Japan’s ban on same-sex marriage is unconstitutional, second high court rules

A second Japanese high court ruled on Wednesday that the government's policy against same-sex marriage is unconstitutional, marking another step forward in the series of decisions supporting plaintiffs' demands for marriage equality.

As ‘The Associated Press’ reports, the Tokyo High Court described the ban as “a groundless legal discrimination based on sexual orientation,” stating it contravenes the constitutional guarantee of equality and individuals’ dignity, as well as equality between sexes. This was a stronger statement than the 2022 lower court decision, which had called the situation “an unconstitutional state.”

The Sapporo High Court ruling in March concluded that refusing same-sex couples the right to marry and access the same benefits as heterosexual couples infringes upon their fundamental rights to equality and freedom of marriage. Wednesday’s ruling is the seventh overall to find the ban unconstitutional or nearly so, countering just one district court decision that deemed it constitutional. These rulings can still be appealed to the Supreme Court.

In the ruling, Presiding Judge Sonoe Taniguchi noted that marriage is not solely for producing offspring but also for providing a stable legal status for partners, with no rational basis for excluding same-sex couples. She highlighted a shared international consensus opposing discrimination based on sexual orientation.

Chief Cabinet Secretary Yoshimasa Hayashi stated that Wednesday’s ruling has not been finalised, and the government will continue monitoring other ongoing court cases.

Nevertheless, the recent victories have increased optimism among the LGBTQ+ community.

Plaintiffs celebrated outside the court on Wednesday, with supporters displaying banners bearing messages like “Further advance toward marriage equality!” and “No more waiting for legal revision!”

Makiko Terahara, a lawyer representing the plaintiffs, praised the ruling as historic and urged the government to immediately take steps “to open the door for marriage equality.”

“I felt grateful to be alive when I heard the word ‘unconstitutional’ from the judge,” said Yoko Ogawa, a plaintiff in her 60s. She expressed concerns about the lack of legal protection for her and her partner as they age, hoping for rapid progress toward legalisation.

Japan’s conservative Liberal Democratic Party, which represents the main obstacle, lost its parliamentary majority in Sunday’s election and may need to compromise on liberal policies advocated by opposition parties, such as marriage equality, which enjoys significant public support.

Japan remains the only G7 country that does not recognise same-sex marriage or offer any legally binding protections for LGBTQ+ couples.

Since 2019, six lawsuits advocating for marriage equality have been filed in five regions across Japan. LGBTQ+ activists and their supporters have intensified their efforts, resulting in the government adopting a non-legally binding law in 2023 declaring discrimination unacceptable.

Some municipalities have issued partnership certificates as a temporary solution for same-sex couples, helping reduce discrimination such as difficulties in renting apartments, but these do not provide the same legal benefits as those available to heterosexual couples, as stated in Wednesday’s ruling.

However, the court denied the plaintiffs’ request for the government to compensate them 1 million yen (about £5,000) each for damages suffered under the current system that fails to recognise them as legally married.

On Tuesday, the United Nations women’s rights committee in Geneva issued a report urging the Japanese government to amend the civil code to allow married couples to retain separate surnames. The report highlighted that the existing law effectively forces most women to adopt their husband’s surname—an issue that the LDP has failed to address for decades.

The U.N. committee also recommended revising the male-only succession rule under the Imperial House Law to permit a female emperor.

Hayashi criticised the report as “regrettable” and “inappropriate,” asserting that imperial succession concerns national foundation rather than constitutional basic rights.