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21 Jun 2022

Japanese court rules same-sex marriage ban constitutional

The decision contradicts a 2021 ruling that the country’s ban on same-sex marriage is unconstitutional.

 

 

A district court in Osaka, Japan recently ruled that the country’s same-sex marriage ban is constitutional. While the ruling contradicts a March 2021 ruling by a Sapporo district court, it’s just the latest in the ongoing legal battle for LGBTQ rights in the country.
In its decision, the Osaka court ruled against a lawsuit involving three same-sex couples. The court wrote that government recognition of same-sex couples may bestow dignity on those relationships. However, the court ultimately ruled that denying such recognition doesn’t violate the country’s constitution, especially since the constitution only mentions marriage between different sexes and mentions no other legal pathway for same-sex marriage.
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Article 24 of the Japanese constitution specifically states, “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.”
However, LGBTQ advocates have also pointed out that the constitution’s other articles state, “The people shall not be prevented from enjoying any of the fundamental human rights,” and, “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.”
The plaintiffs in the Osaka case said that the judge offered no argument that the plaintiffs weren’t discriminated against and that his ruling left the larger discrimination and human rights issues unresolved. The plaintiffs have pledged to appeal.
Right now, Japan doesn’t offer national LGBTQ non-discrimination protections or same-sex marriage. As a result, LGBTQ people in Japan often face inequities in employment, housing, education, and health care.
More than 200 Japanese municipalities offer some form of recognition for same-sex couples. Such recognition can help same-sex couples rent apartments together, visit each other in city hospitals, and receive other services that married heterosexual couples enjoy.
LGBTQ advocacy groups have pushed for a national bill that would enshrine equal civil rights and non-discrimination protections into law. However, the conservative party of Prime Minister Fumio Kishida helped defeat the effort, in the lead up to last summer’s Olympic Games.
Japanese activists tell LGBTQ Nation that the fight for queer rights nationwide has stalled out in part because LGBTQ organizations are hesitant to partner with gay bars. Bars in Japan are suspiciously regarded as part of the mizu-shōbai (literally the “water trade”), the nightlife which sometimes has ties to yakuza (the Japanese mob), sex work, and other “immoral” types.
Sadly, as long as “legitimate” activists in Japan are reluctant to partner with the vibrant nightlife community, the same-sex marriage movement will have trouble getting substantial LGBTQ community and allied support.
Despite this, a 2013 study by the Pew Research Center showed that 54 percent of Japanese citizens believe that homosexuality should be socially accepted. Accordingly, 200 cities across Japan have begun offering certificates recognizing same-sex civil unions. Collectively, these municipalities represent 12 percent of the country’s total cities.
In March 2021, a Japanese court ruled that the country’s ban on same-sex marriage is unconstitutional. In 2019, another Japanese court ruled that trans people can no longer be banned from bathrooms.
However, Japan still has a long road ahead for full LGBTQ equality. In 2019, the Supreme Court of Japan ruled that all people having gender reassignment must be sterilized prior to surgery. Additionally, transitioning individuals must be unmarried, have no children under the age of 20, and must surgically transition in order to get their gender legally changed.

A district court in Osaka has ruled that Japan's same-sex marriage ban is constitutional.

The ruling contradicts a March 2021 ruling by a Sapporo district court, and marks a setback in the ongoing legal battle for LGBTQ rights in the country.

In its decision, the Osaka court ruled against a lawsuit involving three same-sex couples. The court wrote that government recognition of same-sex couples may bestow dignity on those relationships. However, the court ultimately ruled that denying such recognition doesn’t violate the country’s constitution as the constitution only mentions marriage between different sexes and mentions no other legal pathway for same-sex marriage.

The plaintiffs in this case are planning to appeal.

What's life like for LGBTQ people in Japan?

What’s life like for LGBTQ people in Japan? Let’s take a look at some of the key equality measures.

Is homosexuality legal in Japan?

Yes. Same-sex sexual activity has never really been addressed by Japan’s penal code.

Are there anti-discrimination protections in place for LGBTQ people in Japan?

Yes. Major cities have anti-discrimination provisions that protect against discrimination on the grounds of sexuality, but there’s not a comprehensive national framework.

Is there Marriage Equality in Japan?

No. Some city-level authorities have introduced partnership certificates which extend some legal recognition to same-sex relationships.

Japan’s constitution and civil code explicitly restrict marriage to opposite sex couples.

What’s life like for LGBTQ people in Japan?

While Japan can seem ultra-modern, underpinning Japan’s culture is a socially conservative and traditional view of the world.

Generally, Japan is fairly welcoming and accepting of LGBTQ people.

In larger cities, there is a visible LGBTQ community.

What’s the history of homosexuality in Japan?

Homosexuality and same-sex relations have been documented in Japan since ancient times.

In the pre-Meiji period, relationships inside Buddhist monasteries were typically pederastic. The older partner (the nenja) would be a monk, priest or abbot, while the younger partner (the chigo) would be an acolyte – an adolescent boy. The relationship would be dissolved once the boy reached adulthood or left the monastery. Both parties were encouraged to treat the relationship seriously and conduct the affair honourably, and the nenja might be required to write a formal vow of fidelity.

During the Tokugawa period, some of the Shinto gods – especially Hachiman, Myoshin, Shinmei, and Tenjin – came to be seen as guardian deities of nanshoku (male–male love).

Same-sex sexual activity was also common among the samurai – the warrior class. Among the samurai, it was customary for a boy in the wakashū age category to undergo training in the martial arts by apprenticing to a more experienced adult man. The relationship was based on the typical nenja, who loves, and the typically younger chigo, who is loved. The man was permitted, if the boy agreed, to take the boy as his lover until he came of age. These relationships were expected to be exclusive, with both partners swearing to take no other lovers.

Miyamoto Musashi – a legendary swordsman of the samurai era – is one of the most famous practitioners of the same-sex warrior lover tradition.

As Japan progressed into the Meiji era, same-sex practices continued. However, there was a growing animosity towards these practices. The practice of nanshoku began to die out after the Russo-Japanese War. Opposition to homosexuality did not become firmly established in Japan until the 19th and 20th centuries, through the Westernisation efforts of the Empire of Japan.

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