination by effect” standard in Japanese law. Previously, Japanese courts had generally required proof of discriminatory intent. The Open Housing Cases held that proof of discriminatory effect is sufficient, and that the defendant bears the burden of justifying the conduct that produces the discriminatory effect.

The Right to Privacy

The cases significantly developed the Japanese right to privacy. The Court’s holding that the collection and dissemination of Burakumin-related information for discriminatory purposes violates privacy rights established an important precedent for the protection of sensitive personal information.

The Impact on Legislation

The Open Housing Cases contributed to the enactment of the Act on the Promotion of the Elimination of Buraku Discrimination (Buraku Sabetsu no Kaishō no Suishin ni Kansuru Hōritsu) in 2016. The Act declares the government’s responsibility to eliminate Buraku discrimination, prohibits the collection and dissemination of Buraku-related information for discriminatory purposes, and establishes a framework for education, awareness-raising, and victim support.

The cases also influenced the enactment of the “Hate Speech” Law (2016), which prohibits discriminatory speech and conduct targeting racial and ethnic minorities, including Burakumin, through a combination of prohibitions, administrative guidance, and victim support measures.

The Buraku Liberation League’s Role

The Buraku Liberation League (BLL, formerly the Suiheisha) played a central role in the Open Housing litigation. The BLL provided legal and financial support to the plaintiffs, conducted research on discriminatory housing practices, and advocated for the recognition of Burakumin discrimination as unlawful. The BLL’s involvement in the case was part of a broader strategy of using litigation to achieve social change — a strategy that had previously succeeded in the Fujinbashi Bridge land dispute and other cases.

Conclusion

The Open Housing Cases represent a landmark in Japanese anti-discrimination law. The Osaka High Court’s framework for evaluating discrimination — requiring proof of discriminatory effect rather than intent, and imposing on the defendant the burden of justifying conduct that has a discriminatory effect — established a more robust standard for protecting members of historically discriminated groups. The cases confirmed that Burakumin discrimination is unlawful, developed the Japanese law of privacy, and contributed to the enactment of significant anti-discrimination legislation. The cases remain a powerful precedent for the use of litigation to address systemic discrimination in Japan.