An American Japanese LGBTQ couple filed a lawsuit Monday against the central and local governments, arguing that their refusal to recognize the true nature of their marriage after one of them underwent gender transition in 2018 is unconstitutional.
Elin McCready, 47, and Midori Morita, 51, filed a lawsuit with the Tokyo District Court against the state as well as Tokyo’s Meguro Ward, where they used to live, and Ota Ward, their current place of residence. Both municipalities have refused to recognize McCready's gender transition due to the legal status of same-sex marriages in Japan. The couple is seeking ¥2.2 million in damages for emotional distress.
The couple got married in 2000 in Japan and have three children. In 2018, McCready changed her gender in the United States, changed her name and received new documents confirming her gender as female. But the couple has faced bureaucratic challenges and the possibility of losing legal benefits as a married couple.
McCready, who teaches linguistics and philosophy at Aoyama Gakuin University in Tokyo, said the government should rethink its definition of marriage as a result of “mutual consent of both sexes” — a term that’s preventing same-sex marriage from becoming legal.
“Anyone around us has been supportive and only the state won’t give us support,” she told a news conference Monday. “I can’t completely understand why a family like ours, which is different from opposite-sex couples, can't be recognized as a family. I’d like to know why the government refuses to accept us.”
“When we moved (to another ward), we both marked ‘female’ on our documents we submitted to Ota Ward, and seeing Elin being made to return the application with a change to her gender to ‘male' made me cry,’” Morita said tearfully.
Toshimasa Yamashita, an attorney representing the plaintiffs, argues the state’s refusal to recognize their status is unconstitutional.
The lawsuit follows a landmark court ruling handed down by the Sapporo District Court in March, siding with couples who claimed the government was violating Article 14 of the Constitution, which ensures the right to equality. The ruling described the government's failure to implement legal measures to offer equal marital benefits to same-sex couples as “discriminatory."
With the Sapporo court ruling, Yamashita believes the government’s argument is losing its ground.
“Both of them are already married,” said Yamashita who accompanied the couple at Monday’s news conference. “We want the government to use (this lawsuit) as an opportunity to review its (stance on same-sex couples).”
Yamashita also said that the pair’s plight has implications for the identity of LGBTQ people.
“I want the government to reconsider the importance and gravity of their situation and let them be themselves … and to make a decision that will help those who are suffering because of the status quo.”
Japan is the only Group of Seven member that does not fully recognize same-sex partnerships.
More than 20 nations including the U.S. and European countries already recognize same-sex marriage and equal rights for sexual minorities such as lesbian, gay, bisexual and transgender people.
Officials at the local governments who dealt with McCready and Morita’s case suggested replacing McCready’s gender with the word "enkosha," which refers to distant relatives or difficult-to-describe relations.
Under the law, Japanese nationals are not allowed to change their gender during marriage, since it would transform the union into a same-sex marriage, which is not allowed in Japan.
But McCready’s case is unique in the sense that the government could not prohibit her gender transition due to her being a foreign national, the lawyers said.
If McCready’s case is not recognized as marriage, the pair might be denied spousal benefits related to the national health care program and pension, or experience bureaucratic problems due to document mismatches, Yamashita said.
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