Out in the World: Japanese court issues landmark same-sex ruling

  • by Heather Cassell, BAR Contributor
  • Wednesday March 24, 2021
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Same-sex marriage advocates celebrated outside the Sapporo District Court March 17 following a landmark ruling that Japan's denial of same-sex marriage is unconstitutional. Photo: Courtesy AFP/STR/JIJI Press
Same-sex marriage advocates celebrated outside the Sapporo District Court March 17 following a landmark ruling that Japan's denial of same-sex marriage is unconstitutional. Photo: Courtesy AFP/STR/JIJI Press

A Japanese court ruled March 17 that denying same-sex couples' marriage is unconstitutional.

The landmark decision brought praise and hope to Japan's queer couples dreaming of wedding bells that could be realized in the future.

"I could not stop crying," Ryosuke Kunimi, one of the plaintiffs, told the BBC after the decision.

Ai Nakajima, another plaintiff, told the network that the decision was "one huge step forward for Japan."

"We are moving closer to making our dream come true," Ai Nakajima said.

Japanese LGBTQ activists celebrated, unfurling rainbow flags and banners outside of the Sapporo District Court, where presiding Judge Takebe Tomoko announced the decision.

The court's ruling astonished Amy Sueyoshi, Ph.D., dean of the College of Ethnic Studies at San Francisco State University.

"Japan remains governed by an incredibly conservative set of politicians. The Sapporo District Court's decision surprised me for sure," the queer Japanese American wrote to the Bay Area Reporter. "I am not quite at the point of being hopeful, but we can't afford to be anything but hopeful if we want to see change."

Takeharu Kato, the Sapporo plaintiffs' attorney, called the court's decision "revolutionary."

This is Japan's first ruling on same-sex marriage and the first of five similar cases filed in other jurisdictions by 13 couples at the same time on Valentine's Day 2019.

Japan is the only G7 country that has not legalized same-sex marriage.

Experts believe the ruling could significantly influence the other cases.

Judge Takebe Tomoko said there should be no difference in legal benefits based on sexual orientation.

The judge agreed with the plaintiffs, stating that not allowing same-sex marriage is discriminatory under Article 14 of Japan's constitution guaranteeing equal rights to everyone, therefore lacks reasonable grounds, reported NKH.

The ruling was groundbreaking for three reasons, according to Makiko Terahara, director of Marriage for All Japan, writing in a Washington Post op-ed. First, it identified sexual orientation as a personal characteristic that is immutable like gender and race. Second, it stated the purpose of marriage is to protect the couple's common life together, not procreation. Finally, the traditional family cannot be a reason for not recognizing same-sex marriage.

Takeharu Kato urged Japan's bicameral legislature, the Diet, to begin drafting legislation to legalize same-sex marriage.

Makiko Terahara and LGBTQ rights activist Evan Wolfson joined Takeharu Kato's call upon lawmakers to bring marriage equality to Japan.

Wolfson, an attorney, founded the now-defunct Freedom to Marry, an organization that fought for marriage equality in the United States.

The U.S. won same-sex marriage in 2015, with the U.S. Supreme Court's Obergefell v. Hodges decision. Wolfson has since taken his LGBTQ and marriage equality advocacy around the world.

"There's already majority support for marriage equality among the Japanese people, reflecting their values of respect, harmony, and inclusion," Wolfson wrote in an email to the B.A.R. "The constitution's command of equality, dignity, and choice in marriage is clear. The Bar Association, businesses, and now a court have spoken. Every day of delay is harmful. Now the government and Diet must act. It's time for the freedom to marry in Japan."

More than 78% of respondents said they approved or were likely to approve of same-sex marriage, according to a survey conducted by Japanese advertising company Dentsu Inc. in 2018.

Makiko Terahara noted that one of the Tokyo plaintiffs, Ikuo Sato, died unexpectedly due to a brain hemorrhage January 18, he wrote in the op-ed. Ikuo Sato requested to hold his partner's hand when he died, but his last wish was denied, he wrote.

The members of the Diet should not wait for Japan's supreme court to decide, Makiko Terahara wrote, but to respect the constitution as stipulated under Article 99.

MFAJ has launched several successful campaigns and plans to continue campaigning businesses and organizations, lobbying, and producing events and fundraisers.

Judge Takebe Tomoko did not grant the 1 million yen ($9,168.42) in reparations the same-sex couples requested in the case. The reparations were for Japan to acknowledge the pain they suffered because they were not able to marry.

Japan's government cannot appeal the decision because it technically won, Chief Cabinet Secretary Katsunobu Kato told reporters, according to NHK.

However, the plaintiffs can appeal and plan to, according to Makiko Terahara. The activists are going after Article 24 of the constitution, which deals directly with marriage, not equality.

Article 24 states that "marriage shall be based only on mutual consent of both sexes." Only later in the same clause does it refer to "husband and wife."

Several Japanese municipalities kicked off the country's marriage equality campaign allowing same-sex couples to register their relationships in 2015.

Since then, more than 70 municipalities have allowed same-sex couples to register their relationships. More than 1,500 couples have registered, reported NHK.

Japan's LGBTQ movement

Japan was the first country in Asia to decriminalize homosexuality in 1881. However, it remained socially taboo in the conservative country.

That is changing as Japan's LGBTQ movement has visibly grown since the 1990s when Tokyo hosted its first Pride event in 1994 that included about 1,000 marchers. Today, 27 years later, the Tokyo Rainbow Pride attracts more than 150,000 people annually, according to its website.

Tokyo's Pride event inspired Sapporo Rainbow Pride, which launched in 1996, and Kansai Rainbow Festa in Osaka, which began in 2006.

Acceptance of LGBTQ people among Japanese is growing and legal battles are being won as the movement shifts hearts and minds.

More queer Japanese are coming out, yet many remain in the closet, according to the Dentsu survey.

The 2018 online survey discovered acceptance of LGBTQ people has grown in Japan, especially among young people, compared to a 2015 survey.

Nearly 68.5% of the participants knew what the LGBT acronym meant. Almost 80% of the respondents wanted to learn more about LGBTQ people and 72.1% said they wanted stronger legal protections for the LGBTQ community.

Among the 60,000 participants between the ages of 20 to 59, 8.9% identified as LGBTQ.

More than 65% of the LGBTQ respondents had not revealed their sexuality to anyone.

International and Japanese corporations are backing Japan's LGBTQ community, providing some benefits and protections and presenting a business case to the government on why it should protect its LGBTQ citizens, which is that it's important for the country's bottom line.

According to Open for Business, countries that protect LGBTQ people have a higher gross domestic product of more than $8,000 than countries that provide no legal protection, reported Nikkei Asia.

Queer Japanese activists are also calling on Japan to pass an LGBTQ Equality Act. The bill would protect LGBTQ people from discrimination based on their sexual orientation and gender identity. The activists are pushing for the bill prior to the Summer Olympics in Tokyo.

The summer 2020 Olympics was delayed a year due to the global pandemic caused by coronavirus, which causes COVID-19. The games are scheduled for August.

Hungarian high court rules on gender recognition law

Hungary's Constitutional Court threw out the government's attempt to deny transgender people the right to obtain government-issued identification in their chosen gender identity.

The court ruled March 12 that the provision stopping pending applications was unconstitutional, violating the prohibition of retroactive legislation, Transgender Europe stated in a March 20 news release.

Six of the 14 justices made dissenting opinions before the ruling passed, reported Reuters.

Hungarian transgender activists were encouraged by the court's ruling.

"The Constitutional Court concluded that to retroactively prohibit transgender persons from legal gender recognition is contrary to Hungary's Fundamental Law (or constitution)," according to Transvanilla Transgender Association's March 19 news release. "The organization cited that 'when acting within the scope of its powers to protect institutions the state may not enact such procedural frameworks that unconstitutionally limit any of the rights guaranteed by the Fundamental Law.'"

TGEU Executive Director Masen Davis called for implementation of the decision.

"The recent ruling of the Hungarian Constitutional Court is a reason for hope among trans and nonbinary people in Hungary. Now it is time to put the judgment into action," stated Davis. "We call upon the Hungarian government to swiftly process all pending applications for legal gender recognition."

For two years, Hungarian authorities caused delays for transgender Hungarians attempting to legally change their identification to match their gender leading up to the May 19 passage of the bill. Then the process was halted. All applications were rejected last May when lawmakers passed a bill denying gender changes on identification documents.

It was one of two challenges Hungary's transgender community faced in 2020 beyond the global pandemic.

The other anti-transgender bill the community saw passed by Hungary's parliament denied transgender children the right to ever change their gender once the birth certificate was issued.

Davis expressed concern that the court did not "consider the general constitutionality of Hungary's ban on legal gender recognition."

He urged the court to "reconsider this question as soon as possible."

Multiple legal challenges have been launched.

Tamas Dombos, spokesman of the Hatter Society, Hungary's leading transgender organization, speculated about the challenges against the bill and new legal procedures still banned, according to Reuters. He believes there is a chance the entire bill could be overturned later this year.

Hatter Society and Transvanilla, which are members of TGEU, criticized the court for not ruling on the general constitutionality of the Legal Gender Recognition ban as a whole.

The transgender organizations threatened to take legal action all the way up to the European Court of Human Rights if necessary, according to the release.

All eyes are on the courts as Hungary's Prime Minister Viktor Orban has taken a cue from Poland's President Andrzei Duda for his 2022 reelection campaign. The Polish ally is starting to ratchet up the hateful rhetoric against LGBTQ people for his campaign.

Orban could also ignore the court's judgments, as he has in the past.

Looking back at lesbian visibility UN conference

OutRight Action International is hosting a free virtual screening and discussion of "Lesbians Free Everyone."

The documentary by South African filmmaker and lesbian activist Beverley "Bev" Palesa Ditsie, revisits some of the key players in the biggest lesbian visibility campaign in history at the United Nations Fourth World Conference on Women in Beijing 25 years ago, in 1995.

Lady Phyll, British political activist, co-founder of United Kingdom Black Pride, and executive director of Kaleidoscope Trust, will moderate the discussion.

Panelists include filmmaker Ditsie; Julie Dorf, founder, and Jessica Stern, executive director, of OutRight Action International; Gro Lindstad, managing director of Fokus in Norway; and Peruvian Rebecca Sevilla, former secretary general of International Lesbian, Gay, Bisexual, Trans and Intersex Association, based in Amsterdam.

The discussion and documentary screening are Thursday, March 25, at 9 a.m. Pacific Time. To register, click here.

Watch the documentary's teaser:

Got international LGBTQ news tips? Call or send them to Heather Cassell at WhatsApp: 415-517-7239, Skype: heather.cassell, or [email protected]

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