As Japan moves closer to marriage equality, a look at its history reveals that heterosexualism became normative only as an appeasement of the West.
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RECENTLY, a Sapporo High Court ruled that a ban on non-heterosexual marriages in Japan is unconstitutional.
The court said that the existing legal framework on marriage, the Japanese Civil Code, 1896 (civil code) which only recognises marriage between men and women, violates Articles 14 (right to equality) and 24 (freedom of marriage) of the 1947 Constitution of Japan.
Japan is the only Group of Seven (G7)— an informal group of seven countries with the most advanced economies— member country that does not offer protection to non-heterosexual couples.
Japan is the only G7 member country that does not offer protection to non-heterosexual couples.
But one look at history reveals that attitudes on gender and sexuality were much more progressive in pre-modern Japan. Unlike Western nations that had first introduced a ban on sodomy, widely understood to comprise the most ‘detestable’ and ‘abominable’ form of sexual conduct, pre-modern Japan embraced diverse sexualities.
From embracing homosexuality in the pre-modern era to homosexuality as a sexual perversion
Japanese scholars argue that homosexual relationships, particularly male-to-male relationships, existed since time immemorial. The evidence of that becomes most apparent during the Edo period, between 1606 and 1868. However, these relationships were based on strict social hierarchies and power dynamics.
During the Edo period, also known as the Tokugawa period, Japan was under the rule of a military government known as the Tokugawa shogunate under Tokugawa Ieyasu.
This was one of the most stable periods in Japanese history, characterised by economic growth, peace and enjoyment of art and culture. The military government was willing to establish trade relations with the Dutch, Portuguese and English apart from China.
However, by 1612, the government felt that the missionaries were a threat to their secular political order. This led to near-complete withdrawal from international trade and isolation from the West. Continuous attempts were made during the period to eradicate Christianity from Japan.
It was around this time the protestant reformation movement in Europe had started to pose challenges to the over-arching authority of the Church. As an attempt to disengage from the Roman Catholic Church, King Henry VIII had passed the ‘buggery law’. It has been claimed that the king’s investigators had found Christian monasteries as dens of “manifest sin, vicious carnal, and abominable living”.
This was mostly the reason why homosexuality became a criminal offence in the West. Since the English colonised most territories of that time, the criminalisation of sodomy was extended to colonised territories such as India and South Africa. It became a global practice.
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In contrast to this, in Japan, homosexual relationships were practised in many different social spheres of public and private life. It was largely classified to include shudo, wakashudo (young companions), and nanshoku.
Shodo, in Japanese, means male–male romantic relationships. The term nanshoku was widely used to describe male-to-male sex.
One of the scholars has described nanshoku as a code that was mainly divided into two models. First, the samurai (warrior class) and the kagema (male prostitute).
In Japan, homosexual relationships were practised in many different social spheres of public and private life.
The samurai model was based on a homosexual relationship between an old nenja (Buddhist monk) and a younger chigo (prepubescent boy). This relationship, often termed as ‘brotherhood contract’, lasted till the chigo’s coming of age.
The homosexual activities were the subject of many literary works of that time. One of the most popular homoerotic literary works was The Great Mirror of Male Love by Ihara Saikaku.
Similar was the practice of wakashudo, where samurai or older monks would take young boys as apprentice. They would guide them in martial arts and poetry, and have sexual relationships with them. Although no specific name was given to the young companions, some people now say that wakashudo had a distinct identity from male and female. In today’s time, the umbrella terminology is a transgender person.
However, from 1868 to 1912, Japan moved towards the risk of colonisation in the Meiji era. The empire was restored and in an attempt to appease the West, sodomy was banned, for the first and last time, in Japan from 1872 to 1880.
In 1872, the government passed the Keikan Code (Sodomy Ordinance) under the Meiji Legal Code. Article 266 of the code stated: “All sodomites will serve 90 days in prison; the nobility and ex-samurai, for their complete shamelessness, will be deprived of their samurai status. The sodomised youth, if under 15 years of age, will not be punished. Rapists will be imprisoned for ten years. In cases where the crimes were only attempted, the sentence will be reduced to one degree.”
Some scholars maintain that although there was a great deal of literature on homosexuality till the Edo period, there was not much after that particularly because free speech was being regulated.
The sodomy ban was repealed on the advice of a French legal scholar, Gustave Boissonade, who suggested that Japan should adopt the Napoleonic Civil Code.
Some scholars say that the influence of the French legal system only briefly stopped the criminalisation of sodomy because Japan never really criminalised it in the first place.
The drafting history of the Napoleonic Civil Code indicates that the code only punished “true crimes” and not those created by “superstition, feudalism, the tax system and despotism”. This could have been the plausible reason why homosexuality was not criminalised under the code.
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It would thus be wrong to interpret that Japan prohibits same-sex marriages because, at the time when it adopted the Napoleonic Civil Code, the latter simply did not envisage same-sex marriage.
However, despite the repeal, Japanese society was affected by the development of early Western scholarships on sexuality, which considered homosexuality as ‘unnatural’ or a ‘deviation’.
At the same time, the evidenced practice of homosexuality has been the reason why Japan’s overwhelming support of same-sex rights including marriage is an inner calling. Unlike the West, which required legislative and judicial interference to change the society’s perception of homosexual relationships.
In an attempt to appease the West, sodomy was banned, for the first and last time, in Japan from 1872 to 1880.
In a 2019 opinion survey conducted by Hiroshima Shudo University, it was found that 64.8 percent of people in Japan supported same-sex marriage. In another survey in 2023, the support had gone upto 74 percent.
What was the status of same-sex relationships in post-war in Japan?
The reason why despite Japan being LGBTQIA+ friendly, it has been unable to grant full-fledged rights to the non-heterosexual community is because its post-war politics is largely dominated by one single party.
The Liberal Democratic Party (LDP) of Japan has been in power since 1955. The conservative right-wing party has consistently opposed same-sex marriage.
Interestingly, a survey conducted before the 2019 House of Councillors elections found that only 9 percent of LDP supports favour same-sex marriage. This data is significantly in contrast to a recent survey where a growing number of LDP supporters favour same-sex marriage.
Professor Masaki Tanuguchi of the Graduate Schools for Law and Politics at the University of Tokyo headed the survey. On the survey results, he said: “It is unusual for public opinion to change this much in just a few years. The ability of political to respond will be tested.”
Despite that, several municipalities and prefectures across Japan began issuing partnership certificates to recognise non-heterosexual relationships in the last decade. However, the partnership certificate does not accrue any legally binding obligations.
In 2015, Shibuya and Setagaya wards in Tokyo enacted ordinances to issue partnership certificates to non-heterosexual couples.
By March 1, 2024, 376 municipalities and 21 prefectures have established a ‘partnership oath system’. The certificate issued to non-heterosexual couples has limited benefits such as use for housing, hospital visitation rights and consenting to surgery for a partner.
In June 2023, the Diet (Parliament of Japan) enacted a law to promote the understanding of LGBTQIA+ people and to protect gender and sexual minorities from “unfair discrimination”. However, the law did not address some of the pressing issues including the right to marry.
Marriage equality movement in Japan
In Japan, significant changes have taken place since 2020. In what is termed as ‘Freedom of Marriage for All’, class action lawsuits have been filed by more than 14 non-heterosexual couples in district courts in Sapporo, Tokyo, Osaka, Nagoya and Fukuoka.
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In one of the first judgments, a Sapporo District Court in 2021 held that the ban on non-heterosexual marriages violates Article 14 (right to equality) of the Japanese Constitution. However, the court added that it does not violate Article 24 which stipulates freedom of marriage based on the consent of both sexes.
Some scholars maintain that although there was a great deal of literature on homosexuality till the Edo period, there was not much after that particularly because free speech was being regulated.
Under the Japanese Civil Code, Article 731 states: “A man may not marry until the completion of his full eighteen years of age, nor a woman until the completion of her full sixteen years of age.”
This is read with Article 24 (freedom of marriage) of the Japanese Constitution, which says: “Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with equal rights of husband and wife as a basis.”
It further adds: “With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.”
In this case, a lawsuit was filed against the Japanese government by three same-sex couples living in Hokkaido. They alleged that the ban on non-heterosexual marriages violated their constitutional rights and sought compensation.
On the violation of Article 14, the court stated that the only difference between homosexual and non-heterosexual couples is the difference of sexual orientation which is not regulated by a person’s will. Therefore, there should not be a difference in the legal benefits received by the non-heterosexual couples.
The court remarked that the deprivation of legal benefits is a “discriminatory treatment” under Article 14 which lacks a rational basis.
However, the court dismissed the compensation claim stating that the debate of marriage equality has just emerged recently and it could not be right to hold that it violates the Japanese Constitution.
Whereas, the Osaka District Court in June 2022 held that there is no violation of the Japanese Constitution because the interpretation of Article 24 suggests that the right of freedom to marry is only intended for marriage between a man and a woman. It disagreed with the ruling of Sapporo’s court.
But the court clarified that its judgment should not be interpreted as prohibiting non-heterosexual marriages as the issue has to be decided democratically taking into account the “country’s tradition, national sentiments and marital and parent-child relationship of each era”.
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The court added that depending upon the social condition, it could be a violation of the Japanese Constitution if legislative measures are not taken to allow non-heterosexual marriages.
The Liberal Democratic Party (LDP) of Japan has been in power since 1955. The conservative right-wing party has consistently opposed same-sex marriage.
Whereas, in November 2022, the Tokyo District Court ruled that the current legal provisions restricting marriage to heterosexual couples do not violate the Japanese Constitution. It held: “What kind of legal system to adopt is left to the discretion of Diet?”
However, the court added that the absence of a legal system for non-heterosexual couples to form a family is a “serious obstacle” to their rights.
In May 2023, the Nagoya District Court held that the non-recognition of non-heterosexual marriages violates Articles 14 and 24 of the Japanese Constitution. It ruled: “Same-sex couples should not be allowed to publicly demonstrate their relationship as a part of the national system, and that they should not be deemed worthy of protection. It does not even provide a framework (sic).”
The recent and last hearing of the class action lawsuit at the Fukuoka District Court in June 2023 ruled that the prohibition of non-heterosexual marriages is constitutional.
Another set of lawsuits was filed in the Tokyo District Court in which the ruling came in September 2023. On September 28, eight same-sex couples sought damages from the Japanese government. They argue that the exclusion of non-heterosexual couples from the marriage system has perpetuated an image that they are “abnormal, inferior and unworthy of society’s approval”.
In one of the first judgments, a Sapporo District Court in 2021 held that the ban on non-heterosexual marriages violates Article 14 (right to equality) of the Japanese Constitution.
The ruling of the Tokyo District Court coincided with the ruling of the high court, both historic in their ways.
The district court ruled that the existing legal framework is not reasonably justified and violates fundamental rights to dignity and equality. It violates Article 24(2).
Conclusion
Japan’s case study offers a unique perspective of how despite society’s acceptance, the law has not been lived upto its needs.
