TOKYO – A Japanese court ruled Monday that the country’s ban on same-sex marriage is unconstitutional, and rejected claims for compensation from three couples who said their right to free association and equality had been violated.
The verdict in Osaka District Court is the second decision in the case, and disagrees with a ruling last year from a court in Sapporo that found the ban on same-sex marriage unconstitutional. It underscores how divisive the problem remains in Japan, the only member of the group of seven major industrialized nations that does not recognize same-sex unions.
In its ruling, the court in Osaka rejected the plaintiffs’ claim for 1 million yen ($ 7,400) in compensation per couple for the discrimination they face.
The plaintiffs – two male couples and one female couple – were among 14 same-sex couples who filed lawsuits against the government in five major cities – Sapporo, Tokyo, Nagoya, Fukuoka and Osaka – in 2019 for violations of the rights to free association and equality.
They claim that they have been illegally discriminated against by being deprived of the same economic and legal benefits that heterosexual couples enjoy through marriage.
Support for sexual diversity has grown slowly in Japan, but legal protection is still lacking for lesbians, gays, bisexuals and transgender people. LGBTQ people are often discriminated against at school, at work and at home, which causes many to hide their sexual identity.
Rights groups had pushed for a gender equality law before the Olympics in Tokyo last summer, when international attention was drawn to Japan, but the bill was repealed by the Conservative government party.
The Osaka court said on Monday that the freedom of marriage in the 1947 constitution only means associations between men and women and does not include those of the same sex, and therefore it is not unconstitutional to ban same-sex marriage.
Judge Fumi Doi said that marriage for heterosexual couples is a system established by society to protect a relationship between men and women who give birth and raise children, and that ways to protect same-sex relationships are still under public debate.
However, the court called on parliament to seek ways to better protect same-sex relationships, including options to legalize same-sex marriage.
Monday’s ruling was a setback for activists who hoped to put further pressure on the government following the ruling from Sapporo District Court in March 2021.
The plaintiffs and their lawyers called Monday’s ruling unacceptable and said they would appeal.
Akiyoshi Tanaka, a prosecutor, told a news conference that they were taking legal action to get support from the trial so that parliament could take action, but “the court refrained from making a decision.”
He said he will continue to fight. “We do not have time to feel discouraged,” he added.
Public opinion in Japan currently favors the legalization of same-sex marriage.
Under current Japanese law, same-sex couples cannot inherit each other’s property, houses, or other property they share, and have no custody of each other’s children. They are often barred from renting apartments together, and from hospital visits and other services available to married couples.
More than 200 municipalities across Japan, or 12% of the total, have started issuing illegally binding partnership certificates to same-sex couples since Tokyo’s Shibuya district became the first to do so in 2015.
The Metropolitan Government of Tokyo recently adopted a plan to accept registrations from October onwards by sexual minority couples seeking certificates for their partnership.
However, this is not the same as a marriage certificate and does not provide equal legal protection.
Taiwan is the only Asian nation or territory that has legalized same-sex marriage.