January 27, 2023

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Japanese court rules banning same-sex marriages constitutional, but activists see a silver lining

A court in Tokyo on Wednesday ruled that a ban on same-sex marriages was constitutional but said the lack of legal protections for same-sex families violated their human rights, in what plaintiffs hailed as a step to align Japan with other G7 countries.

Japan is the only G7 nation not to allow same-sex marriage, and its constitution defines marriage as “based on the mutual consent of the sexes”. Prime Minister Fumio Kishida’s ruling party has not yet announced any plans to review the matter or propose legislation, although several senior members support same-sex marriage.

Wednesday’s Tokyo District Court decision said that while the ban is constitutional, the lack of a legal system to protect same-sex families constitutes a violation of their human rights.

“It’s actually a pretty positive ruling,” said Nobuhito Sawasaki, one of the attorneys involved in the case.

“While marriage is between a man and a woman, and the ruling supported that, it also said the current situation with no legal protections for same-sex families was not good and suggested something needed to be done about it,” he said .

The Tokyo ruling, already influential due to the capital’s outsized influence over the rest of Japan, had been eagerly awaited as a 2021 ruling had sparked hopes in the city of Sapporo when it found the ban on same-sex marriage unconstitutional, during one in Osaka in June found the opposite.

Japan currently does not allow same-sex couples to marry or inherit each other’s assets, such as a house they may have shared, and does not give them parental rights over each other’s children.

Although municipal partnership charters now cover about 60% of the population in Japan including Tokyo, they do not grant same-sex couples the same rights as heterosexual couples.

The eight plaintiffs involved in the case said the ban violated their human rights and are seeking 1 million yen ($7,200) in damages, a claim the court denied.

But the group, who unfurled a banner outside the courthouse reading “A step forward for marriage equality” after the verdict was read, said they were encouraged.

“There were parts of it that were disappointing, but parts of it gave me hope,” said Katsu, a male plaintiff, who gave only his first name.

The decision came a day after the US Senate passed legislation protecting same-sex marriages and Singapore lifted a ban on gay sex but curtailed prospects of legalizing same-sex marriages.

Two other cases are pending in courts in central and western Japan, and activists and advocates are hoping that a spate of court decisions supporting same-sex marriage will eventually pressure lawmakers to change the Japanese system, though that’s unlikely to happen any time soon .

The situation has limited the talent pool for international companies – a situation that groups like the American Chamber of Commerce in Japan have pointed out and are calling for change.

“When you think about the future of your life, you don’t see anything in Japan. So they’re moving to friendlier jurisdictions like the United States,” said Masa Yanagisawa, head of prime services at Goldman Sachs and a member of the activist group Marriage for all Japan.

“We invested in the person to have a managerial role, but then they move… All that talent leaves the country because of the welfare system.”