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The LGBTQ community last week hailed a groundbreaking decision by a district court in Japan that ruled the ban on same-sex marriage was “unconstitutional.” The joint lawsuit filed by three same-sex couples in Sapporo argued that not allowing same-sex unions violates Article 14 of the Japanese Constitution, which stipulates equality under the law.

Japan does not have legal protections for same-sex couples or laws that protect people identifying as LGBTQ from discrimination.

The presiding judge, Takebe Tomoko, dismissed the plaintiffs’ claim for ¥6 million ($54,000) in compensation for psychological damage but ruled that denying same-sex couples the legal benefits that come with marriage was “unreasonable discrimination.” While delivering the ruling Takebe rebuked the outdated view that homosexuality is a mental illness, saying, “It is well-established that sexual orientation cannot be changed at will.” It is the first legal precedent in Japan that explicitly refutes LGBTQ discrimination.

The ruling not only marks a significant milestone toward a more LGBTQ inclusive society but also provides a stepping stone to push the LGBT Equality Law ahead of the Tokyo Olympics and Paralympics. The LGBT Equality law prohibits discrimination on the basis of sexual orientation and gender identity.

On March 25, three advocacy groups — including one representing diversity in sports — presented a petition containing over 106,000 signatures calling for the ruling Liberal Democratic Party (LDP) to live up to the Olympic Charter, which bans gender and sexual discrimination.

The Sapporo District Court’s decision is the first ruling to come out of five lawsuits across the country calling for the civil code to be amended in favor of same-sex marriage. They were lodged by 13 couples simultaneously in Sapporo, Tokyo, Osaka, Nagoya, and Fukuoka district courts in February 2019. It could take several years before the Supreme Court can determine whether the Diet must amend the law to allow same-sex marriage. Nevertheless, the Sapporo ruling gives hope to same-sex couples and campaigners of sexual minority rights that change is on the horizon.

There are still many social obstacles that make it difficult to come out as gay, lesbian, or transgender to family, friends and colleagues. It is largely treated as a private matter due to conservative attitudes toward marriage and cohabitation. Rightwing lawmakers who seek to protect traditional family values have criticized LGBTQ activism as “destroying Japanese families.” Similarly, leftist groups oppose any change to Japan’s pacifist constitution, including adjustments to marriage law.

In Japan homophobic gaffes by lawmakers are all too common, a reminder of the political intolerance and the lack of understanding around gender diverse lifestyles. The LGBTQ community has been targets of public condemnation and at one stage a popular Japanese dictionary defined homosexuality as “abnormal.” In October last year a LDP lawmaker in Tokyo said the ward he represents would “perish” if sexual minorities are protected by law. Meanwhile, in 2018 LDP Lawmaker Sugita Mio described gay and lesbian couples as “unproductive” due to their “inability to bear children” and responsible for wasting public funding. Both lawmakers refused to retract their comments despite outrage by the LGBTQ community.

In 2009 Japanese nationals were given permission to get married in countries where same-sex marriage is legal, but the plaintiffs in Sapporo say they felt humiliated after trying to register their marriage with local authorities in January 2019 only to be denied on the grounds that same-sex marriage is not recognized in Japan. The lack of recognition leaves same-sex couples unable to inherit a partner’s assets and creates complications in securing housing, hospital visitation rights, access to a partner’s medical information in an emergency, spousal income tax deductions, and child custody rights.

A little headway has been made at the local level, with same-sex unions becoming recognized at 76 local governments and prefectures. Since Shibuya municipality in Tokyo first introduced same-sex partnership certificates in 2015 some 900 couples have signed up nationwide. The aim is to encourage real estate agencies, medical institutions, and companies to treat them the same way as heterosexual married couples. But these certificates are not legally valid and the certificates have been criticized for offering limited benefits.

The Sapporo lawsuit focused mainly on Article 14 of the constitution, but in other ongoing legal battles both the plaintiffs and the state are contesting the meaning of marriage. Japan’s constitution, which was enacted after World War II, stipulates under Article 24 that “marriage shall be based only on the mutual consent of both sexes.” The government argues that the term “both sexes” refers to male and female and the constitution does not allow for same-sex marriage. The government also claims that limiting marriage to heterosexual couples is a “rational distinction” rather than discrimination against same-sex couples. The state has reiterated that the system of marriage is designed for bearing children, which does not equate to discrimination based on sexual orientation.

On the other hand, the legal team for the plaintiffs argues that Article 24 “guarantees freedom of marriage as a right to all.” They reject the interpretation that the purpose of marriage is to raise children but argue it is rather to stabilize personal ties with a partner, which applies to both heterosexual and homosexual couples.

It remains to be seen whether the latest ruling will pressure lawmakers to adopt the LGBT Equality Law before the current Diet session ends in June, but it will undoubtedly push LGBT related bills to the top of the national agenda in the coming future.

Thisanka Siripala is an Australian-Sri Lankan cross platform journalist living in Tokyo. ©Copyright 2021, The Diplomat

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