from Asia Unbound

Japanese Court Puts Same-Sex Marriage on the Nation’s Agenda

Plaintiffs' lawyers and supporters show a banner stating the ruling found the government measures unconstitutional, after a district court ruled on the legality of same-sex marriages outside Sapporo District Court in Sapporo, Hokkaido, March 17, 2021
Plaintiffs' lawyers and supporters show a banner stating the ruling found the government measures unconstitutional, after a district court ruled on the legality of same-sex marriages outside Sapporo District Court in Sapporo, Hokkaido, March 17, 2021 Kyodo via Reuters

March 30, 2021
12:00 pm (EST)

Plaintiffs' lawyers and supporters show a banner stating the ruling found the government measures unconstitutional, after a district court ruled on the legality of same-sex marriages outside Sapporo District Court in Sapporo, Hokkaido, March 17, 2021
Plaintiffs' lawyers and supporters show a banner stating the ruling found the government measures unconstitutional, after a district court ruled on the legality of same-sex marriages outside Sapporo District Court in Sapporo, Hokkaido, March 17, 2021 Kyodo via Reuters
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Erin Gallagher is a research associate for Japan studies at the Council on Foreign Relations.

 

On March 17, three couples in Hokkaido won a landmark case in the Sapporo District Court. Thousands, in Japan and across the globe, joined in the celebration as the district court ruled that the refusal of the Japanese government to recognize same-sex marriages violates Article 14 of the constitution, which guarantees equality under the law for all Japanese citizens.

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The lawsuit in Sapporo was one of four filed by thirteen same-sex couples across Japan on February 14, 2019. One of the couples, known by pseudonyms Ms. E and Ms. C, had sought to register their marriage in their home city of Sapporo, but were rejected because they were both women. The Sapporo city government argued that Japanese national law does not recognize same-sex marriage, though it is not specifically banned. The pair joined with twelve other same-sex couples from across Japan to challenge the constitutionality of government refusal to recognize them as legal partners.

This recent decision marked a shift in the legal framing of the LGBTQ+ cause. By basing her decision on Article 14, Sapporo District Court Judge Takebe Tomoko highlighted a far more powerful argument for LGBTQ+ rights. To date, LGBTQ+ activists have often based their argument for the constitutionality of same-sex marriage on Article 24, which states that marriage is “based only on the mutual consent of both sexes.” Judge Takebe has shifted the discussion away from a conversation over gender to a debate over equality.

This ruling was not the first victory for LGBTQ+ equality in Japan. Other court cases have ruled in favor of various issues of importance to Japan’s LGBTQ+ activism, including a ruling from 1997 in which the Tokyo High Court said that the Tokyo Metropolitan Government could not legally deny the use of city run youth hostels to the LGBTQ+ group “Occur.” In a more recent decision from March 2020, the Tokyo High Court heard a case in which the judge ruled that same-sex couples should have the same rights as heterosexual married couples. This ruling provided  legitimacy to the plaintiff’s same-sex relationship despite its lack of legal standing, allowing the plaintiff to sue her female partner of seven years for infidelity in a move that was previously restricted to heterosexual spouses.

Local governments have also played an important role by recognizing same-sex relationships. In 2015, two municipal governments in Tokyo, Setagaya-ku and Shibuya-ku, began issuing special partnership certificates for same-sex couples. Since then, more than sixty local governments in Japan have done the same, from small municipalities of less than 100,000 people such as Kijo-machi in Miyazaki prefecture to cities as large as Osaka. These certificates, which provide a proof of partnership, can help same-sex couples to rent apartments together or visit one another in the hospital. In 2017, the city of Osaka allowed the first same-sex couple in Japan to act as foster parents.

Yet even in municipalities where special partnership certificates are available, the inability to get married means that same-sex couples still cannot enjoy the same rights as heterosexual couples. For example, LGBTQ+ couples cannot parent children together. Moreover, there is no legal obligation on landlords or hospitals to honor their rights even if presented with a certificate. In cities where partnership certificates have not been adopted, same-sex couples have even less chance for recourse. In short, while these gains at the local level have done much to help same-sex couples, increased rights in one city do not necessarily guarantee similar rights in others.

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These smaller, local steps have done much to lay groundwork for the LGBTQ+ community but have not created widespread change at the national level. Like many other areas of citizen activism, there is little incentive for national legislators to advocate for this issue. The governing coalition of the Liberal Democratic Party and Komeito are socially conservative parties that have no interest in progressive marriage laws. Even among more progressive opposition parties, marriage equality is not a priority. For instance, Otsuji Kanako, a member of the opposition Constitutional Democratic Party of Japan and Japan’s first openly gay Diet member, makes no secret of her activism and worked with a small group of like-minded peers from the Japanese Communist Party and the Social Democratic Party to introduce a bill to legalize same-sex marriage in June 2019. Their efforts, however, have thus far gained little traction in the Diet as the governing coalition has refused to discuss it.

The Sapporo District Court ruling, however, may indicate an important opportunity for the LGBTQ+ community in Japan. By decoupling the issue of same-sex marriage from the politically challenging task of constitutional revision, the ruling opens the way for a broader conversation about legal discrimination against Japan’s LGBTQ+ community. This past week, editorials in major Japanese newspapers are disavowing the discrimination LGBTQ+ people face under Japanese law and calling for further action from the Japanese government. One editorial in the Asahi Shimbun praises the ruling for respecting “the basic human rights of minorities,” and notes that Japan is the only G7 country which doesn’t allow same-sex marriage. Another editorial in the Mainichi Shimbun calls the decision 画期的 (kakkiteki) or “groundbreaking,” and urges the national government to develop legal protections for same-sex marriage.

Moreover, most news sources have been quick to point out that public opinion seems to be changing. While in decades past there was an unspoken expectation on LGBTQ+ citizens to stay quiet about their sexuality, social acceptance of same-sex couples has been growing, especially among more progressive and younger Japanese. An Asahi Shimbun poll from this week revealed that 65% feel same-sex marriage should be legal. Of those aged 18-29, the number jumps to 86%. This growing national support has been joined by international attention. News sources and activists around the globe have lauded the decision.

After decades of small wins and local solutions, the wave of support for the Sapporo ruling suggests that the moment for significant social change for Japan’s LGBTQ+ community may finally have arrived.

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