Japan lacks comprehensive legal protections against discrimination on the grounds of sexual orientation and gender identity, as well as same-sex relationship recognition laws. There have been some promising recent legal developments, but strategies for reform might be usefully reconsidered.

Pride has come to resonate with (metropolitan) queers around the world. Not unlike a novel production of a well-known play, however, Pride is performed a little differently with each new geographical iteration. As Pride is taken up outside the Anglo-American West, its affirmative core is maintained, but the connotations of the message and the mode of its delivery change in a way that suits local conditions and sensibilities.

Take Pride parades in Japan. To an observer used to Sydney’s Mardi Gras, Tokyo Rainbow Pride might look like a tame affair. But it would be incongruous for it to look any different from what it does – nor, of course, is there any good reason why it should. It is a virtual cliché of intercultural communication theory that Japanese interlocutors recoil from open confrontation, and may often speak by indirection. A less in-your-face public celebration of queerness makes perfect sense in Japan.

This is not to say that Japanese queers don’t have grounds for complaint. Japan lacks the virulent homophobia typical of many cultures steeped in the Judaeo-Christian tradition, but Japanese society remains considerably heteronormative. Although same-sex sexual activity is legal in Japan, media stereotypes continue,  and coming out is often difficult. Additionally, there are no same-sex relationship recognition laws: a minority bill to legalise same-sex marriage was submitted in June 2019, but remains to be deliberated in the Diet. Meanwhile, the means by which some Japanese same-sex couples may try to legally secure their status were not designed having gay relationships in mind, and are not quite fit for purpose.

Japan also lacks country-wide comprehensive protection against discrimination of LGBTQ people. This lack of legal protections has concrete consequences. According to Amnesty International, discrimination in employment is common. Discrimination against same-sex couples wishing to rent or take up mortgages is also a problem, causing unnecessary hardship for same-sex couples wishing to build a life together.

Activists have been trying to capitalise on the momentum generated by the Tokyo Olympics, given the International Olympics Committee’s commitment to LGBTQ equality, demanding legal protection against discrimination. But the most the ruling Liberal Democratic Party (LDP) agreed to was to submit to the Diet a draft LGBT Equality Act seeking to promote understanding, but failing to make any provision for the right to be free from discrimination. In the event, the text of the draft act was changed so as to include a statement declaring discrimination on the ground of sexual orientation and gender identity “unacceptable,” but the LDP then failed to submit it to the Diet at all before the relevant session closed ahead of the Games.

On the relationship recognition front, in recent years tensions have emerged between the approach of the national government, largely opposed to same-sex relationship recognition, and that of local municipalities. An increasing number of these has been affording same-sex couples the opportunity to formalise their relationship, resulting in limited – legally unenforceable – consequences.

There have also been tensions in the approaches taken by different courts. In 2020, the Nagoya District Court (Aichi) held that same-sex couples should not be treated like different-sex de facto couples for the purposes of compensating surviving spouses for the loss of their partners due to criminal acts. On the other hand, same-sex lovers have been found to be both responsible for and entitled to adultery-related damages, respectively in a 2021 decision of the Tokyo District Court and in a 2020 ruling of the Tokyo High Court affirming the decision of the Moka branch of the Utsonomiya District Court, Tochigi. The High Court explicitly insisted on the functional equivalence between (some) same-sex relationships and heterosexual marriage.

The question of same-sex relationship recognition also has implications for transgender people in Japan. This explains why some Japanese trans people have been campaigning for same-sex marriage alongside LGB people. Since legal recognition for trans people in Japan requires gender reassignment surgery (as confirmed by the Supreme Court in 2019), a pre-operative or non-operative trans person with a partner of the same birth-sex is unable to marry, because, for legal purposes, they are not recognised as a different-sex couple. Thus, the introduction of same-sex relationship recognition laws would also benefit heterosexual pre-operative and non-operative trans people in Japan, at least until the laws on gender recognition are liberalised.

A 2019 case involving a non-operative South-East Asian trans woman partnered with a Japanese man illustrates the intersection between matters of trans recognition and same-sex relationship recognition in Japan. The pair was unable to marry and secure a visa for the trans woman, because by law she is considered male, yet she obtained leave to remain in Japan from the Justice Ministry, on the ground of her relationship. This outcome can be read either as an implicit affirmation of her gender identity as female, and of her relationship as a de facto heterosexual one, functionally equivalent to marriage; or as implying that same-sex relationships should be treated on a par with heterosexual marriages for at least some legal purposes.

The most significant recent legal development, however, is the first judgment in the so-called “Valentine Day lawsuit,” launched in several district courts in February 2019 with a view to spearheading same-sex marriage law reform. In March, the Sapporo District Court ruled that the failure to legally recognise same-sex marriage was unconstitutional. Will the Supreme Court take the same view if the case reaches it?  Given its legendary self-restraint when exercising its power of judicial review, its reluctance to see the Constitution as a source of legally enforceable obligations, and the limits of the dialogic approach it tends to favour, I doubt that same-sex marriage reform can be achieved via the judicial branch in Japan.

This leaves the political branch. However, though a sizeable minority of 115 members (out of a total of 710) of the National Diet have publicly declared their support for gay marriage, less than a dozen of them belong to the ruling LDP. The symbolism of marriage may be simply too much for conservative Japanese lawmakers consumed with anxieties about upsetting traditional values. Such fears, however, loom much larger in the minds of politicians than in the population at large: nearly 80 percent of Japanese adults aged 20-59 support same-sex marriage.

One may speculate that the symbolism of marriage might matter less to Japanese queers than the practical legal protections associated with relationship recognition, including immigration rights for foreign partners of Japanese citizens. In these circumstances, a reform approach based on Australia’s distinctive model of de-facto same-sex relationship recognition (pioneered in New South Wales, where it predated the introduction of same-sex marriage in federal law by almost two decades) may be a more promising way forward for Japan than campaigning and litigating for the right to marry.

Aleardo Zanghellini is Professor of Law and Social Theory at the University of Reading. His areas of specialisation include the politics and governance of sexuality and gender. Aleardo is the author of two research monographs: The Sexual Constitution of Political Authority: The ‘Trials’ of Same-Sex Desire (2015), and Imaginative Resistance, Queer Fiction and The Law: Same-Sex Desire and the Good Life in Heteronormative Orders (2021), both published by Routledge.

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