As LGBTQ movements around the world celebrate Pride Month, the LGBTQ rights struggle in Japan has suffered a blow after the Osaka District Court ruled that the existing ban on same-sex marriages is constitutional. The ruling passed on Monday, June 20, by the Osaka District Court rejected the petition filed by three couples that laws and government directives preventing same-sex couples from marrying were unconstitutional.
The petition targeted Article 24 of the Japanese constitution which stipulates 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.”
This ruling, along with the Articles 731 to 737 of the Japanese Civil Code, effectively limits any recognition and protection of marriage and partnerships to heterosexual couples. The ruling Liberal Democratic Party (LDP), a respondent in the case as the government, has also consistently argued that the constitution only allows for heterosexual marriages.
The court favored the argument, holding that “there have not been enough discussions” among the Japanese people on what protections and systems are appropriate for same-sex couples, but also held that “it may be possible to create a new system.”
The court also rejected the petitioners’ demand for JYP 1 million (USD 7,400) to each couple in damages for “unjust discrimination” for being prevented from marrying and of government negligence in amending the system.
Akiyoshi Tanaka, one of the plaintiffs in the case, told reporters in his response to the ruling that “there is a long way ahead” in this struggle, while his partner Yuki Kawata called the court “weak-kneed” in its ruling. Another plaintiff Machi Sakata called the ruling a “disappointment” as she broke down outside the court.
The plaintiffs have stated that they will be appealing against the ruling in higher courts. The ruling comes over a year after the Sapporo District Court ruled in a landmark decision in March 2021 that interpreting marriage as solely between a man and a woman violated Article 14 of the constitution that prohibits discrimination based on “race, creed, sex, social status or family origin.”
The petition in the Sapporo District Court ruling was part of a nationwide campaign by 13 same-sex couples filing parallel petitions against the government in Sapporo, Nagoya, Osaka and Tokyo district courts on Valentine’s Day in February 2019. A fifth petition by three other same-sex couples was filed at the Fukuoka District Court in September 2019.
Even though same-sex relationships have been decriminalized in Japan since 1880, one of the first Asian nations to do so, partnerships hardly have any protection or recognition in the country.
This prevents partners in same-sex relationships from accessing a wide set of rights otherwise afforded to heterosexual couples, ranging from inheritance of shared homes, renting houses as a couple, a range of tax benefits for families, residency for foreign partners, adoptions and custodial rights on partners’ children, and even visitation rights at hospitals.
Since 2015, over 100 municipalities across Japan have started issuing partnership certificates to same-sex couples, allowing them to access some limited recognition as couples regarding housing and visitation rights. Nine of the 47 prefectural governments, with Tokyo being the latest on June 15, have passed laws extending these limited recognitions, covering nearly half the Japanese population.
The Sapporo District Court’s ruling, the first among these petitions, is still viewed as a milestone in queer rights in the country, even though the ruling rejected the demand for damages. Despite the ruling, the struggle for marriage equality is expected to continue. While the appeals against the Osaka ruling are expected to be filed soon, the Tokyo District Court is expected to rule on a petition filed later this month.
Even though several political leaders and even certain regional and national political parties like the Japanese Communist Party (JCP), the Social Democratic Party and the Constitutional Democratic Party have expressed support for LGBTQ rights, the ruling LDP has historically opposed the LGBTQ struggle, at best expressing piecemeal support.
Changing popular opinion and a growing support for same-sex marriages across the country has often forced the ruling parties to make symbolic efforts. This was evident with the tabling of a widely criticized symbolic “LGBT Understanding Bill” that seeks to “promote understanding of LGBT people” but does nothing to prevent discrimination or recognize material rights.