Gay Rights In Japan

Lesbian, gay, bisexual, transgender, and queer ( LGBTQ) people in Japan have fewer legal protections than in most other developed countries, although some developments towards stronger rights have been made in the 2020s. Same-sex sexual activity was criminalised only briefly in Japan's history between 1872 and 1881, after which a localised version of the Napoleonic Penal Code was adopted with an equal age of consent. Same-sex couples and households headed by same-sex couples are ineligible for the legal protections available to opposite-sex couples, although since 2015 some cities and prefectures, covering over 60% of the population by 2023, offer "partnership certificates" to recognise the relationships of same-sex couples and provide some legal benefits. Japan is the only country in the G7 that does not legally recognize same-sex unions nationally in any form. In March 2021 and May 2023, the Sapporo and Nagoya District Courts ruled that not recognising same-sex marriage was a violation of the Constitution respectively. While in June 2022, the Osaka District Court ruled that not recognising same-sex marriage was not a violation of the Constitution, in November 2022, the Tokyo District Court ruled that the absence of same-sex marriage legislation was an unconstitutional state of affairs but did not violate the Constitution, though the court's ruling has no immediate legal effect. In June 2023, the Fukuoka District Court ruled that the ban on same-sex marriage was constitutional. A second ruling in September 2023 concluded that same-sex relationships should not be excluded from Japan's marriage system.

Japan's culture and major religions do not have a history of hostility towards homosexuality. A 2019 poll indicated that 68 percent of the respondents agreed that homosexuality should be accepted by society, while 22 percent disagreed. Although many political parties have not openly supported or opposed LGBTQ rights, there are several openly LGBTQ politicians in office. The conservative Liberal Democratic Party, Japan's leading political party, remains opposed to same-sex marriage, while two other major parties, the liberal Constitutional Democratic Party and libertarian Innovation Party both favor same-sex marriage. As of 2023, marriage equality movements have been gaining prominence within the nation. A law allowing transgender individuals to change their legal gender post- sex reassignment surgery and sterilization was passed in 2003. The sterilization requirement was unanimously ruled by the Japanese Supreme Court to be unconstitutional in October 2023, removing the requirement. Discrimination on the basis of sexual orientation and gender identity is banned in some cities, including Tokyo.

Tokyo Rainbow Pride has been held annually since 2012, with attendance increasing every year. A 2015 opinion poll reflected that the majority of its respondents supported the legalization of same-sex marriage. Further opinion polls conducted over the following years have found high levels of support for same-sex marriage among the Japanese public, most notably the younger generation. However, a 2020 survey of over 10,000 LGBTQ people in Japan found that 38 percent of LGBTQ people had been harassed or assaulted.

History

Homosexuality and same-sex relations have been documented in Japan since ancient times. One Shinto myth describes same-sex love as being introduced by the couple Shinu no Hafuri and Ama no Hafuri, servants of a "primordial goddess", presumably Amaterasu. Following Shinu's death, Ama killed himself, and the two were buried in the same grave.

In the pre-Meiji era, ''nanshoku'' (男色) relationships inside Buddhist monasteries were typically pederastic. The older partner, or , would be a monk, priest or abbot, while the younger partner was assumed to be an , who would be a prepubescent or adolescent boy. The relationship would be dissolved once the boy reached adulthood (or left the monastery). Both parties were encouraged to treat the relationship seriously and conduct the affair honorably, and the ''nenja'' might be required to write a formal vow of fidelity.Pflugfelder, Gregory M. (1997). ''Cartographies of desire: male–male sexuality in Japanese discourse, 1600–1950''. University of California Press. p. 26, 39–42, 75, 70-71, 252, During the Tokugawa period, some of the Shinto gods, especially Hachiman, Myoshin, Shinmei and Tenjin, "came to be seen as guardian deities of ''nanshoku''" (male–male love).

From religious circles, same-sex love spread to the warrior ( samurai) class, where it was customary for a boy in the '' wakashū'' age category to undergo training in the martial arts by apprenticing to a more experienced adult man. The relationship was based on the typical ''nenja,'' who loves, and the typically younger ''chigo'', who is loved.Furukawa, Makoto. The Changing Nature of Sexuality: The Three Codes Framing Homosexuality in Modern Japan. pp. 99, 100, 108, 112. The man was permitted, if the boy agreed, to take the boy as his lover until he came of age. Leupp, Gary (1997).br>''Male Colors: The Construction of Homosexuality in Tokugawa Japan''
University of California Press. ., p. 26, 32, 53, 69-78, 88, 90- 92, 95-97, 102, 132-135. These relationships were expected to be exclusive, with both partners swearing to take no other (male) lovers.

As Japan progressed into the Meiji era, same-sex practices continued; however, there was a growing animosity towards these practices. The practice of ''nanshoku'' began to die out after the Russo-Japanese War. Opposition to homosexuality did not become firmly established in Japan until the 19th and 20th centuries, through the Westernization efforts of the Empire of Japan, although it was only criminalized between 1872 and 1881.

Terminology

Modern Japanese terms for LGBTQ people include .

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Legality of same-sex sexual activity

There are no explicit religious prohibitions against homosexuality in the traditional religion of Japan, Shinto, or in the imported religions of Buddhism (see " Buddhism and sexual orientation"); however Chinese Confucianism prohibited homosexual marriage which may have also influenced Chinese Buddhism.

Sodomy was first criminalized in Japan in 1872, in the early Meiji era, to comply with the newly introduced beliefs of Western culture and the Qing legal codes. But this provision was repealed only seven years later by the Penal Code of 1880 (commenced in 1882) in accordance with the Napoleonic Penal Code. Since then, Japan has had no laws against homosexuality. Thus, sexual activity among consenting adults, in private, regardless of gender and/or sexual orientation, is legal under Japanese law. Since June 2023, age of consent has been set at 16 years.

Recognition of same-sex relationships

Article 24 of the Japanese Constitution states that " Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis." Articles 731 to 737 of the Japanese Civil Code limit marriage to heterosexual couples. Same-sex couples are not able to marry, and same-sex couples are not granted rights derived from marriage. Also, same-sex marriages performed abroad are not legally recognized in Japan and bi-national same-sex couples cannot obtain a visa for the foreign partner based on their relationship, though the Ministry of Justice does have a general rule of giving the discretionary "designated activities" visa to same-sex married spouses. Japan and Italy are the only countries in the G7 where same-sex marriages are not performed.

In March 2009, Japan began allowing Japanese nationals to marry same-sex partners in countries where same-sex marriage is legal. The Justice Ministry instructed local authorities to issue key certificates, which state that a person is single and of legal age, to individuals seeking to enter same-sex marriages in areas that legally allow it.

In February 2015, the ward of Shibuya (in Tokyo) announced plans to establish a partnership system that would recognize same-sex couples for situations such as hospital visits and shared renting of apartments. This procedure allows couples to get a "proof of partnership" paper, which does not have any weight under Japanese law but can help in, for instance, getting access to a partner who is ill and in hospital but institutions are under no legal obligation to respect the certificates. The Shibuya system is considered a significant step towards lesbian and gay partnership rights in Japan. In July 2015, Tokyo's Setagaya ward announced that it would be joining Shibuya in recognizing same-sex partnerships from November of the same year. Since then, over 400 municipalities have begun issuing partnership certificates, including highly populated Yokohama, Osaka, Sapporo, Fukuoka, Kyoto, Kawasaki, Saitama and Hiroshima, as well as 30 prefectures, including Tokyo, Ibaraki, Osaka, Gunma, Saga and Mie.

On 17 March 2021, a district court in Sapporo ruled that laws or regulations that deprive same-sex couples of the right to marry constitute unlawful discrimination and violate Article 14 of the Constitution of Japan. The court found that Article 24 does not prohibit the recognition of same-sex marriages. The ruling did not legalize same-sex marriage in Japan, but is likely to step up pressure on the National Diet to act.

Yasuhiko Watanabe, a law professor at Kyoto Sangyo University, stated that if Japan recognizes same-sex marriage, that would impact the whole of Asia, proving that it is allowed not only in Western societies.

On 26 June 2022, a district court in Osaka brought down a conflicting ruling to the ruling from the previous year out of Sapporo. It ruled that a ban on same-sex marriage is not unconstitutional. The ruling did not change the legal status of same-sex marriage in Japan as it did not occur at a court with the power to set binding legal precedent. The plaintiffs have indicated plans to appeal the decision. Other similar court cases in other district courts in Tokyo, Nagoya and Fukuoka remain ongoing. In addition, the Tokyo metropolitan government recently announced a plan, set to take effect in October, to accept registrations from same-sex couples seeking certificates of their partnerships. On 1 November, Tokyo finally implemented a legally recognised relationship registration scheme for same-sex couples. In August 2023, Wakayama Prefecture proposed to locally introduce Japan's partnership system for same-sex couples.

In July 2022, Japanese video game company Nintendo announced its support for same-sex marriage and that it would recognize employees in same-sex partnerships as identical to opposite-sex marriages, in defiance of Japanese law. The company's policy has been described as a major action in Japan's increasing discussion on its same-sex marriage ban.

Adoption and parenting

Same-sex couples are generally not allowed to legally adopt in Japan, though in some regions it is legally complicated. Lesbian couples and single women are unable to access IVF and artificial insemination. In December 2022, a "very broad and comprehensive fertility bill" was introduced in Japan - that explicitly and legally only allows heterosexual married women access to IVF treatment.

In April 2017, Osaka officially recognised a same-sex couple as foster parents, making it the first such case in Japan.

53 municipalities and Tokyo Metropolis have also established a "partnership family system" (, ') as of April 2023. This system, which allows registered partners to optionally designate children in the household through the partnership oath system in a limited form of second-parent adoption, also recognises the children of same-sex couples, and allows partners to make medical decisions for their child, and to pick up their children at schools and kindergartens (whereas previously only the biological parent was allowed to pick up the child). The first to establish this system was Akashi, Hyōgo in January 2021 followed by Tokushima in February 2021 and Adachi, Tokyo in April 2021.

Discrimination protections

As of 2021, sexual orientation and gender identity are not protected by national civil rights laws, which means that LGBTQ Japanese have few legal recourses when faced with discrimination in such areas as employment, education, housing, health care and banking. According to a 2018 Dentsu Diversity Lab survey, more than 65% of questioned LGBTQ people said they had not come out to anyone at work or home.

The Japanese Constitution promises equal rights and is interpreted to prohibit discrimination on all grounds. However, homosexual and transgender persons can experience physical, sexual and psychological violence at the hands of their opposite-sex or same-sex partners, but receive limited protection from the law. Same-sex partners are excluded from the '' Act on the Prevention of Spousal Violence and the Protection of Victims'' ( ja, 配偶者からの暴力の防止及び被害者の保護等に関する法律) and generally lack safe places where they can seek help and support.

In 2013, Yodogawa-ku, Osaka, became the first Japanese government area to pass a resolution officiating support for LGBTQ inclusion, including mandating LGBTQ sensitivity training for ward staff. Naha followed suit in July 2015.

In October 2018, the Tokyo Metropolitan Assembly passed a law prohibiting all discrimination on the basis of sexual orientation and gender identity. The law, which took effect in April 2019, also commits the Metropolitan Government to raise awareness of LGBTQ people and "conduct measures needed to make sure human rights values are rooted in all corners of the city". The law outlaws expressing hateful rhetoric in public. Prior to this, the wards of Shibuya and Setagaya had already passed explicit protections for LGBTQ people.

In December 2018, four political parties, the Constitutional Democratic Party of Japan, the Democratic Party for the People, the Japanese Communist Party, and the Liberal Party, along with the support of several independents, introduced to the House of Representatives a bill entitled the ''Proposed Law on the Promotion of the Elimination of Discrimination based on Sexual Orientation and Gender Identity'' ( ja, 性的指向又は性自認を理由とする差別の解消等の推進に関する法律案) to prohibit discrimination, harassment and bullying at schools on the basis of sexual orientation.

In March 2019, legislation banning discrimination against "sexual minorities" was passed in Ibaraki Prefecture.

Human Rights Watch, J-ALL (Japan Alliance for LGBT Legislation) and Athlete Ally urged Prime Minister Shinzo Abe to support legislation protecting LGBTQ people against discrimination on the basis of gender and sexual orientation. On 17 April 2020, 96 human rights and LGBTQ organizations sent a letter to the Prime Minister calling for the passage of a non-discrimination law.

In April 2022, legislation prohibiting discrimination among others sexual orientation and gender identity came into operation in Akita Prefecture.

Employment discrimination

While the ''Equal Employment Opportunity Law'' ( ja, 男女雇用機会均等法) has been revised several times over the years to address sex discrimination and harassment in the workplace, the government has refused to expand the law to address discrimination against gender or sexual identity. The Tokyo Metropolitan Government has passed legislation banning discrimination in employment based on sexual orientation and gender identity.

Companies in Japan consisting of ten or more employees are required to establish work regulations. In January 2018, the Ministry of Health, Labor and Welfare revised the Model Rules of Employment (モデル就業規則) which "stands as the example framework for work regulations", to prohibit discrimination based on sexual orientation and "gender identification". Article 15 reads:

Housing discrimination

In 1991, the group OCCUR (Japan Association for the Lesbian and Gay Movement) filed a court case against the Tokyo government after being barred from using the "Metropolitan House for Youth" the previous year. OCCUR won the case in 1997. While the court ruling does not seem to have extended to other areas of government-sponsored discrimination, it is cited by the courts as a civil rights case.

Since autumn 2003, the Urban Renaissance Agency, the government agency that operates government housing has allowed same-sex couples to rent units the same way as heterosexual couples at any one of the over 300 properties that it operates. This opened the way for more such action, as the Osaka Government in September 2005 opened the doors of its government housing to same-sex couples.

In February 2018, the Ministry of Health, Labor and Welfare created provisions addressing discrimination in housing, stating that "consideration must be taken to not deny lodging on the basis of sexual orientation or gender identity."

In October 2020, '' The Guardian'' reported that several Japanese love hotels were denying entry to same-sex couples for the sole reason of their sexual orientation, despite it being illegal under federal law since 2018 as per the guidelines issued by the Ministry of Health, Labor and Welfare.

Bullying in schools

In 2017, the Education Ministry added sexual orientation and gender identity to its national bullying policy. The policy mandates that schools should prevent bullying of students based on their sexual orientation or gender identity by "promoting proper understanding of teachers on … sexual orientation/gender identity as well as making sure to inform on the school's necessary measures regarding this matter."

Others

In January 2018, after a high-profile incident in 2015 in which a gay student at Hitotsubashi University died by suicide after being outed against his will, the city of Kunitachi passed an "anti-outing" ordinance to promote understanding of LGBTQ people. Mie Prefecture passed a similar "anti-outing" law in March 2021.

LGBT Understanding and Enhancement Act

In June 2019, after three years of consultations, a special committee of the ruling Liberal Democratic Party (LDP) announced the ''LGBT Understanding and Enhancement Bill'', which aims to improve understanding of LGBTQ issues, would be introduced to the National Diet. However, LGBTQ rights activists criticized the bill for falling short by not mentioning same-sex marriage or anti-discrimination protections.

In April 2021, the LDP announced it would pass the ''LGBT Understanding and Enhancement Bill'' during the 204th National Diet session, set to end in June for the 2020 Summer Olympics and Paralympics in Tokyo. The bill only requires the government to "promote understanding of LGBT people" and does not actually ban discrimination. However, the bill was not enacted in 2021.

On 16 June 2023, the "watered down" private member's bill on enhancement of LGBT understanding formally passed both houses of the National Diet of Japan for the 49th G7 summit in Hiroshima, with majority support from the Liberal Democratic Party, Komeito, Nippon Ishin no Kai and Democratic Party for the People.

The ''Act on Enhancement of Public Understanding of Diversity in Sexual Orientation and Gender Identity'' ( ja, 性的指向及びジェンダーアイデンティティの多様性に関する国民の理解の増進に関する法律), ''LGBT Understanding and Enhancement Act'' ( ja, LGBT理解増進法) (in short title) came into effect on 23 June 2023.

Transgender rights

Passage of the law on gender recognition

In 2003, a law was passed allowing transgender people to change their gender marker on legal documents. Approval required being over 18 years old, unmarried, undergoing sex reassignment surgery, sterilization (until 2023), and having no children under 18 (the majority age, which changed from 20 to 18 on 1 April 2022). The law, known as the ''Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder'' ( ja, 性同一性障害者の性別の取扱いの特例に関する法律) or simply ''Law 111'', went into effect in July 2004, and was upheld by the Supreme Court of Japan in January 2019. By that date, 7,000 persons had legally changed gender. The court wanted to prevent "confusion" within parent-child relations, as well as "abrupt changes" in Japanese society. Two of the majority

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