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A recent ruling by a district court in Sapporo, in Japan's northern prefecture of Hokkaido, has emboldened supporters of gay marriage and set a landmark precedent. (Photo by Yuki Kohara) 
The Big Story

Marriage equality in Japan: finally within reach?

In the only G-7 nation to prohibit same-sex unions, the mood is changing

RURIKA IMAHASHI, Nikkei staff writer | Japan

TOKYO -- When Kazuo and Hiroshi first met and fell in love, the Beatles had just broken up, Richard Nixon was the American president, and Japan's Okinawa Prefecture was still part of the U.S.

Kazuo and Hiroshi, not their real names, had been inseparable since they met in 1970. They had nothing but "good memories," Kazuo recalled. But when Hiroshi developed cancer 10 years ago, they had resolved to fight it together. They lost that battle.

Hiroshi's death in 2016 was wrenching for his partner, but became even worse in the aftermath. Same-sex marriage is still prohibited in Japan, and Kazuo, now in his early 70s, had been a spouse in all senses except legally.

After his death, Hiroshi's family refused to allow Kazuo to attend the funeral as a family member -- nor to accompany them to a crematorium, where he would have had a final chance to say goodbye. Even now, five years later, Kazuo has no idea where his partner's ashes are laid to rest.

He had no choice but to vacate the pair's home that they had shared for years, where the rental contract was signed under Hiroshi's name. Same for the business they had jointly run, and which Hiroshi's family shut down without consultation. Kazuo had been the de facto manager for more than four decades.

"I feel like I'm half-dead inside, losing my better half," Kazuo told Nikkei Asia.

"If we were man and woman, we would have already been married," he added. "Not having an option [to get married] is tantamount to being ignored. We cannot access legitimate rights and a life."

Protesters gather outside Japan's National Diet to call for the enactment of an LGBT Equality Law. Traditionally, same-sex marriage has gone largely unaired in public debate.   © Kyodo

Japan remains an outlier among developed countries, the only member of the Group of Seven advanced economies that has not legalized same-sex marriage. Despite overwhelming popular support -- 82% of Japanese say they support recognition -- a narrow clique of conservatives in the Diet have blocked it, saying it would corrode the traditional form of a Japanese family.

Same-sex marriage is a topic rarely aired in Japan. The government has traditionally avoided the matter, saying that it does not "envisage such unions." As a result, lack of legal protection has left same-sex couples vulnerable in thorny matters such as immigration restrictions for spouses, inheritance, medical visits and joint custody of children.

Above all, the yearlong pandemic brought home to many the worst that could happen, said Makiko Terahara, an attorney at law and representative director of the Marriage For All Japan foundation, an advocacy group. "Without legal protection, they have realized how vulnerable and unstable they are."

However, this may be in the process of changing. A March 17 ruling by a district court in Sapporo, the capital of Hokkaido Prefecture, has emboldened supporters of gay marriage and set a landmark precedent. For the first time in history, a Japanese court ruled that government's failure to allow same-sex marriages is violating Article 14 of the Constitution, which ensures the right to equality.

"The ruling shows that Japan is at a tipping point," said Yasuhiko Watanabe, a family law expert and professor at Kyoto Sangyo University. "Before the ruling, it was the same-sex marriage supporters who had to explain why it should be legalized. But from now on, it's the opponents who have to explain why it cannot be."

The presiding judge, 51-year-old Tomoko Takebe, left no ambiguity in the matter.

"Sexual orientation is a personal characteristic that is not a matter of choice, and as such, it can be said to be similar to sex, race and so on. It must be said that there are no differences in the legal benefits for individuals regardless of sexual orientation," the ruling said.

Political fear and favor

Opponents fear allowing same-sex marriage will be a threat to the traditional form of a Japanese family. But for supporters of gay marriage, the Sapporo court ruling could put Japan back in step with the rest of the developed world. Globally, 29 countries currently recognize gay marriage, and 34 countries have a similar partnership recognition.

Asia has been more conservative. But if the process plays out as supporters hope, the ruling could line up Japan to become the first country in the region -- apart from Taiwan, classed by China as a territory -- to legalize gay marriage.

Including two male couples and one female couple in Sapporo, a total of 35 plaintiffs have filed lawsuits against the government in five major cities -- Sapporo, Tokyo, Nagoya, Osaka, and Fukuoka -- across the country since Feb. 14, 2019.

Marriage For All Japan's Terahara expects that the final ruling could be made by the Supreme Court in 2023, after the matter is discussed at each area's district and high courts. If the district court's ruling is upheld by the Supreme Court, "although the ruling won't be legally binding, it will certainly move the Diet to amend the law," said Terahara.

However, supporters say the Diet should move first. "What's best would be if the Diet moves before the final ruling comes," said Terahara.

In a parliamentary session on Feb. 17, Japanese Prime Minister Yoshihide Suga describes same-sex marriage as requiring "extremely careful consideration." (Photo by Arisa Moriyama) 

So far, however, the government seems to be treading cautiously. Right after the Sapporo ruling, Chief Cabinet Secretary Katsunobu Kato told reporters that the government would carefully watch the outcomes of the other court cases. The government "does not believe that the Civil Code's provisions on marriage are contrary to the Constitution," he said.

Currently, the Civil Code uses phrases like "consent of both sexes" and "husband and wife," which suggest a union between a man and a woman, but not same-sex marriage.

During a parliamentary session in February, Prime Minister Yoshihide Suga said that recognizing same-sex marriage requires "extremely careful consideration," as it is about "the very foundation of the family." Suga is under intense pressure from his party's conservative supporters, who adhere to the prewar Japanese ie. Under that family structure, the power balance favors males, who are also expected put the interests of the state before personal freedom.

Any bill to legalize gay marriage would face a powerful conservative lobby, with two parliamentary groups expected to resist: the Round-Table Conference of Diet Members of the Shinto Association of Spiritual Leadership, and the Round-Table Conference of Diet Members of Nippon Kaigi.

Both are all-party conservative parliamentary groups. The first is related to the Association of Shinto Shrines -- a religious organization overseeing about 80,000 Shinto shrines in Japan, whose sister organization, the Shinto Association of Spiritual Leadership, is a staunch opponent of same-sex marriage -- and the second is linked to Nippon Kaigi, Japan's largest conservative organization. Many lawmakers from the ruling Liberal Democratic Party are members of these groups, including Prime Minister Suga.

These conservative groups share some core values. They support the amendment of the war-renouncing Article 9 of the Constitution. They oppose introducing a system to allow different surnames for married couples, claiming it will lead to the demise of the family system.

On gender, "the rampant practice of gender-free education is paralyzing the fresh sensibilities of the children who will lead the next generation and robbing them of a sense of national pride and responsibility," Nippon Kaigi argues on its website.

"We are aware that there is a debate [over same-sex marriage], but we are not at the stage of formulating our views internally and do not have a response at this stage," said a representative for Nippon Kaigi.

The interior of the home of couple Miyuki Fujii and Rie Fukuda, plaintiffs in an ongoing marriage equality lawsuit in Tokyo. (Photo by Yuki Kohara) 

"Our traditional family values are based on that there are father and mother who have their child and thus life is passed on to the next generation," said a representative at the Association of Shinto Shrines.

"If you grant rights to a minority, the impact will not stay among them but the whole of society will be affected," the representative said. "The current marriage system legally protects the couple for the inheritance of life to the next generation. We have to protect that."

Akira Momochi, a professor at Tokyo's Kokushikan University, shares that fear, arguing that allowing same-sex marriage could cause a ripple effect on the fundamental family system. "Whether same-sex marriage should be legalized is a matter that the Diet should decide," he told Nikkei. Momochi is a member of the Nippon Kaigi policy board.

In 2019, opposition parties submitted a bill to the Diet that would allow marriage between people of the same sex. They argue that amending Japan's civil law by using a neutral term such as "party to marriage" instead of "husband and wife," for example, would enable same-sex marriage. But the bill has been blocked by the ruling Liberal Democratic Party and has not yet been deliberated.

The LDP, meanwhile, has said they will submit a separate bill to improve public understanding of the problems faced by lesbian, gay, and transgender people during the current Diet session, which runs through June. However, the party has stressed that the bill is not aimed at supporting same-sex marriage.

"Conservatives think that 'a little leak will sink a great ship,'" said Miyoko Tsujimura, a constitutional scholar and a professor emeritus at Tohoku University.

Narrowing options

With political avenues all but blocked for the time being, same-sex marriage supporters see courts regarded by law experts as the "last bastion of human rights," and their only option for redress.

Couple Rie Fukuda, left, and Miyuki Fujii, at their Tokyo home. (Photo by Yuki Kohara)

Miyuki Fujii and Rie Fukuda, a female couple in their 40s who are plaintiffs in an ongoing marriage equality lawsuit in Tokyo, are in a similar situation to Kazuo and his partner, the late Hiroshi. Six years ago, when Fukuda was diagnosed with cancer, they had to lie that they were "cousins" in order for her partner Fujii to be able to care for her at the hospital.

"Doctors told us only family members could accompany the patient," said Fukuda.

Throughout the painful treatment, Fujii was a constant support who always cheered her up with warm love and "smiles like the sun." "Every time I got weak, she pulled me out of the darkness," Fukuda said.

But every time Fukuda thought about the worst-case scenario, worries mounted. "If I die, what about our apartment we have been living in together," Fukuda asked. "Can she continue living there? That's what haunted me the most." The couple have been paying the mortgage together, but it was Fukuda who signed the contract.

Above: Fujii and Fukuda hold hands during an interview. Below: Gardening in their shared home in Tokyo on April 12.(Photos by Yuki Kohara)

While many from the LGBT community still refrain from speaking up publicly in fear of discrimination, the couple said their personal experience of losing a parent nudged them to speak up. There were things left unsaid. They wanted to tell their late parent that they were partners, and happy being together. That was when they knew, the pair said, that they did not want to hide anymore.

"It's suffocating to live a lie, hiding your true self," said the couple. "You have to create a story all the time, making lies, and that's really painful. We don't want the younger generation to go through this anymore. That's why we took part in the lawsuit."

Same-sex couples cannot be legal heirs to each other even if they have lived together for a long time, and there are tax disadvantages, such as not being eligible for spousal exemption.

Gavin, not his real name, a Taiwan-native gay man in his 50s, has been particularly vulnerable due to his immigration status. He met his Japanese partner in 1993 and they have been together ever since. But his tourist visa expired in 1994, and he had been an "undocumented immigrant" until 2016, when he was detained by the police.

He was desperate to stay in Japan, saying he had no one who understood him back home. His family termed his sexual orientation a "disease," and he attempted suicide several times. For Gavin, who has had barely any contact with his relatives since 1992, his partner and Japan were his home. "I just wanted to be with him in Japan," said Gavin.

A wedding in Taipei: Taiwan's government was the first in Asia to legalize same-sex marriage in 2019.   © Reuters

In 2019, the Justice Ministry overturned a deportation order for Gavin, taking into consideration his longtime partnership with his partner. He is now able to legally stay in Japan, but his status is far from secure. "I have to renew my visa every year and there is no guarantee that my application will pass," Gavin told Nikkei.

He said this is unfair compared to marriages between a man and a woman, where the foreign spouse's legal status is more secure. The visa period is longer, for example, and the foreign spouse can apply for a permanent visa after a certain period of time.

The recent Sapporo ruling gave him a glimmer of hope for a future where they could be married. "For a long time, I had to lie to live with my partner," said Gavin. "But I don't want to lie anymore."

A recent opinion survey showed an increasing awareness of marriage equality in Japan. A survey conducted in December 2020 by Dentsu found that awareness of the term "LGBT" jumped from a low 37.6% in 2015 to 80.1% in 2020.

In the same survey, 82% of respondents supported same-sex marriage -- a rise from 78% support in a previous survey conducted in 2018.

The survey also found that LGBT-friendly groups had a high proportion of women and tended to be younger. Anti-LGBT groups, on the other hand, had a high proportion of men, and were more likely to be in their 50s.

Matching the change in awareness, Japan's businesses and municipalities have outpaced politics in providing services and care for the LGBT community. As of April, more than one hundred municipalities across the country issue "partnership certificates" to same-sex couples, which do not extend the same social security and tax benefits that are open to heterosexual couples. Eighty-nine more municipalities will introduce or are considering introducing such measures and all combined, 52% of the total population will be covered by the services, according to civic organization Same-sex Partnership Net.

Some insurance companies, for example, already allow same-sex partners to receive insurance payouts. Major mobile phone carriers offer family discounts for same-sex partners.

In 2017, Japan's powerful business lobby, known as the Keidanren, issued a statement urging companies to take action to promote recognition and acceptance of LGBT people.

"As social justice over human rights becomes a hot topic and companies become more and more active globally, being silent is a risk," said a spokesperson for Keidanren. "If companies do nothing, they will fall behind the times."

Plaintiffs for the same-sex marriage lawsuit head to Sapporo District Court on March 17.   © Kyodo

Keidanren acknowledges that diversity in the workforce -- including bringing talent from overseas -- is crucial for sustainable economic growth as the country faces a decreasing population. Maki Muraki, head of nonprofit organization Nijiiro Diversity, argues that Japan is currently less attractive compared to other developed countries offering marriage equality.

Some foreign businesses have pressed Japan for action. The American Chamber of Commerce in Japan warned in 2019 that the disparity in legal rights between heterosexual and same-sex couples "makes Japan a less attractive option for LGBT couples, compared to many other countries vying for the same talent."

A spokesperson for J.P. Morgan told Nikkei: "Instituting marriage equality in Japan will support the recruitment and retention of talent by treating the full diversity of the workforce equitably."

Within Japan, some business leaders share similar concerns.

"Japan does not offer a welcoming environment, nor a legal framework, for foreign LGBT workers to use experience here as a pathway to enhancing their careers," said Moriaki Kida, who is currently regional chief operating officer at EY Japan and will take over as CEO in July.

"International opportunities usually come in the prime of one's career and often impact their family members. Currently, LGBT couples cannot relocate to Japan on the same terms as heterosexual couples, so companies must define benefits to attract highly skilled talent to Japan," Kida said. He is certain that marriage equality will increase the attractiveness of Japan as a destination to live and work for highly-skilled LGBT professionals.

Moriaki Kida, incoming CEO of EY in Japan, says that the country does not offer a "welcoming environment" for global talent in same-sex relationships. (Photo by Yuki Kohara)

One rationale for politics to avoid same-sex marriage discussion is that such treatment would require a constitutional change. Japan's postwar constitution is known as rigid, and has never been amended since its adoption in 1947. Article 24 of the constitution says: "Marriage shall be based only on the mutual consent of both sexes, and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis."

Tsujimura at Tohoku University argues that there has been a growing consensus among scholars that Article 24 does not rule out marriage between same-sex couples. Article 24 was written to make clear that women who were in a weaker position in Japan's male-dominated prewar society now had the freedom to choose who to marry without the say of third parties such as parents, Tsujimura said.

"Today, it is desirable to change the interpretation of the constitution in accordance with the global trend of respect for human rights including sexual minorities," she added. "It is not surprising that there has been a change in the interpretation of the constitution."

Masayuki Tanamura, a family law expert and a professor at Tokyo's Waseda University, pointed out that Japan's predominance of older men in politics was one reason behind the slow approach. In a rare move, 40-year-old Shinjiro Koizumi, an LDP lawmaker and environment minister, showed his personal support for marriage equality. But "voices from the young and minorities are hard to reach out to the center of politics," Tanamura added.

'Too indifferent to minorities'

More public interest will be key to moving the discussion forward. "For many people, LGBT are still some people who exist somewhere far away," Takahiko Morinaga, founder of Tokyo-based think tank Japan LGBT Research Institute.

The Dentsu survey also defined 34% of heterosexual respondents as "knowledgeable others," those who are aware of LGBT issues but sees them as another person's affairs. This group accounted for the largest percentage of the total respondents.

"The fundamental problem is that the Japanese society is too indifferent to minorities," said Morinaga, adding that it is essential for Japan to have a common understanding that societies are diverse.

Tanamura at Waseda University agreed. "Marriage equality is a touchstone for the entire Japanese society," said Tanamura. "It raises a fundamental question: Can Japan truly create a society where every individual can live their own life, and where diversity is accepted?"

In the series of ongoing marriage equality lawsuits across Japan, the government, or the defendant, repeats the well-known phrase that it "does not envisage marriage between people of the same-sex."

"The government kept running away from this issue, saying that they don't envisage [gay marriage]," said Takashi, not his real name, one of the plaintiffs in the Sapporo lawsuit in his 40s. "Please don't disguise your negligence with the phrase. No more running."

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