PHOTO: Nagoya High Court building, by Evelyn-Rose, via Wikimedia Commons.
So many courts in Japan have found the country not allowing same sex couples to marry unconstitutional that we are having trouble thinking of new, catchy titles for articles. Hopefully, parliament will listen and we won’t have to! (See our coverage of previous cases here and here.)
On the 7 March, the Nagoya High Court released its verdict in a case regarding the constitutionality of Japan’s lack of marriage equality and found resoundingly that it is, indeed, unconstitutional. Specifically, it found that Japan’s civil and family registry laws violate the Japanese Constitution’s 14th and 24th articles. As with other cases, the court did not find the Japanese government liable for legislative inaction and as such did not award damages. [1]
As a recap for readers, the first clause of the 14th article of Japan’s constitution states that “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.” In other words, it is an equal protection clause. The 24th article covers marriage. In this instance, the court focused on the second section, which states that with regards to marriage and other family matters “…laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.” [2]
Civil and family registry laws stipulate that those who can enter into a marriage are to be “husband and wife”, with the two terms regarded as being specifically sexed. This means that, while Japanese law does not explicitly ban same sex marriage, it disallows it due to how the laws are worded.
The Nagoya High Court found that because the institution of marriage confers important societal and legal benefits to the individual, disallowing it without any rational reason to do so is a violation of both equal protection and dignity of the individual and equality of the sexes.
This makes Nagoya the 4th high court to make such a finding. On 25 March, the Osaka High Court is due to render its decision, potentially making for a five out of five high court run. Another case before the Tokyo High Court is also underway at this moment, but the decision appears to be a ways off still. [3]
How do marriage inequality and discrimination cause harm? Let us count the ways.
While much of the decision is similar to previous high court decisions handed down, a few sections are worthy of note.
The first is that, while at one time marriage was more closely tied to producing offspring, this is no longer the case. Today, the connection a couple forms is seen as being the prime reason for entering into a marriage. As such, the court sees the need to update the law in a way that reflects this change in values. They see current law as being unconstitutional in part because it has not kept up with the times, as shown by the majority of Japanese citizens voicing support for marriage equality as well as Japan being an outlier in the G7 as the only nation to still lack it. They also go so far as to point out that a Japanese lesbian couple were granted refugee status in Canada due to the discrimination they faced within Japan. [4]
In another section, the court enumerates an extensive list of laws that are directly impacted by marital status, ranging from not only marriage laws themselves, but also to divorce and estate separation in divorce, legal relationships to children (including adopted children), requirements for becoming a dependant, inheritance laws, and others. One area of particular importance regarding inheritance is that same sex couples cannot take advantage of Japan’s estate taxes and instead are taxed under the much more punitive gift tax.
And this is only in regards to civil law. The court goes on to note other areas such as social services, and even criminal law where same sex partners may not be able to seek relief or to be allowed to participate in proceedings when their partner is the victim of a crime due to their lack of marital status.
Child Welfare In Focus
While there are many areas the decision looks at, one thing in particular that appears to be new as well as important is in regards to child welfare, most notably when a same sex couple looks after a foster child. This appears to have been made a focus due to one of the plaintiff couples having a foster child in their care. Children in foster care can in some instances be adopted by their foster parents, but only if those parents are married under Japanese law. While the couple may be recognized through one of the different systems set up by local governments around Japan (our write-ups of these are available here and here), none of these fulfill the requirement for the couple to be married for the purpose of adoption. As such, even though same sex partners are in no way different from any other married couple, they are not recognized under Japanese law, and therefore ineligible to legally adopt.
What this can mean is that everything from medical decisions to what schools the foster child can attend all require the approval of their legal parents, creating potential complications for the life and wellbeing of the child.
Why can’t we have “separate but equal”? Here’s why.
They also note that alternative systems are not desirable, as the effort it would take to create a separate system and then modify existing laws to include it pale in comparison with the ease with which simple changes to existing marriage laws to allow same sex marriage would accomplish the same thing. They also note the need that would likely arise to reinterpret existing laws to determine whether couples under this new system would be covered or not. This would clearly create situations where legal interpretations could lead to exclusion.
It’s important to note that conservative politicians in Japan, when attempting to appear conciliatory, often suggest the creation or expansion of alternative systems. A similar situation exists with the debate over allowing use of separate surnames for married couples. Currently, when a couple marries, they are required to both use the same surname, meaning one of the pair will need to not only ditch their old name, but also go through all the time and effort required to update documents, business cards, and all other manner of record to reflect their new surname. As virtually all couples end up using the husband’s surname, the hard work and stress of making the change (not to mention the stress some feel over losing part of their identity) falls almost exclusively on women. Conservatives in Japan have proposed expanding the use of aliases, which some women currently use in the workplace or in publishing when they marry mid-career. However, aliases may not alleviate the underlying issues, and will likely continue to keep the burden of managing multiple identities on women. [5]
Alternative systems for marriage have already shown the limits of what they can do, and national implementation of a “separate but equal” system would no doubt wind up falling short of out-and-out marriage equality.
What is the Transition Law Doing Here?
In a somewhat unexpected twist, the decision mentions Japan’s legal transition law in two places. The first instance is where the decision notes that, although one can technically change their legal sex, this does not alleviate all the issues that same sex couples face, especially as one cannot change their sexual orientation or gender identity. Why a need was felt to note this in the decision is not clear at present, but it gives dark overtones of thinking that exists in other countries where same sex relationships are outlawed. [6]
The other is in regards to the legal definition of parent (namely mother and father) in Japanese law. A trans man who transitioned and married a cis woman had a child via a sperm donor. Although the trans man had no biological relationship with the child, he was still granted recognition as the child’s legitimate father by the Japanese Supreme Court. This was used in the Nagoya decision to illustrate that even when a child has no biological relationship with a parent, this causes no confusion, legal or otherwise. “Confusion”, whether it be individual or societal, is often cited as a reason to continue to deny LGBT rights in Japan. [7]
Closing thoughts: is the nation getting closer to marriage equality?
Several months after the start of the current session of Parliament, Prime Minister Ishiba appeared to plead with parliament for someone to introduce a bill that would enshrine marriage equality into law (See the end of our article here). This seems to indicate that within Ishiba’s party, the LDP, there is likely no will to do so, meaning it would fall on the country’s other parties to produce a bill that may or may not have a chance of passing parliament. However, given that the nation’s chief focus has been on the economy and the relationship with the new American administration, it seems that marriage equality has been all but forgotten. Whether this will change when the upper house elections are convened later this year is unclear.
If things continue as they have been and parliament continues to refuse to act, the Supreme Court may eventually take action instead. What happens next, however, is less clear. In the past, parliament has responded to declarations of unconstitutionality in a variety of ways, including preemptively altering laws before a final decision is rendered by the Court. However, as with the changes to Japan’s legal transition law, they may also refuse to act at all, instead using administrative steps in lieu of altering existing law (for an overview of this issue, see our reporting here).
What is clear is that the days of inequality appear to be numbered, and many people throughout the country are eagerly waiting for that day to arrive.
[1] Link to decision via call4.jp available here (pdf). [2] Translations via Japanese Law Translation. [3] See call4.jp for information on marriage equality cases. [4] “Japanese lesbian couple granted refugee status in Canada” 18 May 2024, Asahi Shimbun. [5] For an overview, see Jay Allen “Poll: Over Half of Married Japanese Women Wanted to Keep Their Maiden Names”, 6 March 2025, Unseen Japan. [6] For an example of this in Iran, see Ali Hamedani “The gay people pushed to change their gender”, 5 November 2014, BBC. [7] For more on this case, see Rochelle Sampy “Japan: Supreme Court awards legal parental status to trans man”, 12 December 2013, Pink News.
