The Paper's reporter Chen Qinhan
Recently, a judgment of the Japanese District Court has once again made the issue of the legal status of same-sex marriage the focus of public opinion in Japan.
On Valentine's Day 2019, 13 japanese same-sex couples filed lawsuits in the district courts of Sapporo, Tokyo, Nagoya, Osaka, and Fukuoka, accusing the Japanese government of allegedly violating the Constitution by not recognizing same-sex marriage, and demanding that the state compensate each person with 1 million yen (about 59,438 yuan).
The 26 plaintiffs, from eight prefectures in Japan and in their 20s to 50s, were unable to have a clear legal relationship with same-sex couples because their marriage applications were rejected.
Two years later, on March 17, the Sapporo District Court took the lead in issuing a first-instance judgment, ruling that the Japanese government did not recognize same-sex marriage as "unconstitutional," but rejected the plaintiff's claim.
The judgment states that sexual orientation "is an individual nature that is not affected by the will of the individual, and can be said to be the same as gender and race". Since marriage has the legal effect of stipulating family and identity relations, and same-sex couples are not allowed to enjoy the legal rights and interests of marriage, it violates article 14 of the Constitution that "all people are equal before the law".
Notably, this is the first time a Japanese district court has ruled "unconstitutional" in a same-sex marriage-related lawsuit. "This is not our ultimate goal, we need to take a second step, a third step, and keep moving forward." Six of the Hokkaido plaintiffs said at a press conference after the verdict.
Akiyoshi Miwa, a member of the legal team of 13 same-sex couple plaintiffs in Japan and a co-representative of married Japanese nonprofit Marriage For All Japan, which is committed to achieving universal freedom of marriage, told the www.thepaper.cn that the Sapporo District Court's judgment is very convincing and hopes that Japan will consider legislation on same-sex marriage after the judgment.
Currently, Japan is the only country in the Group of Seven (G7) that has not legalized same-sex marriage. The Sapporo court's "unconstitutional" judgment has raised concerns about the rights and interests of sexual minorities (LGBT) in Japanese society, and there have been recent discussions within the Liberal Democratic Party.
Unrecognized marital relationships
Back in 2002, at an LGBT exchange event in Hokkaido that year, Kunimi (pseudonym), who was in his 20s at the time, took the stage to speak, and he performed on stage like a star in the LGBT community, which is why Takashi (pseudonym) became one of his "fans". After the event, Takashi sent a message to Kunimi via Twitter: "Can I meet?" In November of that year, the two saw each other in the center of Sapporo.
Kunimi and Takashi told Kyodo that they both like Japanese singer Myoko Yano, and after frequent dates at concerts, the two began to live together in 2004, "Until now, living together for more than 16 years, there will be no dramatized things like hot love, and it has become a matter of course for two people to live together." ”
Takashi's sister recalled in an interview, "One day my brother called and said he was coming to my house after work and suddenly told me, 'I'm in a relationship with men.'" Although she felt very sudden, she felt that Guizhi had things that she did not want to tell people since she was a child, "Knowing that he has a person to talk to, I am relieved." At the moment when Takashi arrived home, he and his sister hugged and cried.
"They're just a couple." Takashi's sister, as a witness, spoke to the judge at the Sapporo District Court's March 2021 trial.
Kunimi told Kyodo: "It is not because you can't get married that you are suing, but to give everyone the right to choose their marriage freely." We are not a poor couple. Takashi went on to say, "We are living happily, already like family, but wouldn't it be better if same-sex couples could also get married. ”
Ai Nakajima, who lives in Yokohama, is also one of the plaintiffs in the same-sex marriage lawsuit, and her partner is Christina from Germany, and in particular, the two have completed the marriage formalities in Germany.
In 2011, Ai Nakajima met Christina, who was 8 years younger than her, during a business trip to Germany. After Ai Nakajima was transferred to Germany, the two began to associate. Three years ago, they went through marriage procedures in Germany, but due to work reasons, the two decided to settle in Japan, and in February 2019, the two submitted a marriage application to the Yokohama City Hall, and to their surprise, the application was not accepted, because the premise of marriage in Japanese civil law is that "men and women are married".
"It's very disturbing to think that we won't have anything to prove that we are partners in the future." Christina told the Asahi Shimbun that she currently only has a student visa and cannot apply for a visa as a spouse of a Japanese national.
Ai Nakajima said that the status of women in Japan is already relatively low, and female same-sex couples are more vulnerable, hoping to build a "society where female same-sex couples can live with their chests up."
The 13 people who sued the Japanese government all have little-known distress about Japanese same-sex couples, and in their view, the law is a powerful weapon for just rights. To that end, Marriage For All Japan, a Japanese nonprofit organization dedicated to marriage equality, reached out, with lawyers forming a team of lawyers responsible for five same-sex marriage lawsuits.
1/5 win
In an indictment filed with the Sapporo District Court, the three same-sex couple plaintiffs in Hokkaido stated that not only does the Japanese government not recognize same-sex marriage, but that marriage relationships in both the civil law and the household registration law are based on the premise of "husband and wife" and "both sexes", which is suspected of violating the freedom of marriage and equality of all people guaranteed by the Japanese Constitution.
On March 17, Chief Justice of the Sapporo District Court, Tomoko Takebe, read out a judgment saying that Article 24 of the Constitution stipulates that "marriage is only based on the voluntary union of the two sexes", so it is limited to heterosexual marriage, and the Japanese government has not violated Article 24 of the Constitution. However, in view of the fact that same-sex couples cannot obtain legal protection through marriage, the Japanese government's act violates article 14 of the Constitution, which stipulates that "all citizens are equal before the law." In political, economic and social relations, they cannot be distinguished by differences in race, creed, gender, social identity and lineage. ”
According to Kyodo News Agency, when the judge read out the verdict, the plaintiffs burst into tears at the scene of the trial. At a press conference later, a female plaintiff said: "Not being allowed to marry because of sexual orientation has cut off many people's hopes for the future, and even some people have doubts about their own survival, and this great verdict has given us hope again." ”
However, the ruling dismissed the claim because the broad consensus on the recognition of same-sex marriage in Japan has only emerged in recent years, and "it is not easy for the Diet to immediately recognize that the current provisions on non-recognition of same-sex marriage are unconstitutional."
Several Japanese media outlets reported on the verdict under the title "Historic Verdict." However, it is undeniable that this result is still controversial. The Yomiuri Shimbun commented that the court recognized that the marriage relationship was based on the union of men and women on the one hand, and on the other hand, it ruled that the denial of same-sex marriage was unconstitutional, and the conflict between laws and regulations was difficult to understand.
The Japanese government has not taken a stand on this, with Chief Cabinet Secretary Katsunobu Kato stating at a news conference on March 17: "As a government, we do not consider the civil code on marriage to be unconstitutional, and we know that this claim has not been accepted." At this stage, the Government is unable to file an appeal and will also pay attention to the decisions of other courts in similar cases. ”
Masayuki Tanamura, a professor at waseda University's Faculty of Law, said in an interview with The Paper that since "reasonable differential treatment" of a certain group does not violate the constitutional provisions on equality for all, the focus of the dispute is whether "not recognizing same-sex marriage" is a reasonable discrimination. With changes in national consciousness, increased understanding of the LGBT community, and the gradual promotion of same-sex partnership systems by local governments, coupled with changes in the domestic and international situation, it is difficult to regard the practice of not recognizing same-sex marriage as a reasonable discrimination.
At present, same-sex couples do not enjoy any rights and interests of husband and wife at all, for example, after the death of one party, the other party cannot inherit the inheritance, the legal relationship of the children is not clear, and in addition, Japanese people are with same-sex foreign national partners, who cannot obtain a visa based on marriage relationship.
Sadayuki Tanmura believes that although this is only a decision of the Sapporo District Court, it will have an impact on the whole of Japan and will push the Diet and the government to seriously discuss and consider the legal status and rights of same-sex couples. However, different judges have handled and thought differently, and the outcome of the other four similar cases in each region is still uncertain – the district courts in Tokyo, Nagoya, Osaka, and Fukuoka are hearing the four same-sex marriage lawsuits filed in February 2019, and the trial time has not yet been finalized. Because of this, the Sapporo verdict is only one-fifth of the LGBT community's victory.
As a member of the Marriage For All Japan Kansai Law Group, Miwa is preparing for the same-sex marriage trial in Osaka. He told The Paper that the Kansai Law Group has submitted to the Osaka District Court the social situation of LGBT in Japan and various investigative materials and documents related to same-sex marriage, "Many of our lawyers and legal experts believe that the judicial judgment logic of the Sapporo court is irrefutable, and it will be difficult for the tokyo, Nagoya, Osaka, and Fukuoka district courts to make different judgments if they cannot overturn this logic."
Marriage For All Japan organized a rally in front of the House of Representatives of Japan on March 25 to call on members of parliament to treat same-sex marriage equally. Miyo said that it is not enough to win lawsuits, but also needs to be more widely recognized in society, and since Congress is responsible for making laws, it is necessary for members of Congress to understand the need for the legalization of same-sex marriage and start to promote legislation as soon as possible.
Preparations for the Tokyo Olympics have brought some changes
While the Sapporo District Court's decision has encouraged LGBT people, many know it won't change the status quo immediately.
"Even with the judgment of the judiciary, the unfair treatment of same-sex couples in Japanese society is still obvious." Yamamoto, who has lived with same-sex couples in Tokyo for 10 years, told The Paper that the government should take action to eliminate this inequality as soon as possible, even if it is a small step.
On March 22, Yamamoto and his colleagues filed a petition signed by more than 18,000 people to Tokyo Governor Yuriko Koike, demanding that the Tokyo metropolitan government fully introduce a "same-sex partnership system," in which local governments recognize same-sex couples as husband and wife, and issue same-sex couples with an instrument called "Affidavit to Receive a Certificate, which has no legal effect, under which same-sex couples can enjoy rights as family members in areas such as staying in public rental housing."
Yamamoto and his colleagues submitted a petition to the governor of Eastern Kyoto. Courtesy of respondents
The further implementation of the same-sex partnership system is not only related to civil law and household registration law, but also has an impact on laws in different fields such as pensions, social security and taxes, and it is expected that the National Assembly will discuss this.
In 2015, Shibuya-ku and Seta-ku in Tokyo took the lead in introducing the "same-sex partnership system." According to Japanese media statistics, as of March 1 this year, 78 local governments across Japan have introduced this system, but this is only a very small part of the 1741 local governments in Japan.
From elementary school, Yamamoto realized that he liked the same sex, but at that time, homosexuality was regarded as the wrong thing, and even her good friends said, "Even if you become a lover with each other, you can't make her happy, it will only add trouble." Yamamoto thought about suicide many times, and it wasn't until she went to the United States to study and learn about human rights that she realized that there was nothing wrong with homosexuality, and met her current partner in the United States and returned to Tokyo to live together.
Commenting on the opportunity to launch the petition for the "same-sex partnership system", Yamamoto said, "When I contact hospitals, police stations and some public institutions as a same-sex partner, especially in emergencies, I feel very uneasy and afraid that I cannot be regarded as a family member of my lover. ”
After the arrival of the new crown epidemic, she realized that her lover could be hospitalized or even die of the new crown virus at any time, and if such an accident occurred, she did not even have the right to visit as a partner, nor could she sign a consent form for the operation for the other party. As the uneasiness grew, Yamamoto hoped that the Tokyo Metropolitan Assembly and the Tokyo Governor would at least put the establishment of a same-sex partnership system on the agenda.
Yamamoto said that when submitting the petition, Yuriko Koike did not say on the spot that she would promote the implementation of the same-sex partnership system, but said that she would conduct an investigation and decide whether it was necessary based on the results of the investigation, "This is the first time that the governor of Tokyo has indicated that he will consider the same-sex partnership system, and we understand that the Japanese people have a high degree of approval of this system, coupled with the new atmosphere brought about by the Tokyo Olympics, we believe that the possibility of tokyo fully implementing this system is high." ”
In accordance with the Olympic Charter, which prohibits discrimination on the basis of gender and sexual orientation, the Tokyo Olympic and Paralympic Organizing Committee held a council meeting in Tokyo on March 22 and decided to take advantage of the Olympic Games to make Japan a truly diverse society. As the host city, Tokyo is promoting measures to respect human rights in accordance with the Olympic Charter.
"Japan's political agenda has lagged behind the folk movements as well as international trends." Yamamoto believes that although the preparations for the Tokyo Olympics have brought some changes to Japanese society, the LGBT still has a long way to go.
How far is Japan from legalizing same-sex marriage?
According to a March 20 March 20 poll by the Asahi Shimbun, 65 percent of Japanese people believe same-sex marriage should be recognized, up 24 percentage points from a 2015 poll in the same period.
With the Sapporo District Court's decision, discussions in Japanese society over same-sex marriage legislation have heated up again. At a meeting on the Senate Budget Committee on March 19, Constitutional Democrat Lawmaker Ren Fang expressed the hope that the prime minister would accept the judgment of the Sapporo court and promote the legalization of same-sex marriage. However, Suga did not respond directly: "There are still similar lawsuits still under trial, and I will pay attention to the relevant situation."
Hirofumi Shimomura, chairman of the Liberal Democratic Party's government affairs investigation, directly stated that he did not approve of the Sapporo court's judgment, "The marriage system is to provide legal guarantees for having children and living together, and not recognizing same-sex marriage does not violate Article 14 of the Constitution." ”
As early as 2016, the LDP's "Special Committee on Sexual Orientation and Gender Identity" discussed the LGBT issue, concluded that "the party's basic idea is to accept a society with diverse sexual orientation and gender identity", and formulated a plan to respect a diverse society, however, due to opposition from conservatives, the plan has not been submitted to the Parliament and has been shelved to this day.
Tomomi Inada, the current chairman of the "Special Committee on Sexual Orientation and Gender Identity" and former defense minister of Japan, tweeted on March 17 that "if we can promote the understanding of LGBT people, then the discussion of same-sex marriage and same-sex partnership systems will also go further." Another committee official told Jiji News Agency that although the atmosphere in Japan is very different from that of five years ago, especially on the eve of the Olympic Games advocating equal rights for men and women, and the voice at home and abroad is high, there are still some conservatives in the LDP who are cautious and cause resistance.
In fact, during the Edo period in Japan, the samurai class once prevailed with male homosexuality, known as the "Way of the People", but it was not suppressed at that time. By the Meiji era, the process of modernization was accelerating, and the government had compiled legal systems with reference to European and American codes, so under the influence of Christianity, a decree prohibiting homosexuality was enacted. After World War II, when Japan enacted laws, it even regarded homosexuals as mentally ill, so the tendency of Japanese society to deny this group was once quite strong. At the same time, the traditional Japanese concept of family is deeply rooted.
Shed Village Said that at present, people over the age of 60 in Japan have a strong resistance to same-sex marriage, and compared with large cities, urban residents have more prejudices against same-sex marriage. However, in recent years, as family relationships have diversified, people have a deeper understanding of the LGBT community, "local governments to promote the same-sex partnership system is the first step towards the recognition of same-sex marriage, and Sapporo's 'unconstitutional' judgment is expected to push Congress to discuss the legalization of same-sex marriage." ”
According to the Jiji News Agency, some opponents of the legalization of same-sex marriage believe that if same-sex marriage is not widely understood by the entire Japanese people, hasty legislation will instead attract people's antipathy to homosexuals. Proponents argue that the legalization of same-sex marriage is an inevitable consequence of human rights and democracy.
At present, the discussion of same-sex marriage among Japanese netizens has also entered a white-hot situation, and there is no shortage of objections on social media, and many Twitter users believe that in Japan, where the number of children is increasing, if same-sex marriage is legalized, the birth rate will further decline. Some netizens pointed out that once same-sex marriage is approved, it is foreseeable that "polygamy" and "underage marriage" may be taken into account, which will have an impact on Japanese society.
Miwaku believes that the key to legalizing same-sex marriage lies in using various ways to call on all sectors of society to support same-sex marriage, and at the same time to explain in detail the problems that may arise from the legalization of same-sex marriage to eliminate people's uneasiness.
According to a new report released by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, since the Netherlands became the first country in the world to legalize same-sex marriage in 2001, as of December 2020, same-sex marriage has been recognized in 29 countries and regions around the world, mainly in Europe and North and South America. In Asia, only Taiwan recognizes same-sex marriage.
Editor-in-charge: Hu Zhenqing
Proofreader: Yijia Xu