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

Plaintiffs’ lawyers and supporters hold rainbow flags and a banner that reads “Unconstitutional judgment” outside Sapporo District Court on Wednesday in Sapporo, Japan. (Yohei Fukai/AP)

TOKYO — A Japanese court ruled on Wednesday that the government's failure to recognize same-sex marriages is unconstitutional, a landmark decision that brought joy and hope to the LGBT community.

The case is the first of five similar lawsuits unfolding in Japanese courts, and it brings new pressure on the government to catch up with public opinion and legalize same-sex unions.

But the district court in the northern city of Sapporo denied a request by three same-sex couples for compensation of about $9,200 each for psychological damage after the authorities failed to register their marriages.

The judge cried as she delivered the ruling, local media reported, as did some of the plaintiffs.

“I was in tears hearing her clearly say it was unconstitutional,” one of the anonymous plaintiffs was quoted as saying by Hokkaido Cultural Broadcasting. “It doesn’t mean we can get married tomorrow, so I want to continue our efforts moving forward.”

Another plaintiff said she hoped this would be “the first step for Japan to change.”

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Same-sex marriage is legal in some 29 countries or territories, but Taiwan is alone in Asia in legalizing same-sex unions, which it did in 2019.

Japan’s refusal to recognize same-sex marriages is not only humiliating for couples, it means that they are treated as individuals for tax and pension purchases, and face complications with inheritance, adoption and visa rights.

Those in same-sex relationships do not have the legal right to visit their partner in the hospital or receive medical updates, nor make decisions on their partner’s behalf, although some municipalities issue certificates to help get around these sorts of obstacles.

“This ruling is a big step forward,” said Kanae Doi, Japan director at Human Rights Watch. “While the Supreme Court would eventually decide whether the Diet [parliament] needs to act or not, which will be several years away, today’s ruling will affect the already supportive Japanese public opinion on marriage equality, which would make it harder for the Supreme Court to neglect.”

Japan is the only country in the Group of Seven rich industrialized nations not to recognize same-sex marriages. Last year, the American Chamber of Commerce in Japan said this made the country a less attractive option for LGBT couples and urged Japan to “correct this inequality.”

“It’s amazing, I am so thrilled,” said Masa Yanagisawa, head of prime services at Goldman Sachs Japan and a board member of the NGO Marriage for All Japan. “This is a landmark ruling, and I hope it will lead to heightened awareness that marriage is a right that should be afforded to all people equally.”

These South Korean women went abroad to get married. Then the backlash began.

Although some Japanese multinational companies have recently changed their policies to recognize same-sex couples, many others do not, and this makes it harder for them to hire and retain LGBT staff, Masa said.

Many lesbian, gay, bisexual and transgender people in Japan also face discriminatory comments at work, surveys show.

Japan’s constitution defines marriage as being based on “the mutual consent of both sexes,” with the “equal rights of husband and wife as a basis.”

The government says this precludes same-sex marriages, but the plaintiff’s lawyers successfully argued the article’s intent was to preserve gender equality and individual respect, and that denying same-sex marriages violates a separate constitutional provision ensuring the right to equality, the Kyodo news agency reported.

Chief Cabinet Secretary Katsunobu Kato said the government does not agree that civil law on marriage is unconstitutional, but will “carefully watch” the outcomes of the ongoing court cases.

Homosexual sex has been legal in Japan since 1880, but social attitudes keep the LGBT community largely invisible and many have yet to come out to their families or employers.

Nevertheless, attitudes are changing. Polls in the past decade show narrow majorities in favor of same-sex marriage, while a survey by advertising agency Dentsu in 2018 found that more than 78 percent of people between ages 20 and 59 approve of same-sex marriage. Some 147 businesses and organizations in Japan have also signed up to a campaign to legalize same-sex marriage. 

Li Italiaander, a 32-year-old nonbinary American in a relationship with a Japanese woman, said current rules made it harder for them to remain in Japan, since they do not qualify for a spouse visa.

“Every year, I have to worry about not being able to renew my visa and us potentially being separated,” they said. “The ruling in Sapporo is a huge step toward something that could be life-changing for us.”

These South Korean women went abroad to get married. Then the backlash began.

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