Japan: a different Valentine’s Day story

Back to LGBTI Committee publications

Christian Crohn
White & Case, Berlin
christian.crohn@whitecase.com

On 17 March 2021, the Sapporo District Court handed down what is considered by many as a historic landmark ruling establishing that it is unconstitutional to bar same-sex marriage.^[1]

Although Japan was the first country in Asia to legalise homosexual acts between consenting adults, and to make the age of consent for same-sex relations the same as for opposite-sex relations (both in 1880), same-sex marriage is not legal in Japan.

Same-sex unions are not explicitly banned in Japan, but they are recognised neither by the national nor most local governments. A number of municipalities issue ‘partnership certificates’, which provide some limited rights to same-sex couples with regard to municipal services falling short of full marriage rights. They are largely perceived to have ‘little legal or practical value’.^[2] Such certificates allow the holders to enjoy various services provided by the municipality, such as being eligible to apply for public housing as a couple or hospital visitation rights. Yet, without a will, same-sex couples cannot inherit their partner’s assets, benefit from income tax deductions for spouses or immigration rights for a foreign spouse nor do they have parental rights to any children their partners may have.^[3] However, the number of local governments issuing ‘partnership certificates’ to Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) couples has grown exponentially, reaching 59, including Sapporo; seven Tokyo wards; Ibaraki prefecture; Osaka city and prefecture; Kyoto; Fukuoka; and Naha, and covering more than 30 per cent of Japan’s population and parts all over Japan.^[4]

In total, currently 29 countries have legalised same-sex marriage: Argentina, Australia, Austria, Belgium, Brazil, Canada, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States and Uruguay. Twenty of these countries have legalised same-sex marriage nationally through legislation, seven countries have legalised same-sex marriage nationally through court decisions and two countries enacted legislation legalising same-sex marriage after courts mandated them to do so.^[5]

The ruling of the Sapporo District Court came in a civil law suit filed against the Japanese government by two gay and one lesbian couple seeking damages in the amount of $9,000 per person for the government’s failure to recognise same-sex marriages. The plaintiffs argued that the lack of recognition of their unions, had unfairly denied them access to services and benefits available to married couples.

The plaintiffs filed their suit on Valentine’s Day 2019 as part of a broader national campaign to pressure the Japanese government into recognising same-sex marriage. Ten other same-sex couples filed similar suits on the same day in three other courts across the country (Nagoya, Osaka and Tokyo), and another three same-sex couples filed a similar suit in the city of Fukuoka in September 2019.^[6] ‘Marriage for All Japan’, a non-profit organisation, has taken the lead on these marriage equality cases. Masa Yanagisawa, Head of Prime Services Japan at Goldman Sachs, who also serves as a board member to the campaign group ‘Marriage For All’, commented on the Sapporo ruling by saying: ‘This is a landmark ruling, and I hope it will be an opportunity to build awareness that marriage is a right that should be afforded to all people equally.’^[7]

The Sapporo District Court rejected the plaintiffs’ claims for damages. It agreed with the Japanese government that the relevant provisions of the Civil Code and the Family Register Act did not violate Article 24 of the Japanese Constitution. Article 24 (1) provides that: ‘Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.’ The Court argued that the government could not be held liable for damages because the issue of same-sex marriage had only recently entered Japan’s public discourse. However, it can be seen as a great symbolic victory that the Court also held that the ‘fail[ure] to provide same-sex persons with any legal means to benefit from any of the legal benefits that arise from marriage exceeds the scope of discretion granted to the legislature’ and violates the constitutional guarantee of equality (Article 14 (1) of the Japanese Constitution).

Notably, the Sapporo ruling states that: ‘Sexual orientation is a personal characteristic that cannot be changed by the will of the individual, and in that sense it is similar to race or gender. Therefore, whether or not a distinction based on such a matter has a rational basis must be carefully examined to determine whether or not it is truly an unavoidable distinction.’^[8]

One of the plaintiffs had stated that: ‘Only because the gender of the person we love is different, we can’t get married. We live the same lives as heterosexuals, have the same troubles and the same joys.’^[9]

The Court held further that: ‘Since a homosexual person cannot be regarded as enjoying the same legal benefits as a heterosexual person, we cannot deny that differential treatment on the basis of sexual orientation exists. […] Considering that the only difference between heterosexual and homosexual persons is their sexual orientation and sexual orientation cannot be chosen or changed by one's own will, there is no basis for differentiating between heterosexual persons and homosexual persons with respect to the Legal Benefits of Marriage, and both homosexual persons and heterosexual persons must be able to equally enjoy such legal benefits.’^[10]

The Court also noted that: ‘To say that homosexual couples cannot even partially enjoy the Legal Benefits of Marriage, which is an important legal benefit, without the understanding or tolerance of the dominant heterosexual majority is a glaring lack of protection of homosexual persons compared to heterosexual persons.’^[11]

Moreover, the Court rejected the government’s argument that ‘marriage is for heterosexual couples because the purpose of marriage is to bear and raise children’ by stating that ‘the protection of a couple’s common life itself, with or without children, is also an important purpose of marriage’.^[12]

Japan is the only member of the Group of Seven to not have granted LGBTI couples the right to get married. Taiwan is currently the only country in Asia that has legalised same-sex marriage. In Thailand, a same-sex marriage bill is in the queue for parliamentary deliberation since November 2020.^[13] Japan could be next and – once again – take the lead of the ‘flying geese’ formation inspiring other countries of the region to follow. The American Chamber of Commerce in Japan, backed by over 100 entities (other chambers of commerce, industry organisations, financial institutions, law firms and major Japanese corporations), urged the Japanese government with its ‘Viewpoint – Support the Recruitment and Retention of Talent by Instituting Marriage Equality in Japan’ to realise the value of same-sex marriage when competing for the attraction and retention of highly skilled workers in an increasingly international economy. To do so would remove handicaps companies face in Japan in recruiting and retaining talent and in treating the full diversity of their workforce equitably, which are foundational elements of a work environment conducive to maximum productivity.^[14]

The lawyers representing the plaintiffs of the Sapporo lawsuit have already announced their intention to appeal the ruling with regard to the rejection of a violation of Article 24 of the Japanese Constitution and of the award of damages. The legal team believes that the case will ultimately end up at the Supreme Court by the end of 2023.^[15]

The same-sex marriage movement certainly gained momentum with the Sapporo ruling, which set a precedent. Yet, it remains to be seen whether the other suits filed on Valentine’s Day 2019 will be decided similarly by the competent courts of Fukuoka, Nagoya, Osaka and Tokyo.

If not swayed by liberal-thinking judges, public opinion will likely influence the Japanese legislator’s willingness to extend marriage rights to same-sex couples. An extensive survey conducted in October 2018 by the Dentsu Diversity Lab, part of the major Japanese marketing agency Dentsu Inc, and involving 60,000 individuals aged 20–59 across Japan, revealed that a clear majority of 78.4 per cent of respondents approved of same-sex marriage. Among the respondents, 8.9 per cent identified as LGBTI (compared to 5.2 per cent in 2012 and 7.6 per cent in 2015).^[16] The submission of the Equal Marriage Bill by the opposition parties in 2019 to Parliament, which now has two openly gay elected members (Taiga Ishikawa and Kanako Otsuji), gives reason to expect a further acceleration of parliamentary and societal debates on marriage equality in Japan.^[17]

Former Supreme Court Justice Katsumi Chiba said ‘values and attitudes are changing – as are society's views’.^[18]

Maybe some not so distant Valentine’s Day in the future, same-sex couples all over Japan may celebrate this day together with their legally recognised spouses.