[Feature: Disability and Society] A Blind Lawyer Speaks on the Act on the Elimination of Discrimination against Persons with Disabilities

2018/12/05

It has been 11 years since I became a lawyer, and time has flown by.

During this time, I have been involved in over 400 consultations and cases across civil and criminal law, and I have gained a certain level of confidence in my work. However, each case always contains its own unique new problems, and no matter how much experience I gain, I never truly "get used to" the work of a lawyer.

First, I would like to talk about the creative ways I, as a blind lawyer, perform my daily duties.

One of the indispensable tools for my current work is PC screen-reading software. Using this, I read (listen to) documents such as complaints that my assistant has digitized using a scanner, and I conduct research on judicial precedents and draft documents. Occasionally, when I let other lawyers or staff listen to the audio from the reading software, they are often surprised by its speed.

Support from the dedicated assistant provided by the office is also essential to my work. For example, they handle desk work such as converting printed documents into text data that I can read (listen to) using a scanner, or explaining charts, graphs, and photos that are difficult to digitize. They also support my work in various other situations, from accompanying me to interviews and trials in criminal cases to helping with research for reference materials. Their performance is truly versatile and tireless.

Currently, many of the cases I handle are not without difficulty and involve significant mental pressure.

However, it is also true that I feel a sense of reward and fulfillment in my daily work. This is likely because I am now able to embody, in my own way through my work, the feelings I had when I first admired the profession of a lawyer and decided to pursue that path myself.

I lost my sight around the 6th grade of elementary school due to congenital glaucoma. Being at a sensitive age, I struggled for a while afterward with a strong inferiority complex regarding my disability and went through a period where I could not hold onto hope for the future.

However, when I was in junior high school, I happened to pick up a book titled "Butsukatte Butsukatte" (Clashing and Clashing) written by Yoshiki Takeshita, the first person in Japan to pass the bar exam using Braille. This was a turning point for me.

The image of Mr. Takeshita depicted in the book gave hope to me—someone who felt that losing my sight meant losing my potential—that no matter how difficult the situation, it is possible to carve out one's own path as long as one does not give up. It also gave me the goal of wanting to become a lawyer myself someday.

Many people come to my office for consultation because they feel a sense of difficulty living in current society for various reasons and have lost hope. Some are habitual suicide attempters, and it is not uncommon for someone to say during a consultation, "I just want to die already, Counselor." It is by no means easy, but for me, the true essence of being a lawyer is to use my legal knowledge and experience to lighten the burden of such people, even if only a little.

Sometimes, after a case has settled down, someone might say, "Meeting someone like you made me want to try my best once more," or I might receive a letter from a man in prison saying, "Since you were so helpful to me, I decided to do Braille transcription as part of my prison work." At such times, I feel a little happy, thinking that I might have been able to hand over the hope I received from Mr. Takeshita's book in a different form.

Next, I would like to talk a little about my hobbies. I love traveling abroad and have visited about 12 countries so far, including Europe, the Americas, Asia, Africa, and the Middle East.

Traveling abroad makes me realize once again that the barrier-free accessibility of Japan's transportation and public facilities is very advanced by global standards. For example, in almost every city I have traveled to, equipment to help visually impaired people walk, such as acoustic signals and Braille blocks, was almost non-existent, with a few exceptions like the West Coast of the United States.

While I think it must be very difficult for visually impaired people to go out alone in such cities, I am also often surprised by how low people's "barriers of the heart" are abroad.

I once went skydiving in Guam. When I applied at the reception desk, my heart was pounding as I wondered if a totally blind person could really do it, but I received a cheerful reply: "No problem! Everyone with disabilities is jumping too." It was as if to say that even people with disabilities enjoy "dangerous play."

Also, this happened at a hotel in Hamburg. The shapes of the bottles for shampoo and conditioner were all the same, so I couldn't distinguish them by touch. When I called the front desk for help, a male housekeeper came by shortly after and said, "I've put a rubber band on the bath gel, a large clip on the shampoo, and a small clip on the conditioner. How is this?" He then took my hand and let me confirm each bottle.

In Japan, however, I am often troubled by these "barriers of the heart." I was once refused an apartment rental on the grounds that "it would be dangerous if a fire broke out," and when I tried to enter a coffee shop with my wife, who uses a guide dog, we were told, "Even if it is a guide dog, you cannot enter with a dog," forcing us to drink "bitter tears" instead of coffee.

In April 2016, an important law was enacted to change the lives of people with disabilities in Japan. That is the "Act on the Promotion of Elimination of Discrimination based on Disability," commonly known as the "Act on the Elimination of Discrimination against Persons with Disabilities." Below, focusing on the introduction of this act, I would like to consider what kind of society is one where people with and without disabilities live together.

(1) "Everyone is different, and everyone is good"

In many laws, the beginning describes why the law was made and what its purpose is. Article 1 of the Act on the Elimination of Discrimination against Persons with Disabilities also states: "By promoting the elimination of discrimination on the basis of disability... to contribute to the realization of a society where all citizens coexist while respecting each other's character and individuality without being separated by the presence or absence of disability."

Legal wording is often difficult to understand and usually just gives you a headache, but Article 1 of this act is quite a fine piece of writing that warms the heart. It reminds me of that famous poem by Misuzu Kaneko: "The bell, the bird, and then me; everyone is different, and everyone is good."

(2) Two Pillars for Eliminating Discrimination

As for the methods to eliminate discrimination, two major pillars are presented.

The first pillar is to prohibit administrative organs, such as the national government, and private business operators from engaging in unfair discriminatory treatment of persons with disabilities. The second pillar is to require administrative organs (as a legal obligation) and private business operators (as an obligation to make efforts) to provide "reasonable accommodation" to persons with disabilities. I will explain each pillar below.

(3) Prohibition of Unfair Discriminatory Treatment

The Act on the Elimination of Discrimination against Persons with Disabilities targets administrative organs and private business operators and prohibits "unfair discriminatory treatment compared to persons without disabilities on the basis of disability" (Article 7, Paragraph 1 and Article 8, Paragraph 1 of the Act).

According to the basic policy shown by the Cabinet Office, unfair discriminatory treatment against persons with disabilities refers to infringing on the rights and interests of persons with disabilities without "justifiable grounds" by (1) refusing to provide goods, services, or various opportunities on the basis of disability, (2) limiting the location or time slot for provision, or (3) imposing conditions that are not imposed on persons without disabilities.

The key point is "justifiable grounds." Even if a person with a disability is treated differently or refused service, it does not constitute unfair discriminatory treatment if there are "justifiable grounds" for that distinction or refusal. However, if the distinction or refusal occurs without "justifiable grounds," it is considered prohibited unfair discriminatory treatment.

So, when can it be said that there are "justifiable grounds"? According to the basic policy, "justifiable grounds" exist when the purpose is objectively legitimate and the distinction or refusal is unavoidable in light of that purpose. In other words, distinguishing persons with disabilities from those without or refusing service based on prejudice or assumptions is a violation of the law, but such treatment is permitted if anyone would agree that the distinction or refusal is unavoidable.

For example, regarding myself, as mentioned earlier, I was refused an apartment rental because "it would be dangerous if a fire broke out," and I was refused entry to a coffee shop with my wife and her guide dog because "guide dogs are not allowed."

I believe the background for such distinctions and refusals is the awareness that "a visually impaired person might cause a fire if they use a gas range" or "it must be a hygiene problem if a guide dog enters a shop." However, in reality, there is no objective data showing that visually impaired people have a higher risk of causing fires than sighted people, and guide dogs are kept clean by their users' constant care—sometimes they are even more hygienic than some humans. Therefore, since there are no "justifiable grounds" for such distinctions or refusals, they constitute unfair discriminatory treatment against persons with disabilities. The Act on the Elimination of Discrimination against Persons with Disabilities stipulates that one must not distinguish persons with disabilities or refuse services based on such assumptions or prejudices.

However, when distinguishing or refusing persons with disabilities, there are cases where people do not realize that their actions are based on assumptions or prejudice. What becomes important is the dialogue between persons with disabilities and persons without disabilities. Persons with disabilities must make persistent efforts to communicate what they can and cannot do, while persons without disabilities may need to use dialogue to reconsider whether there are "barriers" within their own hearts.

(4) Obligation to Provide Reasonable Accommodation

As another pillar of measures to eliminate discrimination, the Act on the Elimination of Discrimination against Persons with Disabilities stipulates that administrative organs and private business operators should provide reasonable accommodation in response to requests from persons with disabilities (Article 7, Paragraph 2 and Article 8, Paragraph 2 of the Act). Reasonable accommodation here refers to assistance, improvement of facilities, provision of auxiliary means, and changes to rules carried out to ensure substantive equality for persons with disabilities, provided that such provision does not impose an undue burden. For example, the Cabinet Office's basic policy lists the following as examples of reasonable accommodation:

1. Consideration for the physical environment, such as providing portable ramps over steps for wheelchair users or picking up and handing over products displayed in high places.

2. Consideration for communication, such as using written communication, reading aloud, sign language, or explaining using easy-to-understand expressions.

3. Flexible changes to rules and practices, such as adjusting break times according to the characteristics of the disability.

Since reasonable accommodation is a new concept, many people might still find it confusing. Therefore, I will explain reasonable accommodation a bit more.

First, let's think about various types of consideration within society.

In this society, many considerations are already in place so that people are not inconvenienced by things that most people cannot do. For example, many Japanese people cannot understand an English speech. Therefore, it is taken for granted that English interpreters are provided at international conferences and the like.

However, while consideration is naturally provided when there are many "people who cannot do it," in current society, consideration is not naturally provided when there are few "people who cannot do it." In the previous example, even if English interpreters are provided at a conference, it is not common for sign language interpreters to be provided for hearing-impaired people.

In this way, when consideration is not currently provided naturally in society because there are few "people who cannot do it," reasonable accommodation is when society provides consideration in response to a request from a person with a disability who needs it, so that even a person with a disability can participate in society equally with those without disabilities.

Next, I will explain the relationship between reasonable accommodation and barrier-free accessibility in public transportation and other areas.

Barrier-free initiatives, such as installing elevators and Braille blocks in public transportation like stations and public facilities like hotels and theaters, are carried out to improve convenience for an unspecified large number of persons with disabilities. Within the Act on the Elimination of Discrimination against Persons with Disabilities, this is positioned as "prior improvement measures."

Reasonable accommodation is what is provided based on the request of an individual person with a disability to remove the inconveniences that still remain even after conditions have been prepared as much as possible through these barrier-free efforts.

In this way, to remove the barriers standing in the way of persons with disabilities, both barrier-free initiatives to improve convenience for an unspecified large number of persons with disabilities and reasonable accommodation, which is detailed consideration tailored to individual needs, are indispensable. They are, so to speak, two wheels of a cart.

I believe that by making reasonable accommodation mandatory for administrative organs and private business operators, a common foundation has been created for mutual dialogue between persons with and without disabilities regarding methods to solve the difficulties faced by persons with disabilities.

I hope that from now on, constructive dialogue will be born between persons with and without disabilities everywhere in society, and that within that dialogue, methods for changing society will be discovered. I hope Japanese society moves in that direction.

When I was a child, I used to play a game with friends where we would start digging holes from both ends of a sand pile to make a small tunnel meet in the middle.

Society will not change immediately just because the Act on the Elimination of Discrimination against Persons with Disabilities was created.

However, there is no doubt that we now have the tools to dig holes through the various barriers existing in society from both sides—those with and without disabilities—through the method of dialogue.

There will likely be various frictions at first. But surely, a new horizon never seen before must be opening up on the other side of the tunnel. First, it begins with persons with and without disabilities approaching each other step by step through dialogue.

By the way, when I think about the social participation of persons with disabilities, I think of Major League Baseball. Until not so long ago, it was thought that Japanese players could not compete in the Major Leagues. However, after pitcher Hideo Nomo challenged the Majors in 1995 and succeeded, Japanese players began to enter one after another, and now many players, such as Shohei Ohtani and Masahiro Tanaka, have become the core of their teams.

In truth, the ability of Japanese players might have reached that level long before pitcher Nomo went. But it didn't happen because most people didn't think so. I feel that the relationship between persons without disabilities and persons with disabilities is like the Major Leagues and the Japanese baseball world before pitcher Nomo went to the U.S.; those without disabilities do not yet well understand the abilities of persons with disabilities, and persons with disabilities themselves have come to think they cannot compete in the "Majors" with their own abilities.

Therefore, I want those without disabilities to give chances to challengers with disabilities, and I think it is important for persons with disabilities to have the courage to take a step forward. People inevitably get caught up in the magnitude of what they have lost and tend to forget how many possibilities still remain at hand. But if those possibilities can be made to bloom, that person themselves will become a precedent, and society's awareness of persons with disabilities should change.

I would like to end this essay with the hope that in the near future, a day will come when persons with and without disabilities can play together with all their might on the same field of "society," while challenging and improving each other.