Greetings from Japan, the only G7 country without any country-wide protections for LGBTQIA+ rights or recognition of LGBTQIA+ relationships. Many visitors to Japan often find this fact to be a surprising contrast to Japan’s progressive and technologically advanced image. Unfortunately, the journey towards equality in Japan is stuck on the slow local train, instead of the shinkansen bullet train. In honour of Pride month, I’m focusing on a few positive developments which should serve as sources of pride.
I have lived in Japan for 15 years, and take particular pride in being part of the equality movement here. Having worked on legal cases concerning marriage equality and other LGBTQIA+ causes in Canada and the US, I wanted to share my expertise with my beloved Japan. This led me to meeting other like-minded legal professionals and, ultimately, to co-founding LLAN (Lawyers for LGBT and Allies Network) seven years ago. Since LLAN’s inception, I have served as its co-Chair and am responsible for multiple projects, particularly focusing on marriage equality.
When LLAN was established seven years ago, we were among only a handful of Japanese NPOs focused on achieving full equality. Today, marriage equality is a key objective of the wider equality movement, epitomized in the 2023 Tokyo Rainbow Pride’s slogan of “Press on till Japan changes”. Indeed, change is in the air, with many positive developments at the local level, in courts, in the business world and, most importantly in the hearts and minds of everyday citizens.
More than half of local municipalities and a number of prefectures across the country (including, from late 2022, Tokyo prefecture) now offer civil partnership certificates to gay and lesbian couples. These certificates do not grant marriage-like rights or obligations (because marriage is the within the purview of the national government). However, they do provide some limited protections locally, as well as raise visibility and awareness of LGBTQIA+ families. Slowly but surely, the LGBTQIA+ community is starting to feel as if they are an integral part of Japanese society – from northern Hokkaido to southern Okinawa.
There have also been important developments in the Japanese courts. Most recently, on 30 May 2022, we celebrated a key landmark win in Nagoya, where the district court declared that the denial of marriage rights to lesbian and gay couples is unconstitutional. This decision follows a similar ruling by a Sapporo court in 2020. However, courts in Osaka and Tokyo have so far rejected similar claims. The question will likely ultimately be resolved by Japan’s notoriously conservative Supreme Court. LLAN has been working closely with the lawyers running these cases and has translated each decision into English (available on our website).
Importantly, these cases do not directly challenge the legal definition of marriage, unlike similar cases in other jurisdictions. Instead, the plaintiffs seek damages for the discriminatory treatment as LGBTQIA+ couples. While all courts have so far refused these claims for damages, the judges have found examples of discriminatory treatment under various Japanese laws to be compelling and, in many instances, unconstitutional.
Further, unlike in some countries (such as the US) the Japanese Supreme Court does not have the power to overrule unconstitutional laws. Therefore, even if it were to uphold the findings of unconstitutionality, the law would not change. Marriage equality therefore requires action by the national government. So far, the Japanese government has been reluctant to pass anti-discrimination laws protecting the LGBTQIA+ community, or even laws to merely promote understanding of LGBTQIA+ people. Despite the efforts of many opposition parties and some governmental allies, the ruling coalition does not seem ready or willing to extend equal treatment to lesbian and gay couples.
Another important development is that Japanese corporates have expressed their support for marriage equality. Working closely with the American and other Chambers of Commerce in Japan, LLAN drafted the Viewpoint for Marriage Equality, which was launched during our LLAN Gala in 2018 and has now been endorsed by over 125 companies. We borrowed the idea of the Viewpoint from the amicus brief filed by US corporates before the US Supreme Court supporting the Obergefell case for equal marriage. The Viewpoint is now part of the larger Business for Marriage Equality campaign in Japan, with the combined total endorsements nearing 400. I take particular pride in this achievement as I believe that the government will listen carefully to the growing chorus of corporate voices.
Additionally, there is now a majority of the Japanese population that supports marriage equality. Recent polls indicate that such support is over 70 per cent and growing. However, this strong support is yet to translate into governmental action.
Allowing LBGTQIA+ people to marry will only enhance societal harmony, strengthen families and ensure equal treatment under the law. It won’t take away any rights from anyone else. Denying equality undermines our dignity and our love. Love is love. LLAN will keep pressing on until marriage equality in Japan is a reality.
Alexander Dmitrenko is a dispute resolution partner in Ashurst’s Tokyo office.
