On Valentine’s Day 2019, thirteen same-sex couples in various parts of Japan simultaneously filed constitutional lawsuits in the district courts in Tokyo, Osaka, Nagoya, and Sapporo. They argue that the Japanese Parliament has been negligent in not providing them with the ways to perform a marriage, which, according to them, violates the Equality Clause of the Constitution. These cases present the first opportunity for the Japanese judiciary to address constitutional claims of sexual orientation discrimination.
Depending on one’s perspective, the surrounding circumstances can be seen as either a boon or a disadvantage. Recent Japanese Supreme Court cases concerning gender and illegitimacy discrimination seem to indicate that the justices are increasingly looking beyond national borders for insights for their decision. Also, most of the justices currently on the bench appear to hold the view that the Court should not hesitate to intervene when the rights of minority group members are at risk. On the other hand, there is no precedent directly in point, for the Japanese Supreme Court has never decided a case about discrimination against gays and lesbians, although there have been a few court judgments enforcing the contractual rights of transgender people against private companies.
While Japan does not impose criminal sanctions on same-sex relationships, it still does not have any statute prohibiting sexual orientation discrimination, either. It is true that a number of cities including Osaka and Sapporo have recently started issuing “partnership certificates” to same-sex couples; however, their wordings are different from place to place and their legal significance has yet to be established: landlords, hospitals, and other service providers are typically advised to make efforts to treat a person’s registered same-sex partner as his or her family member, but there is no penalty for those not complying.
Will Japan recognize same-sex marriage in the near future? What about sexual orientation discrimination in schools, public accommodation, employment, and housing? Is the Japanese Parliament prepared to take necessary action to achieve equality for LGBT people? What kind of approach will the judiciary take when deciding whether legislative inaction is constitutionally permissible? Combining insights from international human rights law and Japanese constitutional law, the presenter will explore the answers to these and other questions and forecast the future of LGBT rights in Japan.