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Revellers at the 2017 Tokyo Rainbow Pride parade in Tokyo’s Shibuya district. Photo: AP

Japanese LGBT couples will file Valentine’s Day lawsuits demanding gay marriage be made legal

  • The couples will file suits on February 14 in at least four cities, including Tokyo, claiming the government is violating their constitutional rights
  • Japan’s laws on LGBT rights are relatively liberal compared with many Asian countries but being openly gay remains largely taboo

How close is Japan to legalising same-sex marriage? That complicated question may be partially answered, perhaps fittingly, on Valentine’s Day.

On February 14, at least 13 same-sex couples will file coordinated lawsuits in district courts across Japan. The couples will seek damages over claims that the national government and most local authorities had violated their constitutional right to equality.

The legal action will be the first of its kind in Japan, and its organisers have timed it for maximum publicity. Gay rights activists accuse Japan of lagging behind other countries on LGBT issues, pointing out it is the only member of the G7 – representing the world’s largest advanced economies – that does not recognise same-sex unions.

“The constitution gives you the right to pursue happiness and equality before the law,” said Yoshie Yokoyama, one of the group’s lawyers. “Not recognising same sex marriage violates this.”

It’s not the first time the fight has entered the legal realm: in 2015, more than 450 people applied to the Japan Federation of Bar Associations to protect their human rights and push to make same-sex marriage legal.

I think that the next country in Asia to achieve marriage equality will be Japan
Ken Suzuki, law professor

The situation has intensified in Japan since last month when voters in Taiwan, once seen as a beacon of LGBT rights, rejected a proposal to rewrite the island’s civil code to allow same-sex marriage. Voters also adopted a ban on teaching “homosexual-related topics” at primary and junior high schools.

The vote was seen by many as a setback for the LGBT movement in Asia, alongside anti-LGBT demonstrations in Indonesia and continuing prohibitions in Singapore and Malaysia. Even so, Ken Suzuki, a law professor at Meiji University and the organiser of the February 14 lawsuits, has hope for Japan. He said going to the courts was necessary “to realise the equality of marriage in Japan as soon as possible”.

“The approval system for same-sex partnerships started in Japan in 2015 and have been implemented in nine cities across the country so far, with more than 300 same-sex couples registered,” Suzuki said, referring to a system of “partnership ordinances” that has been adopted by some local governments, such as in Shibuya and Setagaya Wards in Tokyo.

“[Marriage equality] is already a global trend and this affects Japan as well. The government will not be able to ignore the trend of the times. I think that the next country in Asia to achieve marriage equality will be Japan.”

Issue divides government

Same-sex marriages are not explicitly banned under Japanese law but the matter has been long debated by legal scholars. Article 24 of the 1947 Constitution 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”.

Japanese governments have usually interpreted that to mean marriage shall be between people of different genders. As a result, most municipal governments, which register marriages, refuse to accept the paperwork required to file a marriage between same-sex couples. Yet nine Japanese cities have adopted the partnership ordinances and five more cities are planning for similar systems in the year ahead.

Rights campaigners agree this is a positive step but some argue the ordinances do not guarantee equal legal treatment of same-sex couples on matters such as inheritance and tax deductions.

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The February 14 lawsuits will argue Article 24 should be interpreted to mean marriage should be based only on the mutual consent of the two partners and should not, therefore, prohibit same-sex unions. The lawsuits will also point out that the government has failed to modernise the nation’s legal system to reflect changes in society.

Most opposition parties appear to be in favour of same-sex unions but the governing Liberal Democratic Party (LDP) has written that marriage is “based on the agreement of both sexes”.

The LDP said in a 2016 statement: “Same-sex couples are not supposed to be allowed to establish a marriage under the existing constitution or for the constitution to acknowledge same-sex marriages. Whether we should consider revising the constitution is a problem related to the foundation of the family and we believe that it is necessary to give the issue extremely careful consideration.”

‘A personal and private issue’

A 2017 poll by national broadcaster NHK showed 51 per cent of respondents supported same-sex marriage. Other polls suggest Japanese society might be changing: a 2015 survey by the Fuji News Network found 72 per cent of respondents aged 20 and under supported gay marriage. In the same poll, only 24 per cent of people 70 and over supported it.

Traditionalists in Japan have said the concept of same-sex unions “does not comply with Japanese tradition”. Others have said the practice will accelerate the decline in Japan’s birth rate.

In a high-profile episode in July, Mio Sugita, an LDP lawmaker, questioned whether same-sex couples should receive the same financial support as other citizens. She called them “unproductive” because they cannot have children.

“Homosexuals are also people with equivalent moral values,” Suzuki said. “Therefore, they should also have the same rights as other families. Refusing to allow gay people to be legally married reinforces discrimination against homosexuals and strengthens the stigma that we face.”

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Alexander Dmitrenko, a lawyer in Tokyo and a member of the Lawyers for LGBT Allies Network, said the campaign for gay equality has been slow in Japan for several reasons.

“There are not many outspoken gay couples in Japan,” he said. “Homosexuality is still a very personal and private issue and few are willing to be open about it. There is a reluctance to rock the boat or to talk about personal issues.

“Japan has never really had an Elton John or an Ellen DeGeneres as a public figure whose sexuality is irrelevant.”

Dmitrenko, a Canadian whose partner is Japanese, added that the Japanese judiciary is rarely willing to “implement changes or defend minorities”.

“But, in truth, we are only asking for equal treatment that is provided to same-sex couples,” Dmitrenko said. “It’s important that we are seen as individuals, to have respect for our identities and not to have to hide who we are.”

While gay marriage is illegal in Japan, in some areas couples can get a certificate that grants them similar rights to married couples. Photo: AFP

Global reputation

Japan’s lack of progress on LGBT rights might even be hurting its economy. In August, the American Chamber of Commerce in Japan called on companies and the government to support the recruitment and retention of talent by introducing marriage equality in Japan.

It said Japan has become a less attractive option for LGBT couples at a time when Japan should be doing everything to attract the brightest talent.

“Japanese society is already moving in the direction of recognising the freedom to marry,” the American Chamber wrote. “Legislating the requisite changes would result in concrete benefits for the LGBT community, for all companies doing business in Japan and for Japanese companies doing business abroad.

We need society to treat us equally and with respect and dignity
Alexander Dmitrenko, Lawyers for LGBT Allies Network

“It would also positively impact Japan’s reputation on the world stage, which would further benefit the country’s overall economic competitiveness.”

Ai Nakajima is one of the February 14 plaintiffs. She and Kristina Baumann married in Germany last year but were unable to register their same-sex marriage in Yokohama city, near Tokyo. This means Nakajima cannot apply for a visa for Baumann, who fears being deported if she fails to find work after her studies.

“There are many international Japanese same-sex couples, but since there is no law to recognise and protect our relationship, there are many people who choose to not live in Japan even if they want to,” Nakajima said.

Dmitrenko agreed gay couples were avoiding Japan because of the lack of legal recognition, such as spousal visas for same-sex couples. Instead, many opt for Asian destinations with more forward-thinking regulations on same-sex marriages, such as Hong Kong.

Even so, Dmitrenko is optimistic the February 14 legal challenges will help to bring change to Japan.

“I am hoping that these cases will push the issue forward as a talking point,” he said. “The most beautiful thing in the world is to fall in love and be loved back. We need society to treat us equally and with respect and dignity.”

Additional reporting by Thomson Reuters Foundation

This article appeared in the South China Morning Post print edition as: Valentine’s Day legal fight for same-sex marriage