Japan high court says denying same-sex marriage is unconstitutional

High court ruling doubles downs on previous rulings by district courts pushing for same-sex marriages

A Japanese high court has said that the government’s ban on same-sex marriage is unconstitutional – the latest decision backing similar verdicts in favour of marriage equality.

The Sapporo high court ruling on Thursday called on the government to address the lack of any laws allowing for such unions.

The ruling has put its weight behind another order by a lower court last week that said the ban violates the rights of the citizens. It was the sixth district court ruling on the issue.

The latest decision by the high court was hailed by activists who called it a “significant step” and expressed the need for “concrete, legal measures in place to protect same-sex couples”.

Japan is the only G7 country currently that does not fully recognises same-sex couples and does not have legal provisions to offer such couples. However, this stance is not unique in Asia, as Taiwan stands as the only country permitting same-sex unions.

Pressure has been mounting on prime minister Fumio Kishida‘s government to give more rights to the LGBT+ community as public support for same-sex marriages has grown significantly. Opinion polls suggest nearly 70 per cent of the public supports same-sex marriage.

The Sapporo court ruling said that it was “strongly expected” from parliament that would "institutionalise an appropriate same-sex marriage law” as there is public support for it.

“Living in accordance with one’s gender identity and sexual orientation is an inalienable right rooted in important personal interests,” the court said.

Plaintiffs and others shows a banner in front of Sapporo Hight Court in Sapporo, Hokkaido, northern Japan Thursday (AP)

Five previous court decisions in various cities said Japan‘s policy of denying same-sex marriage is either unconstitutional or nearly so. However, unlike the Sapporo ruling, none of the low-level courts clearly deemed the Japanese government’s existing policy to reject same-sex couples unconstitutional.

The Tokyo district court ruling last Thursday said the right to marry, have a family and enjoy advantages marriage brings – such as tax deductions and social security benefits – are guaranteed for everyone, and that lack of the legal right to same-sex couples deprives them of their basic right.

But the Tokyo court ruling was only a partial victory for Japan‘s LGBTQ+ community calling for equal marriage rights, as it doesn’t change or overturn the current civil union law that describes marriage as between a man and a woman.

The court lacks the authority to overturn the existing marriage law, which is construed to define marriage strictly as between a man and a woman.

One of the plaintiffs, in a beige coat, center, speaks in front of media members by the main entrance of the Tokyo district court (AP)

Amnesty International welcomed the ruling and called it a stepping stone in the fight for marriage equality in Japan.

“By recognizing that the government’s ban on same-sex marriage is unconstitutional, these rulings make clear that such discrimination has no place in Japanese society,” it said.

“The Japanese government now needs to be proactive in moving towards the legalisation of same-sex marriage so that couples can fully enjoy the same marriage rights as their heterosexual counterparts.

“The law passed by the government last year to ‘promote understanding’ of LGBTI people is not enough. There need to be concrete, legal measures in place to protect same-sex couples and the LGBTI community in Japan from all forms of discrimination.”

Since 2019, there have been at least six legal cases contesting the marriage ban. In a landmark ruling in 2021, the Sapporo court declared the ban unconstitutional.

The governing  Liberal Democratic Party, known for its conservative family values has passed a law criminalising discrimination of people on the basis of sexuality.

But the government has been criticised as stonewalling diversity by rights groups.

Tokyo enacted an LGBTQ+ awareness promotion law in June that critics said was watered down. The Supreme Court separately ruled that Japan‘s law requiring compulsory sterilization surgery for transgender people to officially change their gender is unconstitutional.

Additional reporting by agencies