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

A Japanese court has ruled that not allowing same-sex marriage is unconstitutional, a landmark decision that could herald a new era for marriage equality in the country.

It’s the first time that a court has ruled on the constitutionality of same-sex marriage in Japan, the only Group of Seven (G7) country that has not recognized either same-sex civil unions or same-sex marriage.

The case began in 2019, when three couples in Hokkaido prefecture filed a lawsuit claiming 1 million yen (about $9,160) in damages each for the psychological harm caused by the government not allowing same-sex marriage.

Japan does not recognize same-sex unions nationwide, although some parts of the country issue “partnership certificates” that grant some rights benefiting heterosexual couples to same-sex couples.

Sapporo District Court in Hokkaido ruled Wednesday the government’s lack of recognition for same-sex marriage was in breach of a section of the constitution that requires equal laws for everyone.

But the court dismissed the couples’ claims for damages.

The three couples were among a number across Japan that are suing the government, arguing that the current law on same-sex marriage was in breach of their constitutional rights, and they should be afforded the same legal rights and privileges as heterosexual couples.

Wednesday’s ruling is the first verdict in those ongoing cases.

“Today’s ruling recognized that we actually exist,” said a plaintiff known by the pseudonym Takashi. “I want a society where sexual minorities have hope and a choice in their future.”

Kanae Doi, Japan director for non-profit Human Rights Watch (HRW), said the ruling alone would not legalize same-sex marriage in the country – that would need a Supreme Court ruling, which could take several years.

Alternatively, Japan’s legislature, the Diet, could pass a law making same-sex marriage legal, although there is almost no appetite among the ruling party to do so, she said.

But Wednesday’s “landmark” ruling was still significant as it was a step towards legalizing same-sex marriage, she said.

Takeharu Kato, the plaintiffs’ lawyer, said he was also moved by the verdict. “I never expected the court would rule this clearly,” he said in a news conference, adding that the plaintiffs are now considering taking the case to a higher court.

The law in Japan

Homosexuality has been legal in Japan since 1880, and the country is relatively liberal compared with some other Asian nations. Only one place in Asia has legalized same-sex marriage – Taiwan.

Two Tokyo wards passed an ordinance in 2015 that allowed same-sex couples to get “partnership certificates” giving them some of the same rights as married heterosexual couples. Since then, dozens of municipalities have passed ordinances unofficially recognizing same-sex relationships, although they don’t offer the same level of legal rights as heterosexual marriages.

But activists say Japan’s LGBTQ community still faces prejudice and the country hasn’t yet enacted a national anti-discrimination law that would protect LGBTQ people from discrimination. According to Doi, people have been fired from their jobs because they are gay.

HRW, along with LGBTQ organizations, has been calling on Japan to adopt an Equality Act ahead of the Tokyo 2021 Olympics.

“Japan is very, very backward in terms of legislation relating to LGBT people,” said Doi from HRW. “This landmark decision (on Wednesday) is going to pressure those opposing the LGBT Equality Act.”