Japan’s failure to recognize same-sex marriage is “unconstitutional”, court rules

Japan’s failure to recognize same-sex marriage is “unconstitutional”, court rules

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It is the first time that a court has ruled on the constitutionality of same-sex marriage in Japan, the only country in the Group of Seven (G7) that does not recognize civil unions or same-sex marriage.

The case began in 2019, when three couples in Hokkaido Prefecture filed a lawsuit claiming 1 million yen (about $ 9,160) for psychological damage caused by the government for not allowing same-sex marriage.

Japan does not recognize same-sex unions across the country, although some parts of the country issue “partnership certificates” that grant some rights that benefit heterosexual couples to same-sex couples.

The Sapporo District Court in Hokkaido ruled on Wednesday that the government’s lack of recognition for same-sex marriage is a violation of a section of the constitution that requires equal laws for everyone.

But the court rejected the couples’ claims for damages.

The three couples were among several in Japan who are suing the government, arguing that the current same-sex marriage law violates their constitutional rights and should have the same legal rights and privileges as heterosexual couples.

Wednesday’s decision is the first verdict in ongoing cases.

“Today’s decision acknowledged that we really exist,” said a claimant known by the alias Takashi. “I want a society where sexual minorities have hope and a choice for the future.”

Kanae Doi, Japanese director of the non-profit organization Human Rights Watch (HRW), said the decision alone would not legalize same-sex marriage in the country – that it would need a Supreme Court decision, which could take several years old.

Alternatively, Japan’s legislature, the Diet, could pass a law making same-sex marriage legal, although there is almost no appetite for the ruling party to do so, she said.

But Wednesday’s “historic” decision was still significant, as it was a step towards legalizing same-sex marriage, she said.

Takeharu Kato, the plaintiffs’ lawyer, said he was also moved by the verdict. “I never expected the court to decide this clearly,” he said at a news conference, adding that the plaintiffs are now considering taking the case to a higher court.

The law in Japan

Homosexuality has been legal in Japan since 1880, and the country is relatively liberal compared to some other Asian nations. Only one place in Asia has legalized same-sex marriage – Taiwan.
Two Tokyo districts passed a law in 2015 that allowed same-sex couples to obtain “partnership certificates”, giving them some of the same rights as married heterosexual couples. Since then, dozens of municipalities have passed decrees not officially recognizing same-sex relationships, although they do not offer the same level of legal rights as heterosexual marriages.
But activists say Japan’s LGBTQ community still faces prejudice and that the country has yet to enact a national anti-discrimination law that would protect LGBTQ people from discrimination. According to Doi, people were fired from their jobs for being gay.
HRW, together with LGBTQ organizations, has been asking Japan to adopt an Equality Act before the Tokyo Olympics in 2021.

“Japan is very, very backward in terms of legislation regarding LGBT people,” said Doi of HRW. “This historic decision (on Wednesday) will put pressure on those who oppose the LGBT Equality Act.”

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