Japan’s Debate Over LGBTQ+ Rights: The Courts

Japan’s debate over LGBTQ+ rights has come to the fore in the past several years, and both the courts and the Diet have been venues for social change. Between 2019 and 2021, a group of LGBTQ+ couples backed by the advocacy group Marriage for All Japan filed six cases in courts throughout Japan, arguing that their constitutional rights had been violated due to their inability to get legally married. By the summer of 2022, only two cases had reached verdicts, with Sapporo’s District Court coming out in favor of same-sex marriage and the Osaka District Court supporting the status quo. The future of same-sex marriage in Japan seemed uncertain. But since then, more verdicts have come in, and developments from recent months suggest that Japan’s judiciary is coalescing in support of LGBTQ+ rights.

The initial complaint filed by the plaintiffs referenced multiple articles of the Japanese Constitution: Article 13 (the right to the pursuit of happiness), Article 14 (the right to equality under the law), and Article 24. Article 24 has two parts, and this is particularly important for the plaintiffs: the first clause of Article 24 states that marriage should be based on the “mutual consent of the sexes” while the second clause states that laws on marriage must be enacted “from the standpoint of individual dignity.”

Legal momentum picked up in the second half of 2022. On November 30 of that year, the first of two Tokyo cases was decided in favor of the plaintiffs. Though the court did not go so far as to say that the legal ban on same-sex marriage is unconstitutional, it ruled that the absence of a system for same-sex couples to become families is unconstitutional. That is, the court argued that same-sex couples need to be given the same rights and protections as heterosexual couples. Though this ruling does not indicate support for marriage equality, it does, argue that the status quo violates the rights of the LGBTQ+ community.

On May 30 and June 8, 2023, respectively, courts in Nagoya and Fukuoka released rulings on their cases. The Nagoya court argued that the legal ban on same-sex marriage goes against two clauses of the constitution: first, it violates citizen’s  Article 14 rights to equality under the law. Second, it violates the second clause of Article 24, which states that laws on marriage must be enacted “from the standpoint of individual dignity.” The Fukuoka court, meanwhile, made the same argument as the above Tokyo ruling: that equal treatment must be achieved, but changing the marriage law does not necessarily have to be the method. The Nagoya verdict was particularly good for the LGBTQ+ community due to its reference to both clauses of Article 24 of the constitution.

The Sapporo verdict, groundbreaking though it was, focused entirely on Article 14. The Osaka court, meanwhile, used Article 24 as a justification for the constitutionality of the current system. The Nagoya court, however, directly contradicted Osaka’s verdict and set a precedent that the lack of same-sex marriage in Japan violates LGBTQ+ citizens’ Article 24 right to have their “individual dignity” respected.

The final court case – the second Tokyo filing– was decided on March 14, 2024, exactly five years and one month after the plaintiffs began their legal battle on Valentine’s Day 2019. This second Tokyo ruling went further than the first, declaring the legal ban on same-sex marriage to be unconstitutional and a violation of the second clause of Article 24 that the Nagoya ruling indicated. With this decision, all six of the courts had spoken: three courts ruled that the lack of same-sex marriage in Japan is in some way unconstitutional; two upheld the ban but argued that provisions must be made to ensure the rights of same-sex couples would be equal to those afforded to heterosexual couples. Only one of the six rulings found the legal ban on same-sex marriage is constitutional.

But the legal fight continues. Advocates in Sapporo appealed the district court decision following the ruling, and the Sapporo High Court issued its verdict on their appeal on March 14, 2024. This time, the Sapporo High Court ruled that the legal ban on same-sex marriage in Japan violates three clauses of the Japanese constitution: the right to equality under Article 14, and both clauses of Article 24. This ruling was an unprecedented victory for the plaintiffs as it ruled mostly in their favor. No court, however, was willing to rule that Article 13, the right to the pursuit of happiness, had been violated.

Japan’s courts support that the rights of same-sex couples are not protected under current law and that redress, through marriage or other protections, for their families is needed. Marriage for All Japan and the plaintiffs will continue to appeal their cases, and eventually, a Supreme Court decision is likely. What is less clear is how or when this judicial momentum will translate to national legislative change.

In the majority decision rulings for the five cases that ended in support of LGBTQ+ rights, the courts urged the national government to act and to draft legislation to amend the current legal system. Last summer, national lawmakers did discuss LGBTQ+ issues, but the bill fell short of addressing the rights at the heart of these judicial rulings. The law that passed the Diet on June 23, 2023, was called the Promotion of Public Understanding of Diversity in Sexual Orientation and Gender Identity Bill (性的指向及びジェンダーアイデンティティの多様性に関する国民の理解の増進に関する法律案), and it did not address same-sex marriage. Rather, the dynamics that led to that legislation were concerned less with equality under the law and more with the national and transnational activism of those for and against LGBTQ+ rights. A discussion of the legislature’s role in shaping LGBTQ+ rights in Japan will follow.