The Unknown Content of the 'Women's Protective Provisions' That Were Supposed to 'Protect' Women

Before the Equal Employment Opportunity Law was enacted in 1986 (Showa 61), the 'Women's Protective Provisions' included in the Labor Standards Act played an extremely important role in regulating the working environment for women.

The Women's Protective Provisions were established in the name of 'justice' to safeguard the safety and health of female workers under the harsh working conditions of the pre-war era, but from a modern perspective, they contained many aspects that were incompatible with the principle of 'equality' and were instead perceived as gender discrimination.

In fact, the Women's Protective Provisions restricted women's career choices and played a role in reinforcing the prejudice that 'women are beings who should be protected' in the labor market.

In this article, we will delve into the details of the Women's Protective Provisions, which were eventually phased out following the enactment of the Equal Employment Opportunity Law, including their content, purpose, and the transition in how they came to be recognized as leading to gender discrimination from the perspective of modern gender equality.

Note that the transition leading up to the enactment of the Equal Employment Opportunity Law is described in detail in the article below, so please take a look.

1 The Perspective of 'Protection' Incorporated into the Post-War Labor Standards Act

The Labor Standards Act, enacted and enforced in 1947 (Showa 22) shortly after the war, had the major goal of realizing social justice by guaranteeing workers a 'minimum standard of living worthy of a human being' under the new Constitution.

At that time, it was believed that for female workers, by providing special protection based on the perception of the era regarding physiological functions such as pregnancy and childbirth, and the handicap in physical strength compared to men, they could finally secure a 'minimum standard of living worthy of a human being' equivalent to that of men, thereby realizing social justice.

While this law stipulated the 'prohibition of discriminatory treatment based on sex regarding wages' (Article 4), which was the world's first equal pay for equal work law, it also included provisions to protect women along with minors.

2 Specific Content of the Women's Protective Provisions (at the time of the Labor Standards Act's enactment)

In the Labor Standards Act (as originally enacted), the main content of the Women's Protective Provisions included in Chapter 6 (Women and Minors) was as follows.

2-1 Restrictions on Working Hours and Late-Night Work

[Overtime and Holiday Work (Article 61)] For women aged 18 and over, upper limits were set for overtime work at 2 hours per day, 6 hours per week, and 150 hours per year. Also, holiday work was prohibited.

[Late-Night Work (Article 62)] In principle, it was prohibited to have women work during the late-night hours from 10:00 PM to 5:00 AM. However, exceptions were made for hospitals, inns, restaurants, telephone exchanges, etc.

2-2 Isolation from Dangerous and Harmful Work

[Dangerous and Harmful Work, Underground Work (Articles 63 and 64)] Women were prohibited from engaging in dangerous work, harmful work, and work involving the handling of heavy objects. In particular, underground work was completely prohibited without exception.

2-3 Protection of Maternity and Physiological Functions and Allowances

[Pre-natal and Post-natal Leave (Article 65)] It was required that women be given 6 weeks of leave before childbirth upon request, and 6 weeks after childbirth without waiting for a request. Of this, the 5 weeks after childbirth was an absolute period of prohibition of employment, even if the individual wished to work.

[Childcare Time (Article 66)] As time for nursing an infant, it was mandatory to provide 30 minutes twice a day upon the request of a female worker until the child reached the age of one.

[Menstrual Leave (Article 67)] It was mandatory to provide menstrual leave upon the request of a woman who found it extremely difficult to work during her menstrual period, or a woman engaged in work harmful to menstruation. This was a provision incorporated into the bill against the backdrop of the post-war labor movement, which was not present in the pre-war
Factory Act. Incidentally, regarding 'work harmful to menstruation,' Article 67, Paragraph 2 of the Labor Standards Act stated that 'the scope of the work in the preceding paragraph shall be determined by ordinance,' but in reality, this ordinance was never issued.

[Travel Expenses for Returning Home, etc. (Article 68)]
It was stipulated that if a female worker returned home within 14 days of being dismissed, the employer was required to cover the necessary travel expenses.

While these provisions protected the health and safety of women in poor working environments, they also created the harmful effect of restricting women's employment to fields that were originally possible for them. By treating female workers uniformly as "weak beings," it hindered equal opportunity for women with diverse abilities and careers, and the very fact of "being a woman" became a disadvantage in corporate hiring and promotion processes.

The table below shows the content of the Labor Standards Act when the "Women's Protective Provisions" were in effect. From the post-war period through the era of high economic growth, they played a role in protecting women, but once the period of stable growth began, they became provisions that hindered the career advancement of working women.

3. Problems with Protective Provisions and Changes in the Times

Nearly 30 years had passed since the Women's Protective Provisions were enacted, and as international movements aiming for gender equality (especially the International Women's Year in 1975 and the adoption of the Convention on the Elimination of All Forms of Discrimination against Women) became more active, the recognition that "protection" had a discriminatory effect on women's professional lives spread.

The Labor Standards Act Study Group Report (November 1978) pointed out that since the high economic growth period, as women have advanced into a wide range of professional fields according to their abilities and personalities, rather than being limited to traditional women's jobs, special measures without rational reasons could actually narrow the scope of women's career choices and potentially become discrimination in themselves.

The photo below shows the Labor Standards Act Study Group. Although it was a forum for discussing the "Women's Protective Provisions" of the Labor Standards Act, there is only one woman in the photo. Checking the list of committee members in the report, there were 3 female members out of 17 total members.

The 1978 (Showa 53) Labor Standards Act Study Group Report is explained in detail in the article linked below; please take a look if you are interested.

Due to this progression, the Women's Protective Provisions were gradually reviewed, with the exception of maternity protection (protection related to pregnancy and childbirth), during the enactment of the Equal Employment Opportunity Law (enforced in 1986) and the accompanying amendments to the Labor Standards Act (1986 and 1999), and were eventually almost entirely eliminated.

In particular, regulations on overtime, holiday work, and late-night work for women were abolished in principle by the amended Labor Standards Act enforced in 1999 (Heisei 11).

Conclusion

Looking back on the Women's Protective Provisions that once existed allows us not only to know the laws of the past, but also to understand how the two values of "protection" and "equality" for women have conflicted and changed in response to the demands of the times and changes in the socio-economic environment.

It is the fact that "protection," while on one hand being a meaningful measure to safeguard women's safety and health, can on the other hand transform into "discrimination" that deprives women of their abilities, personalities, and freedom of career choice.

From the history where the "justice" of the time (women's protection) became a "barrier" that hindered later "equality," we must constantly continue to question the state of society.

It goes without saying that it is important for society as a whole to continue to ask how we can balance the two values of "protection" and "equality" in the future.