Towards marriage equality in Japan

Author: Ayako Hatano, Centre for Human Rights Education and Training

‘I am glad I could survive until today’, one plaintiff said on 17 March 2021 when, in a landmark decision, the Sapporo District Court in Japan ruled that failure to recognise same-sex marriages violates Article 14 of the Constitution on the right to equality. The court determined that sexual orientation ‘cannot be chosen or changed by one’s own will’. It concluded that it is unreasonably discriminatory that same-sex couples cannot enjoy the legal benefits of marriage afforded to heterosexual couples.

This first-ever decision on the constitutionality of marriage equality in Japan was lauded by LGBTQI communities and allies in and out of the country as a significant milestone toward a more inclusive society, giving hope to many same-sex couples and sexual minorities nationwide.

The court also acknowledged decades of local activism has contributed to a growing public awareness of the need to eliminate discriminatory treatment on the basis of sexual orientation. Since 2015, an increasing number of municipalities have issued partnership certificates to same-sex couples. These do not provide any legal protection, but they reflect the increasing social recognition of the relationship.

Public opinion surveys also suggest growing acceptance of same-sex couples. One 2019 survey showed that about 65 per cent of total respondents supported same-sex marriage, with that number increasing to 80 per cent for people in their 20s and 30s. This is a marked change from 2015, when just 50 per cent of respondents favoured same-sex marriage, including 70 per cent of young adults. The Sapporo District Court decision was followed by a number of articles in major newspapers urging the Japanese government to protect same-sex couples.

Yet Japan still ranks second-to-last among OECD countries on LGBTQI-inclusive laws and is the only member of the G7 that has not recognised same-sex civil unions or same-sex marriage. While there is no law against consensual same-sex sexual acts, Japan does not explicitly prohibit discrimination based on sexual orientation, gender identity or intersexuality.

This legal landscape makes same-sex couples ‘invisible’, which stigmatises members of the LGBTQI community across the country and deprives them of many of the rights to which married couples are entitled.

If the majority of Japanese people support same-sex marriage, what is preventing national legislative change?

First, the governing coalition, which has been in power for decades, consists of socially-conservative parties — so there is little incentive for national legislators to prioritise LGBTQI issues. Despite the diversity in conservative parties, there is a strong, though not big, clique including those who are worried that same-sex marriage could cause an adverse effect to the ‘traditional’ family system and values. In 2018, one MP questioned the need for state and municipal governments to support same-sex couples, calling them ‘unproductive’ as they do not bear children. This sparked widespread criticism, but similar comments were repeated afterwards.

Japan’s court system has a conservative bent as well, characterised by ‘consistency, discipline, and fidelity to the sensibilities of those who wield power’ in its highly bureaucratic system. It makes the Sapporo District Court’s decision all the more remarkable. The Court did not recognise unconstitutionality under Article 24 on marriage equality nor Article 13 on individual rights. Instead, it emphasised that Article 24 — which defines marriage as being based on the mutual consent of ‘both sexes’ — should not be interpreted to deny the rights of cohabitating heterosexual couples, irrespective of whether or not they have children. In doing so, the court shifted the discourse away from a political or constitutional debate over Article 24 to a debate over equality. This may lead to broader discussions about legal discrimination against Japan’s LGBTQI community.

In its decision, the Sapporo court dismissed the claim for compensation under the State Redress Act on the grounds that it was not easy for the state to immediately recognise unconstitutionality. The case was appealed on 31 March 2021 and continues to attract public attention together with four other ongoing strategic litigation cases nationwide on marriage equality.

These ongoing cases, combined with advocacy targeting a wide range of lawmakers from supporters inside and outside Japan — as well as the engagement of the general public through personal story sharing, crowdfunding and YouTube streaming — have already resulted in widespread public support for marriage equality. A working group on same-sex marriage has been set up, led by the project team on sexual orientation and gender identity in one of Japan’s ruling parties (Komeito).

Meanwhile, in April 2021, the conservative ruling Liberal Democratic Party (LDP) proposed a draft law aiming to promote public understanding of LGBTQI people, but does not include any protection clause for LGBTQI discrimination. The draft bill was severely criticised and opposed by many of LGBTQI rights advocates as the bill may put only ‘understanding’ first, leaving discrimination issues behind, and falls short of the government’s international human rights obligations. On 14 May 2021, after intense negotiations between Japan’s ruling and opposition parties, they agreed to include ‘no tolerance for discrimination’ in the purpose and principle of the bill. But there does not seem to be enough to form a legal basis for victims of discrimination to secure remedies, nor does it strongly promote anti-discrimination measures.

While there is still much work to be done to support the rights of Japan’s LGBTQI community, the Sapporo District Court ruling is a landmark decision. Advocates hope that it will help push lawmakers towards legislative change for marriage equality.

Ayako Hatano is a Research Fellow at the Centre for Human Rights Education and Training, Tokyo.

The post Towards marriage equality in Japan first appeared on East Asia Forum.

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