Japan's denial of same-sex marriage, other LGTBQ2S+ protections looks unconstitutional, judge rules

Lawyers unfurl a banner, which reads 'Marriage freedom for all,' before a ruling outside the Fukuoka District Court in Fukuoka, southern Japan Thursday, June 8, 2023. (Kyodo News via AP)

TOKYO -

A Japanese court ruled Thursday that the lack of legal protections for LGTBQ+ people appeared to be unconstitutional, in the latest ruling that may help push the country toward allowing same-sex marriage.

Japan is the only member of the Group of Seven nations without LGTBQ+ legal protections. Support for legalizing same-sex marriage has grown among the Japanese public, but the governing Liberal Democratic Party, known for its conservative values and reluctance to promote gender equality and sexual diversity, is virtually the main opposition for marriage rights and other recognition of LGTBQ+ equality.

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The ruling by the Fukuoka District Court in southern Japan involved the last of five court cases brought by 14 same-sex couples in 2019 that accused the government of violating their equality. Four of the courts have ruled Japan's current policy is either unconstitutional or nearly so, while a fifth said a ban on same-sex marriage was constitutional.

The judge in the Fukuoka case, Hiroyuki Ueda, ruled that "the current situation that excludes same-sex couples with no legal step to become families is in unconstitutional state." The phrase means the judge found it is not an outright violation of the constitution but close to it.

The ruling, coming during Gay Pride Month, said legalizing same-sex marriage is an international trend and that the United Nations' human rights committee has repeatedly urged Japan to address discrimination against same-sex couples. It noted a growing public acceptance for same-sex marriage.

The judge, however, rejected demands by three same-sex couples that the government pay them 1 million yen ($7,155) each in compensation for the discriminatory treatment they face because they cannot be recognized as legally married couples.

Supporters cheered outside the court, waving rainbow flags and holding signs saying "Unconstitutional" and "Quick passage of law at parliament!"

One of the six plaintiffs said he does not expect the government to act immediately and he will keep raising voice to achieve equality.

Rights activists say Japan's conservative government has stonewalled a push for equal rights that is largely supported by the public. Support for LGBTQ2S+ people in Japan has grown slowly, but recent surveys show a majority of Japanese back legalizing same-sex marriage and other protections. Support among the business community has rapidly increased.

Prime Minister Fumio Kishida has said that allowing same-sex marriage would change Japanese society and values and requires careful consideration. He has not clearly stated his view as some members of his party object to legislation forbidding discrimination against LGBTQ2S+ people.

LGBTQ2S+ activists and their supporters have increased their efforts to achieve an anti-discrimination law since a former Kishida aide said in February that he wouldn't want to live next to LGBTQ2S+ people and that citizens would flee Japan if same-sex marriage were allowed.

Following widespread outrage over the remarks, the LDP submitted legislation to parliament to promote awareness of LGBTQ2S+ rights. It states that "unjust" discrimination is unacceptable but doesn't clearly ban discrimination, apparently because some lawmakers oppose transgender rights. Discussion of the bill in parliament is expected to begin Friday.

The rulings in the five cases in Fukuoka, Sapporo, Tokyo, Nagoya and Osaka can be appealed to the Supreme Court.

In the first ruling in 2021, a court in Sapporo said the government's rejection of same-sex marriage was unconstitutional. A Tokyo court ruled in 2022 that it was in an unconstitutional state and the government lacked a rationale to justify the absence of legal protections for same-sex couples. In late May, a Nagoya court said the exclusion of same-sex couples from legal marriage violates constitutional basic rights and marriage equality.

Only the Osaka District Court said in 2022 that marriage under the constitution's Article 24, which guarantees the right to marry, is only for female-male unions and that the same-sex marriage ban is valid.