Japan court upholds ban on same-sex marriage but offers hope

Tokyo court says Japan’s lack of legal protection for same-sex couples to marry and become families violates their rights.

Plaintiffs, lawyers and supporters march as they head to the court which will rule on the constitutionality of same-sex marriage, in Tokyo, Japan
Plaintiffs, lawyers and supporters march as they head to the court ahead of a ruling on the constitutionality of same-sex marriage, in Tokyo, Japan, November 30, 2022 [Kim Kyung-Hoon/ Reuters]

A court in Japan’s capital has upheld a ban on same-sex marriage but said a lack of legal protection for same-sex families violated their human rights.

Japan is the only G7 nation that does not allow same-sex marriage and its constitution defines marriage as based on the mutual consent of both sexes.

In Wednesday’s ruling, the Tokyo district court said the ban was constitutional but added that “the current lack of legal framework that allows same-sex partners to become family is a serious threat and obstacle” to individual dignity.

This creates an “unconstitutional situation”, the court said.

Nobuhito Sawasaki, one of the lawyers involved in the case, called the decision “a fairly positive ruling”.

“While marriage remains between a man and a woman, and the ruling supported that, it also said that the current situation with no legal protections for same-sex families is not good, and suggested something must be done about it,” he told the Reuters news agency.

Japan does not permit same-sex couples to marry or inherit each other’s assets, such as a shared home, and denies them parental rights to each other’s children – even hospital visits can be difficult. Though partnership certificates from municipalities cover about 60 percent of Japan’s population, they do not give same-sex couples the same rights enjoyed by heterosexual couples.

The Tokyo ruling promises to be influential as the capital has an outsized influence on the rest of Japan.

It had been keenly awaited after hopes were raised by a 2021 ruling in the city of Sapporo that the same-sex marriage ban was unconstitutional, although another decision in Osaka in June upheld the ban.

Plaintiffs hold placards that read read "A step towards Marriage Equality".
Japan is the only G7 nation that does not allow same-sex marriage [Kim Kyung-Hoon/ Reuters]

The eight plaintiffs in the Tokyo case had said the ban contravened their human rights and demanded damages of 1 million yen ($7,215), which the court rejected.

“This is hard to accept,” said Gon Matsunaka, head of the activist group Marriage for All Japan.

Both heterosexual and same-sex couples should be able to benefit equally from the system of marriage, as everyone is equal under the law, he added. “It [the ruling] clearly said that is not possible.”

Yet the recognition that same-sex families lacked legal protections was “a big step”, he said.

‘This is just the beginning’

The plaintiffs, who unfurled a banner outside the court that read “A step forward for Marriage Equality” after the ruling, said they were encouraged.

“There were parts of this that were disappointing but parts of it gave me hope,” said one of them, Katsu, who gave only his first name.

Two more cases are pending in Japan and activists and lawyers hope an accumulation of judicial decisions supporting same-sex marriage will eventually push legislators to change the system, even if this is unlikely to happen soon.

Prime Minister Fumio Kishida’s conservative ruling party has revealed no plans yet to review the matter or propose changes but several senior members support same-sex marriage.

Plaintiff Chizuka Oe said she hoped Wednesday’s ruling would spur a debate in the Japanese parliament.

“I was glad that the ruling acknowledged we have a right to be families,” she told a news conference, adding that her partner of more than 20 years “is my invaluable family no matter what anyone says”.

Oe said the fight would continue until there was real progress. “This is just the beginning,” she said.

Supporters hold a banner that says 'Marriage for all Japan'
Supporters wait outside the court for the ruling on the constitutionality of same-sex marriage, in Tokyo, Japan, November 30, 2022 [Kim Kyung-Hoon/ Reuters]

Amnesty International also called the Tokyo court’s acknowledgement of the rights of same-sex couples to have families as “a cause for hope”.

“This is not the ruling the LGBTI community wanted, but it is still an important step forward for same-sex couples and LGBTI rights in Japan,” said Amnesty’s East Asia Researcher Boram Jang. “Nevertheless, much more needs to be done to combat the discrimination faced by LGBTI people in Japanese society. It is time for the government to change course on LGBTI rights.”

Recent years have seen Japan take small steps towards embracing sexual diversity.

Tokyo began issuing certificates recognising same-sex couples this month, allowing them to apply for public housing in the same way as married couples, enjoy access to medical data and be named beneficiaries in car and life insurance. Since 2015, more than 200 smaller towns have taken similar steps but they are not legally binding and still not the same as in marriage.

The situation has limited the talent pool for global firms, say groups such as the American Chamber of Commerce in Japan.

“Thinking about the future of their lives, they don’t see anything in Japan,” said Masa Yanagisawa, head of prime services at bank Goldman Sachs and a member of the group Marriage for All Japan.

“So they move to more friendly jurisdictions, like the United States.”

The Tokyo court ruling came a day after the US Senate passed a same-sex marriage protection bill and Singapore lifted a ban on gay sex but limited the prospects for legalising same-sex marriage.

Source: Al Jazeera and news agencies