Japan court rules same-sex marriage ban is constitutional

• Japan is the only member of the G7 countries that prohibits same-sex unions.
• A Tokyo court upholds the constitutionality of the country’s ban.
• The court finds that lack of legal protection violated gay and lesbian families’ human rights.

In a decision that plaintiffs applauded as a step toward bringing Japan into line with other G7 countries, a Tokyo court on Wednesday upheld the constitutionality of the country’s ban on same-sex unions while finding that same-sex families’ lack of legal protection violated their human rights.

In accordance with its constitution, which states that marriage must be based on “the mutual agreement of both sexes,” Japan is the only member of the G7 that prohibits same-sex unions. Despite the fact that a number of its senior members are in favour of same-sex unions, the government of Prime Minister Fumio Kishida has not yet shown any plans to examine the issue or suggest legislation.

Despite the ban being constitutional, the Tokyo district court’s decision on Wednesday stated that same-sex families’ human rights are being violated by the absence of a legal framework to support them.

“This is actually a fairly positive ruling,” said Nobuhito Sawasaki, one of the lawyers involved in the case.

“While marriage remains between a man and a woman, and the ruling supported that, it also said that the current situation with no legal protections for same-sex families is not good, and suggested something must be done about it,” he said.

The 2021 ruling in the city of Sapporo had raised hopes when it found the ban on same-sex marriage unconstitutional, while one in the city of Osaka in June found the opposite. The Tokyo ruling, which was already influential because of the capital’s outsized influence on the rest of Japan, had been eagerly anticipated.

Currently, Japan forbids same-sex couples from getting married, inheriting each other’s property, including any homes they may have cohabited, and granting them any parental rights to each other’s offspring.

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Despite the fact that Tokyo and roughly 60% of the rest of Japan are now covered by partnership certificates from municipalities, same-sex couples do not receive the same rights as heterosexual couples.

The eight plaintiffs claimed that the prohibition violated their human rights and sought $7,200 in damages, but the court denied their request.

But the group, which unfurled a banner outside the courthouse saying “A step forward for Marriage Equality” after the ruling was read, said they were encouraged.

“There were parts of this that were disappointing, but parts of it gave me hope,” said Katsu, a male plaintiff who gave only his first name.

The decision came a day after the US Senate passed a same-sex marriage protection bill and Singapore lifted a ban on gay sex but limited the prospects for legalizing same-sex marriage.

Two more cases are pending at courts in central and western Japan, and activists and lawyers hope that an accumulation of judicial decisions in support of same-sex marriage will eventually pressure lawmakers to change the Japanese system, although that is unlikely to happen soon.

The situation has limited the talent pool for international companies – a situation that groups including the American Chamber of Commerce in Japan have pointed out, calling for change.

“Thinking about the future of their lives, they don’t see anything in Japan. So they move to more friendly jurisdictions, like the United States,” said Masa Yanagisawa, head of prime services at Goldman Sachs and a member of the activist group Marriage for all Japan.

“We’ve been investing into the person to have a senior role, but then they move … All that talent ends up leaving the country because of the social system.”

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