Japanese court rules gay marriage ban ‘unconstitutional’ in landmark decision
A Japanese district court has ruled that the government’s refusal to recognize same-sex unions is unlawful. This is the country’s first judicial decision on gay marriage.
The ruling poses a challenge to Japan’s constitution. Constitution defines matrimony as being based on “the mutual consent of both sexes.” The wording has been interpreted as only allowing marriage between a man and a woman. However, currently same-sex partners are barred from inheriting each other’s assets. They also have no parental rights to any children their partners may have.
The Sapporo District Court concluded that preventing same-sex couples from receiving the legal benefits of marriage cannot be justified because sexuality, like race and gender, is not a matter of preference. Arguing that the ban was discriminatory, the court ruled rights and privileges granted under marriage should “equally benefit both homosexuals and heterosexuals.”
Same sex partners can currently get partnership certificates only
However, the court rejected a demand for remuneration by the six plaintiffs in the case – two couples of men and one of women. The couples had asked for one million yen ($9,160) each from the Japanese government as compensation for the emotional distress they suffered by not being able to legally tie the knot.
Currently, same-sex partners can only receive partnership certificates. That can help with renting property and ensuring hospital visitation rights. The court’s ruling, the first judicial decision on the legality of the marriage ban, has been described as a major turning point for gay rights in Japan. The decision may set a precedent. Four other courts around the country consider similar cases.
It is fair to say that we might see changes in Japanese laws regulating marriage. Japan is just a small step away from becoming another country recognizing gay marriage! LGBTQ rights in Asia might be advancing in the right direction. And faster than it is happening in Europe at the moment. Let’s celebrate another victory!
Although it has a more liberal stance on homosexuality than many of its Asian neighbors, Japan is still far more conservative than the West. In 2019, the country’s supreme court rejected the case of a trans man who wanted to be legally recognized as such without undergoing sex reassignment surgery, which includes sterilization.
Trans people must surgically change sex before legal recognition – top Japanese court
The Supreme Court of Japan has rejected the case of a trans man who wanted to be legally recognized as such without undergoing sex reassignment surgery, which includes sterilization.
The current legislation regulating the path for legally changing a person’s sex was adopted in 2003 and has strict requirements. To qualify, a person must be at least 20, unmarried, and have no underage children. He or she must also undergo surgery to reconstruct his or her genitals to match the preferred sex. That involves removing the original sex glands – effectively, sterilization.
The Supreme Court passed a ruling on the case of Takakito Usui. He wanted to be legally recognized as male without losing reproductive ability.
“The law is not fit to cover all cases because the circumstances surrounding people dealing with gender identity issues are widely varied.” Takakito explained back in 2017. “I hear some people who underwent operations came to regret them.” On the other side, one might ask obvious question about his commitment. His unwillingness to undergo sex change operation means that he is not quite sure about what gender he wants to be.
The essential thing should not be whether you have had an operation or not, but how you want to live as an individual.
“To prevent social confusion”
The four-member court, however, ruled that the law does not violate the nation’s constitution. Presiding justice Mamoru Miura said the legislation was designed to prevent the social confusion. Confusion is bound to arise once gender-switching people start giving birth or fathering children.
Two of the justices said in their opinions that the law may eventually be successfully challenged. It violates the constitutional right to not be physically harmed has merit. The issue also has an impact on society, they said.
“Suffering related to gender, felt by people with gender identity disorder, is also the problem of society as a whole, which should encompass the diversity of sexual identity,” the additional opinion said.
Medical technology today is limited in how much a human body may be changed to conform with the preferred sex of an individual. One cannot be born with a male body and have it transformed into a female body capable of childbirth, or vice versa. Many advocates of LGBT rights say people must be allowed to choose their legal sex regardless of physique.
The requirement for trans people to undergo surgery to have their transition legally recognized is not unique to Japan. Similar requirement are in place in some European countries, although LGBT groups are working on challenging such laws.