On 30 October 2024, the Tokyo High Court ruled that the Japanese government’s refusal to extend marriage rights to same-sex couples constitutes “legal discrimination based on sexual orientation”, and is unconstitutional. This follows the landmark ruling from the Sapporo High Court in March, deeming the ban on same-sex marriage unconstitutional. While there is limited recognition of same-sex partnerships by some local and municipal governments, they do not provide the same protections and rights as marriage with regards to, inter alia, inheritance, joint custody of children, and spousal visas.
The Tokyo High Court has ruled that the lack of recognition for same-sex marriage in the Civil Law and Family Register Law has “no rational basis” and was in violation of Article 14 paragraph 1 of the Constitution, which declares that everyone is equal under the law, and Article 24 paragraph 2 which provides that the laws on marriage "shall be enacted from the standpoint of individual dignity and the essential equality of the sexes." The Court further added that while the establishment of a partnership system separate from marriage is possible, if the same rights and protections given to heterosexual couples are not extended to same-sex couples any alternative system would still result in legal discrimination and be unconstitutional. The court also said that raising children is not an essential purpose of marriage, and that recognition of same-sex marriages will not affect the legal protections afforded to heterosexual married couples. The Court, however, rejected the plaintiff’s claim of financial compensation from the government, upholding the decision from Tokyo District Court.
The judicial activism for same-sex marriage across Japan has been ongoing. Sapporo District Court in March 2021 first stated that the government’s failure to recognize same-sex marriages was unconstitutional—a decision which was later upheld by the Sapporo High Court in March 2024. Four other district courts have also reached a similar verdict since, with Fukuoka District Court in June 2023 and Tokyo District Court in November 2022 holding that rather than courts, the parliament needed to address the issue through legislation. While the current rulings do not guarantee equal rights, they add pressure on the Japanese government to amend discriminatory marriage laws. The Minister of Justice stated on 30 October 2024 that they are closely monitoring the various high court decisions on the issue.
“Both the Sapporo High Court and the Tokyo High Court went further than the district court decision, which we highly appreciate. In particular, both judgments, while acknowledging that the Diet has a certain amount of legislative discretion, point out the problem of creating a different system for same-sex couples than for opposite-sex marriages. We believe that this will serve as a check against some Diet members who advocate the introduction of institutions different from marriage, such as civil unions,” Takeharu Kato, Director at Marriage for All Japan said. “Prime Minister Ishiba, who took office after the latest election, has also expressed support for same-sex marriage. These changes in the political environment are also on our side. We will continue our efforts to achieve marriage equality in Japan as soon as possible.”
Currently, many municipalities in Japan—including the capital Tokyo—have implemented a partnership certificate system for same-sex couples. Under this system, when two people (where at least one of whom is a sexual minority) notify the municipal government that they are in a partnership, the municipality will issue a certificate of acceptance. Although it has no legal effect, many municipalities will consider them as family members when they present the certificate, which confers certain privileges with respect to accessing public housing, insurance, and for medical consent.
"The Tokyo High Court’s ruling declaring the ban on same-sex marriage unconstitutional is a landmark affirmation of equality, justice, and human dignity. By recognizing that love and commitment transcend gender, the court has challenged discriminatory legal frameworks and underscored the urgent need for legislative action. This decision, alongside similar rulings across Japan, highlights a growing judicial momentum that must be matched by the Diet to ensure equal rights and protections for all couples. Partial measures, such as partnership systems, fall short of true equality. Across Asia, from Thailand’s historic legalization of same-sex marriage to ongoing advocacy in India, Nepal, and Singapore, we are witnessing a regional shift toward embracing diverse families. ILGA Asia applauds this progress and urges the Japanese government to uphold the principles of dignity and equality by enacting full marriage equality without delay." Henry Koh, Executive Director at ILGA Asia.
The developments in Japan are indicative of growing trends of acceptance of same-sex relationships across Asia, following legalization of same-sex marriage in Thailand earlier this year and ongoing judicial efforts in many countries like India, Nepal and South Korea. ILGA Asia applauds the recent decision from Tokyo High Court, as well as other jurisdictions in Japan, that have stood on equality and stated the lack of recognition of same-sex marriage to be unconstitutional. We urge the Japanese government to provide equal marriage to all couples, regardless of their gender or sexual orientation, providing them the same legal rights, protections, and dignity.
