Japan: still an outlier on marriage equality
On 20 June a court in Osaka ruled that Japan’s ban on same-sex marriage is constitutional, dashing the hopes of same-sex couples demanding the right to marry. The ruling came a year after a court victory that offered hope of progress towards legal recognition. A step forward has come with the extension of a civil partnership scheme across Tokyo, part of a growing wave of acknowledgement of same-sex unions, but this stops short of full rights. Japan’s LGBTQI+ activists will keep pushing to shift public opinion – and with it the views of legislators and judges – until equal rights are secured.
Japan remains the only G7 country that still fails to recognise same-sex marriage. Hopes that Japan might catch up were dashed on 20 June, when an Osaka district court upheld the country’s same-sex marriage ban as constitutional. While municipalities across the country are increasingly moving to recognise same-sex unions, legal marriage remains out of reach for Japanese LGBTQI+ couples.
An interrupted journey
In Asia, it was Taiwan that led the way: in 2019, it became the first – and so far only – Asian county where same-sex marriage is legal. Japan was expected to follow suit: compared to many countries in the region that maintain actively hostile laws and policies towards LGBTQI+ people, it has a reputation for being at the liberal end of the spectrum. Homosexuality has been legal in Japan since 1880, after being criminalised for a brief period starting in 1872.
But the constitution hasn’t kept up with changing realities. Article 24 specifies that marriage is a contract between ‘both sexes’ and identifies those involved as ‘husband and wife’. The Japanese Civil Code also limits marriage to heterosexual couples.
In 2009, Japan recognised same-sex marriages performed abroad and began allowing its nationals to marry their partners in countries where the right is recognised. It facilitated this process by issuing certificates stating that the individuals concerned were single and of legal age.
Another step forward came in 2015, when Tokyo’s Shibuya district launched a partnership system to recognise some rights – such as hospital visits and access to rentals – previously restricted to heterosexual couples. Since then, more than 200 other municipalities have followed suit and now issue partnership certificates to those who request them.
In March 2021, when a Sapporo court ruled that the current marriage laws violate the right to equal treatment under the law as stated in article 14 of the constitution, it seemed the country was ready to move forward – but then this June the Osaka court delivered its blow.
The Osaka case was brought by three same-sex couples – two male and one female – who argued that the current laws discriminate against them on the basis of their sexual identity and deprive them of the economic and legal benefits available to married heterosexual couples. As part of their lawsuit, they demanded 1 million yen (approx. US$7,400) per person in financial compensation.
The Osaka court rejected their case: it ruled that since the constitution defines marriage as being between ‘both sexes’, the right to marry legally doesn’t apply to same-sex couples.
Discrimination and its impacts
Under current federal legislation, Japanese same-sex couples can’t jointly adopt children, gain parental rights over stepchildren, or inherit each other’s property or assets. They are often barred from renting together and can face difficulties in making hospital visits: all rights and freedoms married couples take for granted. Lack of legal recognition has dramatic real-world impacts.
The absence of marriage equality is just one of the many ways Japan is failing LGBTQI+ people. Its current system doesn’t provide enough protections against discrimination on grounds of sexual orientation or gender identity, leaving LGBTQI+ people vulnerable to marginalisation, violence and abuse.
While Japanese legislation prohibits discrimination in employment on the basis of disability and sex, there is no comprehensive anti-discrimination law protecting LGBTQI+ people. Japan’s parliament – the National Diet – declined to pass such law a when activists submitted it in the hope of having appropriate protections in place in time for the Tokyo Olympics, held in 2021.
Despite the challenges, the Japanese LGBTQI+ movement has achieved victories over the years. Progress has been slow but steady; however, it has resulted in a patchwork approach that makes access to recognition dependent on place of residence and falls short of full and equal rights.
The partnership system pioneered in Shibuya was quickly replicated: over 12 per cent of municipalities across Japan have since introduced similar systems and begun issuing partnership certificates. This June, the Tokyo metropolitan government became the ninth of Japan’s 47 prefectures to adopt the same-sex partnership system. Expected to come into effect in October, the move gives same-sex couples the option to register online. Fifteen Tokyo districts had already followed Shibuya’s lead, but now the policy will apply across the whole city, home to 14 million residents.
As the change affects such a large population and is taking place in the country’s capital it has wide potential impact. It raises the visibility of the issue and offers a symbol of hope to encourage activists to keep pushing forward.
Civil society leading the way
Every step forward has been the result of years of civil society advocacy. One large-scale campaign that won significant attention was the #EqualityActJapan campaign. In the run-up to the Tokyo Olympics, activists called on the government to pass an Equality Act to protect LGBTQI+ people from discrimination.
The campaign was driven by a team of local and international civil society organisations, including All Out, Athlete Ally and the Japan Alliance for LGBT Legislation (J-ALL). In January 2021, 116 organisations wrote to the government supporting the proposed law.
Although falling short of its main goal of getting the Equality Act passed, the campaign’s impact was seen in the passing of the LGBT Understanding and Enhancement Bill in April 2021. While it doesn’t ban discrimination outright, the bill represents an acknowledgement by the government that it needs to do more to promote social inclusion of LGBTQI+ people. Rights groups will keep pushing the government further, urging it not to see this as a mission accomplished.
Work to shift social attitudes has been key in the push for legal change. Public mobilisations such as the #EqualityActJapan campaign increased the visibility and acceptance of LGBTQI+ people. Following civil society’s joint letter to the government, over 100,000 people signed a petition to support the bill and several major businesses – including Coca-Cola, Deloitte, EY and Microsoft – endorsed the campaign.
Japan hosted its first Pride event in 1994. In April 2022, Tokyo Rainbow Pride emerged from the pandemic stronger than ever with tens of thousands asserting their right to be seen and heard after a two-year absence from the streets.
The changing tide is reflected in opinion polls, which show consistently increasing support for LGBTQI+ rights in general and same-sex marriage in particular, especially among young people. In 2014, just before the equal marriage campaign was launched, 52.4 per cent of people opposed the idea; five years later, almost 80 per cent of those aged 60 and under supported it.
Voices from the frontline
Akira Nishiyama is executive officer of the Japan Alliance for Legislation to Remove Social Barriers based on Sexual Orientation and Gender Identity (J-ALL).
As the social movement to promote the rights of LGBTQI+ people has grown, backlash by religious right-wing groups, ultra-conservative politicians and trans-exclusionary radical feminists (TERF) groups has also grown. For instance, several politicians gave discriminatory speeches against LGBTQI+ people in response to discussions regarding the anti-discrimination bill agreed on by LGBT Giren, a nonpartisan political caucus set up to discuss SOGI-related human rights violations in 2021. Bashing against transgender women and LGBTQI+ people based on heteronormativity, conventional understandings of the family and stereotypical images of women are prevalent in both the real world and the internet.
The Japanese government is closely connected with religious right-wing groups based on the values of male chauvinism and a patriarchal view of the family. Because of these close ties, ruling politicians have long ignored the existence of people with diverse sexualities and gender identities and have sustained a social system that lacks SOGI-related education and allows for SOGI-based human rights violations. As a result, LGBTQI+ people face wide-ranging challenges such as prejudice, bullying and harassment, and victims of SOGI-related human rights violations are not protected by the law.
We believe that Japanese civil society needs to recognise this connection between mainstream politics and the religious right in order to tackle human rights issues in earnest. It is also important to learn about which groups of people are marginalised by the current social systems built by the majority and what kind of human rights violations they face, and to take actions such as electoral participation and making public comments based on these concerns.
In March 2021, the Sapporo District Court ruled that not allowing same-sex marriage was unconstitutional. After a careful scrutiny of the scientific and medical arguments currently used to deny legal benefits to same-sex couples, the court reasoned that the failure to allow ‘even a certain degree’ of legal benefits to same-sex couples based on their sexual orientation is against Article 14 of the Constitution, which stipulates equality under the law. Although the court dismissed the plaintiffs’ claim for compensation, its verdict was viewed as a step that would surely accelerate the movement to legalise same-sex marriage in Japan.
But then in June 2022, the Osaka District Court concluded that not allowing same-sex marriages does not violate Article 14, given that the legal disadvantages faced by same-sex couples can be compensated by wills or other means. In addition, the court emphasised that the gap between the benefits enjoyed by heterosexual and same-sex couples has been minimised by the recognition of same-sex partnerships at the municipal level. This, however, overlooks the fact that the municipal system of partnership recognition is not legally binding.
The Osaka District Court also claimed that the ‘true’ elimination of discrimination and prejudice should be achieved by constructing a social system through the democratic process of free discussion by the people. This was criticised by civil society as an abdication of the judiciary’s crucial role as the bastion of human rights.
This is an edited extract from our conversation with Akira. Read the full interview here.
More change needed
While progressive societal change is the best incentive there is for politicians to shift their position, LGBTQI+ people shouldn’t have to wait for widespread social acceptance to get the equal rights and protections they deserve. No minority should have to submit their rights to the verdict of the majority.
The plaintiffs in the Osaka case have said they intend to appeal against the ruling. But they know this offers no guarantee of success, and the need is to change the law, as the Osaka ruling itself indicated.
Sadly the government keeps dragging its feet, and a recent change in leadership hasn’t helped. In 2021, Fumio Kishida won his bid to lead the ruling Liberal Democratic Party (LDP), becoming Japan’s prime minister. While his challenger, Taro Kono, said he backed same-sex marriage, Kishida is more conservative: he has said he has ‘not yet reached the point’ where he can support it.
The LDP has been in power for almost all the time since 1955, with only a couple of brief interruptions. It is a conservative party and some of its politicians are closely linked with right-wing groups that are openly and actively hostile to LGBTQI+ rights: in 2018, one member of parliament, Mio Sugita, called LGBTQI+ people ‘unproductive’, causing thousands to protest outside the party’s headquarters.
But in the 2021 election, most LDP candidates said they were ‘undecided’ on the question of same-sex marriage, seemingly offering fertile ground for change. The need for continuing advocacy is clear: LGBTQI+ activists will continue to engage with ruling party politicians to change their heart and minds and keep up with an evolving society.
OUR CALLS FOR ACTION
The government of Japan should reform all current laws and policies that discriminate against same-sex couples.
The government of Japan should follow international standards and enact legal protections against discrimination on the basis of sexual orientation and gender identity.
Japanese civil society should focus on both legal and social change and invest in strategies to influence ruling party politicians.
Cover photo by J-ALL