Last fall, Ai Nakajima, 40, tied the knot in Germany with her long-time partner, Kristina Baumann, a 32-year-old from Berlin. But in Japan, where they live, Nakajima and Baumann share the fate of all same-sex couples in committed relationships — the denial of the right to formally marry their partners.
The two will be among 13 LGBT couples to file lawsuits nationwide against the government on Valentine’s Day on Thursday demanding that same-sex marriages be made legal — the first legal action of its kind in Japan.
They are claiming the denial of marriage rights is unconstitutional.
Baumann, who hails from a country with more progressive rights for lesbian, gay, bisexual and transgender people, hopes the lawsuit will help grow awareness and create greater inclusion of the LGBT community in broader Japanese society.
“I want the Japanese people to notice that many LGBTQ people are part of society. Many haven’t yet come out and many struggle in relationships considered illegal,” Baumann said in fluent Japanese. “Of course, if we can get married legally someday, that would be super. But first, the society needs to change.”
In January, Nakajima and Baumann submitted marriage registration documents to their local Yokohama ward office only to get their papers sent back with an official rejection notice.
“The marriage registry application where both applicants are women is unlawful,” the notice said.
No actual law on the books
Technically no laws in Japan prohibit same-sex marriage. But past governments have interpreted the Constitution to mean that same-sex marriages are illegal, leading municipalities that actually handle administrative documents to reject such applications.
Article 24 of the supreme law stipulates that marriage shall be based on the mutual consent of “both sexes.” Referring to that clause, Prime Minister Shinzo Abe said in 2015 that “the Constitution doesn’t envisage marriage between people of the same sex.”
However, Shuhei Ninomiya, a professor at Ritsumeikan University who specializes in family law, claims that the government’s stance is a misinterpretation of the Constitution.
“The Constitution doesn’t state that marriage is an accord ‘between people of both sexes,’ it only says that it must be a consensual decision by both parties,” Ninomiya wrote in an email.
These rights weren’t guaranteed under the former Meiji Constitution, which stated that marriage shall not be lawful without the consent of the head of the household, he said. Same-sex marriage wasn’t envisioned at the time when the current Constitution was drafted, he added.
Japan’s reluctance to recognize same-sex marriage, Ninomiya said, may be associated with the idea that having kids and child rearing are integral aspects of marriage.
He argues, however, that if the law grants economic benefits, social security and a sense of stability to opposite-sex couples through marriage, same-sex couples should be granted the same.
Luckily, Nakajima and Baumann haven’t struggled to gain social acceptance. Nakajima, who works for a Tokyo-based cryptocurrency firm, and Baumann, who moved to Japan to live with Nakajima in 2013, have allies among family members, co-workers and friends in their fight for equality. Baumann, who is studying game design, hopes to join a gaming firm in the future.
The two obtained a partnership certificate in Germany and officially got married last September in Berlin. They chose to settle in Yokohama, where they live with two cats and a dog.
But they worry that the absence of civil partnership laws in Japan will severely affect their future and say that the lack of equal marriage rights affects their daily lives when it comes to legal paperwork.
“It’s hard to plan ahead for the future,” Nakajima said in a recent interview with The Japan Times at her Yokohama home. For example, Nakajima ran into legal roadblocks when she attempted to make Baumann the beneficiary on her life insurance policy because she didn’t have anything to prove that they were in a committed relationship.
Although municipalities across Japan have been issuing partnership certificates to LGBT couples since 2015, Yokohama is not one of them. But even with such a certificate, Baumann wouldn’t be granted a spousal visa — the status provided to foreign spouses of Japanese nationals — under existing laws.
“In Japan, people in gay relationships are not legally recognized as a couple, hence they can’t qualify for tax deductions for dependent family members, can’t be added on health insurance programs and they struggle with jointly buying a house or taking out loans,” Nakajima said. “Quite often we have more paperwork to do than those who are legally married.”
Ritsumeikan University’s Ninomiya says the current law deprives LGBT couples of inheritance rights when their partner dies, limits access to the nation’s social security programs and limits access to their partner during a health emergency.
Same-sex partnership certificates, issued by nine municipalities nationwide, don’t guarantee those rights on equal terms as those given to couples of the opposite sex.
But the couple are hopeful that the law will eventually be revised to recognize their marriage.
“The system should be adjusted to the current needs of the society, as rules created 20 years ago or even earlier just don’t apply,” Nakajima said.
By suing the government, Nakajima hopes it will ease the woes of international couples in same-sex relationships, including those who, like themselves, have wed overseas but live in Japan.
Different circumstances
The lack of legislation allowing same-sex marriage doesn’t only affect those who want to tie the knot in Japan. It also affects the lives of people who already have.
The case of Elin McCready, a 45-year-old American living in Tokyo, shows that even a valid marriage can be called into question when an individual comes out as transgender. Last year, McCready, who is not a plaintiff in the planned lawsuits, changed her gender — from male to female — after 19 years of marriage.
But her transition has caused confusion among bureaucrats here.
The government is at an “impasse with our case,” she told The Japan Times.
McCready initially renewed her passport and residential card for foreign residents under her new name and gender without a problem. But when McCready reported the changes to her local municipality, as required by law, ward officials refused to revise the residency registration form, citing the fact that both McCready and her wife, Midori, checked the “wife” category.
“The entire barrier to completing this paperwork process is the nonexistence of same-sex marriage” certificates, McCready lamented.
McCready has lived in Japan since the 1990s and has a well-established career as a professor of linguistics at Aoyama Gakuin University in Tokyo. The couple, who have three sons, plan to stay married.
“They either have to dissolve our marriage … or they have to give us married status,” which would be unprecedented, she said.
Unlike couples fighting for recognition of same-sex marriages, “for us … it’s like ‘don’t take away what we already have,'” McCready said.
In October her case was sent to the internal affairs ministry and the authorities proposed — to McCready’s dismay — to enlist the couple as enkosha, a Japanese term used to describe distant relatives and other relations difficult to define.
With incomplete resident registration procedures, McCready can’t renew her health insurance policies. By early summer, she will need a copy of her residency certificate to move into a new home, and it’s making her jittery.
McCready worries she’s been put into a position where “technically I’m in continuous violation of the law.”
