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Complaint
February 14, 2019

To: Tokyo District Court, Civil Division

Attorney for the Petitioners:

Takako Uesugi

Same as above

Makiko Terahara

Same as above

Keiji Kato

Same as above

Shigenori Nakagawa

Same as above

Shinya Maezono

Same as above

Kazuhisa Enomoto

Same as above

Yasuyuki Kida

Same as above

Miho Kumazawa

Same as above

Tatsuki Sato

Same as above

Hiroki Shimizu

Same as above

Tomoe Suzuki

Same as above

Yasushi Nagano

Same as above

Mayuko Nankawa

Same as above

Saki Hattori

Same as above

Yuji Harashima

Same as above

Eito Matsumiya

Same as above

Yoko Mizutani

Same as above

Mayuko Miyai

Same as above

Ai Mori

Same as above

Toshimasa Yamashita

Same as above

Yoshie Yokoyama

Associate Attorney for the Petitioners:

Nobuko Saito

Same as above

Nobuhito Sawasaki

Same as above

Tetsuya Miura

Attorney for the Petitioners (Sapporo):

Takeharu Kato

Same as above

Fumiko Suda

Same as above

Hiromi Minagawa
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・Sections about the plaintiff have been omitted from this modified version of the complaintSame as above
Attorney for the Petitioners (Osaka):

Fumiyasu Tsunamori
Taijiro Ohata

Same as above

Akiyoshi Miwa

Same as above

Akemi TeranoSame as above

Katsumi Yamagishi

Attorney for the Petitioners (Nagoya):

Satoshi Horie

Same as above

Akiko YazakiSame as above

Tomofumi Urano

Petitioners:

As listed in Exhibit,
List of Petitioners (12 Petitioners in total)

Attorneys for the Petitioners:

As listed in Exhibit,
List of Attorneys for the Petitioners

Associate -Attorneys for the Petitioners:

As listed in Exhibit,
List of Sub-Attorneys for the Petitioners

1-1-1 Kasumigaseki, Chiyoda-ku, Tokyo 100-8977
Respondent:

The State

Representative Minister of Justice:Takashi Yamashita"Marriage for All" Lawsuit
Value of claim:

JPY 12 million

Amount of stamp affixed:

JPY 56,000

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Contents
I.

Overview of this case ............................................................................................. 6

II.

Petitioners in this case ............................................................................................ 6( This is the modified version of the complaint for the Marriage for All website. Sections
about the plaintiff have been omitted, thus the page numbers will differ from the version
submitted to court. Thank you for your understanding.)
III.

Diversity in people's gender ................................................................................... 6

1.

Sexual orientation and gender identity .................................................................. 6(1)

Sexual orientation.................................................................................................. 7(2)

Gender identity ...................................................................................................... 7(3)

Sexual orientation and gender identity .................................................................. 82.

Sexual diversity and society .................................................................................. 9IV.

Japanese legal system ........................................................................................... 10

1.

Provisions of the Civil Code ............................................................................... 10

2.

Sexual minorities and marriage ........................................................................... 10

V.

Not recognizing marriage between legally same-sex couples violates the freedomof marriage 11
1.

Outline ................................................................................................................. 11

2.

Freedom of marriage is a constitutional right ..................................................... 12(1)

Freedom of Marriage and the right to individual autonomy (Article 13 of theConstitution) ....................................................................................................... 12(2)

Freedom of marriage is an essential attribute of modern marriage ..................... 16(3)

Background to the enactment of Article 24, Paragraph 1 of the Constitution .... 16(4)

Freedom of marriage under the Constitution of the United States ...................... 19(5)

Cases.................................................................................................................... 20

3.

Freedom of Marriage extends to same-sex couples ............................................ 21(1)

The basis on which the freedom of marriage has been raised to a constitutionalright is appropriate for same-sex couples. .......................................................... 21(2)

General perception of sexual orientation and gender identity and the "respect forindividuals". ........................................................................................................ 22

4.

Article 24, paragraph 1 of the Constitution does not prohibit same-sex marriage
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5.

Conclusion........................................................................................................... 31

VI

Not allowing same-sex marriage under the law violates the principle of equality
31

1.

Introduction ......................................................................................................... 31

2.

Discriminatory treatment based on sexual orientation ........................................ 32

3.

Infringed rights / interests ................................................................................... 32(1)

Violation of freedom of marriage........................................................................ 32(2)

No enjoyment of social recognition .................................................................... 33(3)

No specific rights / benefits associated with marriage ........................................ 33(4)

Summary ............................................................................................................. 39

4.

Matters that should be strictly reviewed ............................................................. 39(1)

It is disparate treatment based on matters enumerated in the latter clause [ofArticle 14(1) of the Constitution] ....................................................................... 40(2)

Disparate treatment based on sexual orientation is discrimination based onsomething one cannot change of their own volition ........................................... 41(3)

The infringed benefits and rights are substantial ................................................ 41(4)

It is a matter for which the democratic process cannot provide relief ................ 42(5)

Summary ............................................................................................................. 42

5.

The disparate treatment is not justifiable ............................................................ 42(1)

In light of the meaning and purpose of marriage, there is no reason to exclude
LGBT+ individuals ............................................................................................. 42(2)

There is no logical basis for not granting each infringed right and benefit ........ 43(3)

It harms the dignity of LGBT+ individuals ......................................................... 44(4)

It violates the purpose of the principle of marriage by notification .................... 46(5)

Summary ............................................................................................................. 47

6.

Conclusion........................................................................................................... 47

VII

Legislative inaction is unlawful under the State Redress Act .............................. 47

1.

Criteria for the unlawfulness of legislative inaction under the State Redress Act
47

2.

The unconstitutionality of the provisions is clear ............................................... 48(1)

The awareness that it is not acceptable to restrict a person's rights and interests or
to discriminate against a person for being LGBT has been established and has
permeated society................................................................................................ 48

4

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Worldwide, the trend is to make legislative changes allowing same sex couples
to marry. .............................................................................................................. 58

3.

(3)

Increased demand to recognize same-sex marriage in Japan .............................. 60(4)

Sub-conclusion .................................................................................................... 65
The National Diet has neglected to make legislative changes for an extensive

period of time without justification. ......................................................................................... 65
4.

Conclusion........................................................................................................... 65

VIII

Occurrence of damage .......................................................................................... 65

IX

Conclusion ............................................................................................................ 66

5

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Summary of Claim
The Petitioners seek the following judgments and a declaration of provisional execution:1.

the Respondent shall pay the respective Petitioners JPY 1 million as well as an
amount at the rate of 5% per annum from the service date of this Complaint up to
the completion of the payment; and2

court fees shall be borne by the Respondent.

Ground of Claim
I.

Overview of this caseThis case is filed by the Petitioners as a claim for damages against the Respondent pursuant to
Article 1, Paragraph 1 of the State Redress Act, for the psychological damage that each of thePetitioners suffered from having their right to marry impeded upon, due to the Respondent's
failure to enact legislation that provides for the marriage of legally same-sex couples.
Currently in Japan, the registration of marriage for legally same-sex couples are regarded as
unlawful. Such treatment unjustly infringes on the constitutional right to freedom of marriage(Article 24, Paragraph 1 of the Constitution) between two persons legally of the same sex, andunjustly discriminates against them on the basis of their sexual orientation, which is prohibitedby Article 14 of the Constitution,.
This complaint is filed to seek immediate revision of the laws that violate the Constitution, as
well as to resolve the difficulties and restore the dignity of all people who are in the same
situation as the Petitioners.

II.

Petitioners in this case(This is the modified version of the complaint for the Marriage for All website. Sections about
the plaintiff have been omitted)
III.

Diversity in people's gender1.

Sexual orientation and gender identity

There is diversity in people's sexual orientation and gender identity.

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・Sections about the plaintiff have been omitted from this modified version of the complaint(1) Sexual orientation
Some people are sexually attracted to the opposite sex, and some are attracted tothe same sex. Some are attracted to both, and some are attracted to neither. Among
people's sexualities, sexual attraction to either, both or neither sex is referred to as
sexual orientation.
Homosexuality means sexual attraction to the same sex, heterosexuality meanssexual attraction to the opposite sex, and bisexuality means possible sexual
attraction to both sexes. All of these are "types of sexual orientation that humanbeings have" (Petitioners' Evidence A1-1, 1-2 (translation), Resolution by theAmerican Psychological Association Council of Representatives; Petitioners'
Evidence A2-1, 2-2 (translation), American Psychiatric Association "Let's Talk
Facts About: Sexual Orientation"; Petitioners' Evidence A3-1, 3-2 (translation),
Obergefell Case Amici Opinion; and Petitioners' Evidence A4, Tokyo District Court,
30 March 1994 Judgment Hanrei Times Issue 859, p.163 "Part3, 1, 1" (p.169), thejudgment is hereinafter referred to as "Judgment in the First Instance of Fuchu
Youth House Case").
(2) Gender identity
A person's gender is also diverse with regards to how they identify their gender.
Specifically, a person can identify themselves as being of a specific gender (gender
identity), however, they will also have an "assigned sex", given at birth under law
and by society (based on biological traits).
In some cases, one's gender identity will match the assigned sex, and in other cases
it does not. When a person feels that their identity does not match the assigned sex
and wishes to live with the gender they identify with, the person is called
transgender. When one's gender identity matches the assigned sex, the person iscalled cisgender (Petitioner's Evidence A5, The World Professional Association forTransgender Health (WPATH), "Standards of Care for the Health of Transsexual,
Transgender, and Gender Nonconforming People", 7th edition (p.97)).
Gender identity as an aspect of people's sexuality is diverse as well, and transgenderand cisgender people must be respected, as both are natural identities of humanbeings (Petitioners' Evidence A5, p.4; Petitioners' Evidence A6, Hiroyuki
Taniguchi, "Gender Identity and Human Rights – Critical Analysis of Act on Special
Cases for Persons with Gender Identity Disorder," Law Seminar Issue 753, p.51
(2017) p.53).
In Japan, the "Act on Special Cases in Handling Gender Status for Persons with
Gender Identity Disorder (16 July 2003, Act No. 111)", enacted in 2003, made it
possible to legally change gender status; however, such change is only permitted if7【Please share the link to this complaint freely】【Please do not reproduce for profit nor distribute on websites including but not limited to personal webpages,
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strict conditions are met (such as removal of reproductive organs), and on 10
December 2013, the Supreme Court confirmed that the legitimacy presumption
under the Civil Code (Article 772 of the Civil Code) applies to those who changed
their gender status to male under the law (Supreme Court Judgment, 10 December
2013, Minshu Vo. 67-9, p.1847). Moreover, in the Supreme Court Judgment, 23
January 2019 (2018 (Ku) No. 269), Judges Kaoru Onimaru and Mamoru Miurastated, in their supporting opinion, that gender is "inseparably linked to individual
personal existence", and that being able to change gender status under the Act on
Special Cases is a "desperately important legal right", and referred to "Therecognition of diversity of gender identity is an important issue for society toconsider".
(3) Sexual orientation and gender identity
Sexual orientation and gender identity are different concepts and should be treatedas such when discussing a person's sexuality. For example, a person who isidentified as female based on biological traits may identify as female, male, orneither. Further, regardless of whether the gender identity is female or male, ineither case one may be sexually attracted to males or females.
For example, when a person who is regarded as being female biologically and has
a male gender identity (transgender man), the person may be sexually attracted toother males. The sexual orientation here is based on gender identity, thus the person
is considered homosexual. In regard to sexual orientation, a person sexuallyattracted to the same sex is homosexual, and a person sexually attracted to the
opposite sex is heterosexual, based on their gender identity. Be that as it may, thefact remains that all of these, including the above case, are natural sexualities ofpeople.
Both gender identity and sexual orientation are important factors of a person's
identity, and are individual traits deeply rooted in each personality. It is regarded
as difficult to change them by one's own will (Petitioners' Evidence A7-1 (p.148),
7-2 (translation) (p.13), Herek "Myths About Sexual Orientation" "C Myth 3";
Petitioners' Evidence A2-1, 2-2 (translation) (p.2), Let's Talk Facts: Sexual
Orientation; and Petitioners' Evidence A3-1, 3-2 (translation), Obergefell Case
Amici Opinion "Opinion Main Text II").
People who have sexualities or gender identities other than heterosexuality andcisgender account for a small percentage of the population, and have historically
been regarded as "abnormal and deviant" in society, and have been called "sexual
minorities".
They are often called "LGBT" as well, which takes the first letters of the words"lesbian", "gay", "bisexual" and "transgender".

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The words "homo" and "les" have insulting nuances in many cases, thus should not
be used.
2.

Sexual diversity and society

As described above, human sexuality is diverse, and homosexuality or bisexuality inrelation to being transgender and other gender identies are all natural expressions ofhuman sexuality. The idea that only heterosexuality and cisgender are "normal" isincorrect.
In other countries, there have been attempts to estimate the proportion of people withvarious types of sexuality on a national basis. In the United States, multiple surveys havefound that an estimated 3.5% of adults identify as lesbian, gay, or bisexual and an
estimated 0.3% of adults are transgender (Petitioners' Evidence A8-1, 8-2, Gates 2011
Executive Summary). Canada, Norway, Australia and the United Kingdom have also
reported that there are an estimated 1% to 2% of adults who identify as lesbian, gay, or
bisexual (same as above, Figure 1).
In Japan, there has never been a similar survey of the whole adult population. However,for example, in 2018, the City of Nagoya conducted a "Public Attitude Survey" on 10,000
citizens aged 18 and older who were randomly selected from the Basic Register ofResidents, and it was reported that 1.6% of the respondents identify themselves as sexual
minorities (Petitioners' Evidence A9, Gender Equality Promotion Office, General
Coordination Division, General Affairs Bureau, City of Nagoya, "Public Attitude Survey
in relation to Gender such as Sexual Minorities" p.55). Similarly in a 2017 survey on
second year students attending public high schools in Mie Prefecture, it was reported that
10% of the respondents had answered that they are homosexual, bisexual or transgender,or that their own gender is "undecided" "unknown" or "not applicable" (Petitioners'
Evidence A10, Mie Prefectural Gender Equality Center "Questionnaire Survey on
Various Sexualities and Lifestyles" p.17 "Parties in Interest").
As is the case with the Petitioners, such sexual minorities have been, and are currently
living as family, schoolmates or neighbors in our community and as members of oursociety.
However, "in the past, the majority of psychological research on homosexuality was
based on the hypothesis that homosexuality is a disease, and such researches were aimed
at identifying the cause" and "in such circumstances, in the past, homosexual individuals
were prone to becoming isolated and distressed by their sexual orientation" (Petitioners'
Evidence A4, Judgment in the First Instance of Fuchu Youth House Case (1994) p.170,
upper paragraph 3). It was considered that being heterosexual and cisgender was the only
proper expression of sexuality. There has been a long history of social prejudice anddiscrimination against homosexual individuals, and such mindsets and perceptions
remain deeply rooted in present-day Japan (Petitioners' Evidence A9, "Public Attitude9【Please share the link to this complaint freely】【Please do not reproduce for profit nor distribute on websites including but not limited to personal webpages,
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Survey in relation to Gender such as Sexual Minorities" p.26; Petitioners' Evidence A1041, Saori Kamano et al. 2016 "Attitudes toward sexual minorities in Japan: report of 2015
national survey" Chapter 7 "Prejudice against familiar people" p.14, p.123).
Furthermore, the laws and systems of society are created on the basis of such mindsets,
and the existence of those other than heterosexual and cisgender individuals are notrecognized in those laws, systems and practices of our society, and remain ignored. The
issue in this case, where marriages between legally same-sex couples are not recognizedin Japan, is a typical example.
While the "marriage" of opposite-sex couples is automatically recognized the marriageof legally same-sex couples are not recognized merely because the partners are of thesame sex, and the fact that such couples cannot receive various benefits that can be gained
from legally recognized marriage (as discussed below) is a serious violation of humanrights. To be recognized as entering marriage with one's desired partner and to be
accepted as a family are earnest desires that have been much awaited, and these are
inevitable problems that must be overcome to regain the dignity of such people and torealize a fair society where all of the people are truly "respected as individuals (Article
13 of the Constitution)".

IV.

Japanese legal system
1.

Provisions of the Civil Code

Article 739, Paragraph 1 of the Civil Code provides that "[m]arriage shall take effectupon notification pursuant to the Family Registration Act (Act No. 224 of 1947)" andArticle 731 through Article 737 of the Civil Code list the causes on which marriage is
prohibited, but there is no express provision that requires partners to legally be personsof the opposite sex.
However, in general, the words "husband and wife" in the Civil Code or the Family
Register Act are said to mean a male husband and a female wife and are interpreted asmeaning that one cannot enter into a marriage with a person of legally the same sex. The
government holds a same view (Petitioners' Evidence A11, Written Inquiry at the 196th
session of the Diet; Petitioners' Evidence A12, Written Answer at the 196th session of theDiet "Regarding 4 through 6"). As a result, if a same-sex couple attempts to submit amarriage registration, it will be denied as being unlawful (Petitioners' Evidence A13,
Koshi Yamazaki "Current Issues in relation to the Administration of Family Registration"
Journal of the Family Registration (Koseki Jiho) No. 739, p.42).
2.

Sexual minorities and marriage

As a result of the above clause, homosexual individuals who are cisgender (where theperson's gender identity is the same as their assigned sex) are, in fact, robbed of the ability
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to enter into a marriage with their desired partners. Bisexual individuals who arecisgender may face the same problem as well (hereinafter, homosexual individuals andbisexual individuals are collectively referred to as "Homosexual Individuals, etc.").
Further, transgender individuals who have not altered their legal genders and who areheterosexual or bisexual are, likewise, not able to marry their partner if their desiredpartner is a person of the opposite sex based on his or her gender identity (a person oflegally the same sex). Transgender individuals who are homosexual or bisexual cannot
marry a legally same-sex person if their legal gender is the same as their gender identity.
In this case, since there are no transgender individuals among the Petitioners, the Petition
and written allegation will be argued on the premise of cisgender individuals unless statedotherwise. However, as described above, since the Civil Code and the Family Register
Act do not approve marriage between legally same-sex couples, transgender individuals
may be denied the ability to marry their desired partner based on their sexualities, thereby
being shut out of the marriage system.

V.

Not recognizing marriage between legally same-sex couples violates the freedom ofmarriage1.

OutlinePeople's ability to autonomously enter into a civil marriage based only on mutual consent
with their desired partner is the core element of marriage in our modern society, and it is
an important human right guaranteed in Article 24, Paragraph 1 of the Constitution.
Further, there is no reason that this would differ whether the partner is legally a person of
the opposite sex or the same sex.
The provisions of the existing Civil Code and Family Register Act which do not approvemarriage between legally same-sex couples unjustifiably infringe the freedom of marriage
which is a constitutional human right, and, to that extent, is unconstitutional and invalid.
In the following section, the Petitioners will argue, as a matter of constitutional
interpretation, that the freedom of marriage is a constitutional human right (paragraph 2),that there is no reason for this to differ whether between same-sex couples or oppositesex couples, and that this should not be restricted based on an individual's sexual
orientation or gender identity (paragraph 3). In addition, since there have been publicsuggestions that "Article 24 of the Constitution prohibits marriages between legally samesex couples," the Petitioners will also explain the inaccuracy of such statements(paragraph 4).

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2.

Freedom of marriage is a constitutional right

Article 24, Paragraph 1 of the Constitution stipulates that "[m]arriage 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."Assuming the existence of a system where the laws stipulate requirements in order toprotect, approve and validate any permanent communal life based on intimate
interpersonal relationships (i.e. civil marriage), this provision guarantees the ability of anindividual to have a civil marriage with their desired partner based only on mutual consent,
without interference from any nation or third party, as a constitutional human right(hereinafter referred to as "Freedom of Marriage").
The following section argues that Article 24, Paragraph 1 of the Constitution guarantees
the Freedom of Marriage as a constitutional right on the grounds of (i) the right to
Individual autonomy (Article 13 of the Constitution), (ii) the intrinsic attribute of modern
marriage, and (iii) the enactment background of Article 24, Paragraph 1 of theConstitution.
(1)

Freedom of Marriage and the right to individual autonomy (Article 13 of
the Constitution)i.

The Constitution and the right to individual autonomy

Individual dignity is the fundamental principle at the heart of the Constitution.
The first part of Article 13 of the Constitution declares "[a]ll of the people
shall be respected as individuals." In order to realize this, the Constitution
acknowledges "[t]heir right to life, liberty, and the pursuit of happiness"(second part of Article 13) and further lists and guarantees various other rights
separate from the right to the pursuit of happiness. A constitutional right isestablished when a legal interest is developed alongside the above
fundamental principle of the Constitution (Petitioners' Evidence A14,
Kazuyuki Takahashi "What All Citizens Being 'Respected as Individual'
Means" in Mitsuro Kobayakawa et al. (eds.) "Development and Change of
Administrative Laws (First Volume)" (Yuhikaku, 2001) p.288).
One of these constitutional rights is the right to individual autonomy.
The right to individual autonomy is the right of an individual to determine
matters closely related to their personality on their own without theintervention or interference of any public authority (Petitioners' Evidence
A15, Nobuyoshi Ashibe and Kazuyuki Takahashi (revised) "Constitution(Sixth Edition)" (Iwanami Shoten, 2015) p.126). The right to individualautonomy is not explicitly listed in the Constitution. However, it wasrecognized as essential to ensure that "[a]ll people shall be respected as
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individuals" as society developed following the formulation of theConstitution, and this has been upgraded to a constitutional right with theassistance of the right to the pursuit of happiness (Article 13) (Petitioners'
Evidence A14, p.289).
In other words, given that individuals have diverse characteristics and values
and are different from one another, in order for all people to "be respected as
individuals", every person must be allowed to freely select their own way ofliving and fulfill their own life. Therefore, the Constitution is understood toguarantee the constitutional right for individuals to self-determine matterswhich "substantially affect how they live their life" without intervention orinterference from any public authority.
ii.

Meaning of Freedom of Marriage

The situations in which the right to individual autonomy is relevant include
actions concerning one's life and body, formation and maintenance of a family
and reproduction, etc. Within this, the issue of freedom of marriage
constitutes an important aspect. This is because, as elaborated below, being
able to decide by oneself whether, when and with whom to have a civil
marriage (which is an institution with an important function) is essential inorder to realize the fundamental principle of the Constitution (i.e. respect forindividuals) and the constitutional right to individual autonomy.
(i)What is civil marriage?

People live by meeting and establishing various relationships with otherpeople in the course of their lives. In doing so, they may intend to havea permanent communal life based on an intimate relationship which
may involve sexual love. A relationship built in this way contributes tothe fullness of the individual's life through sharing pleasure, joy andsadness, maintaining energy, and securing peace, and can provide
meaning to the individuals' existence and pursuit of life and happiness.
Historically, every society created a system to admit and validate theformation of a family under certain rules, known as "marriage". In
modern society, the nation, through its laws, plays a role in stipulating
the requirements for, and giving effect to, marriage. Accordingly, thesystem through which permanent communal life between individuals is
admitted and validated in accordance with the requirements of law iscivil marriage.
The Constitution also assumes the presence of civil marriage (Article
24, Paragraphs 1 and 2 of the Constitution). The Civil Code collectively
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characteristics of marriage, defined as "communal life based on intimate
relationships," such as (i) the obligation of mutual cooperation between
the parties (see Article 760 of the Civil Code and Article 24, Paragraph
1 of the Constitution), (ii) the system for achieving fair and equal
property rights (Inheritance (Part V, Article 882 et seq. of the Civil
Code), and (iii) the distribution of property (Article 768 of the Civil
Code), etc.). Within a marriage, the parties' relationship is enhanced bythese interests and obligations. Furthermore, civil marriage plays anintangible but important role in legally and socially approving andvalidating the relationship of the parties as a family, thereby further
enhancing the relationship. This is what is called the "psychologicaland social interests" of marriage (Petitioners' Evidence A16, Michio
Aoyama and Toru Arichi (eds.) "New Edition: Annotated Civil Code(21) [Revived]" [Masakazu Ueno] (Yuhikaku, 1989) p.179).
As shown above, civil marriage is an important system that can play amajor role in the lives of individuals who intend to live together basedon an intimate relationship.
(ii)

Freedom of Marriage is essential for an individual's selffulfillment

As described above, civil marriage is a system that deeply impacts an
individual's life and way of living. Furthermore, each individual holds
various different values and characteristics. Therefore, civil marriage
can only work if each individual can decide independently whether,when and with whom to marry, without interference from anyone else.
Only with such freedom of marriage is it possible for individuals to
pursue life and happiness in a manner appropriate to that individual. It
is essential for an individual's self-fulfillment to have the option of acivil marriage when and with whom they desire, and freedom ofmarriage coincides with the basic principle of the Constitution that all
persons must be respected as individuals (Article 13 of the Constitution).
(iii) Freedom of marriage as an important basis for democracy
Individuals recognize and feel that they are members of society andhave the power to fulfil their responsibility to society when they areallowed to make choices based on their own values and characteristics
and feel approved as part of a family or marriage. This leads to suchindividuals participating in politics and becoming motivated tocontribute to society. The existence of individuals who are essentiallydiverse, establishing families with their desired partners in thecircumstances they desire, autonomously pursuing happiness based on14【Please share the link to this complaint freely】【Please do not reproduce for profit nor distribute on websites including but not limited to personal webpages,
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their own values, characteristics and experience as a family, undergoinghard times and sharing good fortunes, overcoming failures andrepeating successes, and holding onto their values and respect, lays thegroundwork for the plurality of society which is essential for the
democratic society advocated by the Constitution.
Freedom of marriage forms the basis of a democratic society andenables self-fulfillment and contributions to democratic politics. This
leads to all people being respected as individuals.
Prof. Ashibe's statement that "[o]nly through guaranteeing the rights ofindividuals to autonomously decide the shape of their families, does it
become possible to ensure the plurality of society, which is the basis of
democracy", reflects the above point (Petitioners' Evidence A17,
Nobuyoshi Ashibe "Constitutional Law II: General Theory of Human
Rights" (Yuhikaku, 1994) p.393).
Furthermore, with regard to the importance of the protection of privacy,Prof. Hasebe states that the "[p]rotection of privacy does not only
benefit individuals but also the whole of society. Anyone whose rightto establish an intimate relationship with their desired partner is notprotected, will not feel that they are respected as a person living
autonomously nor will they have the motivation to seriously consider
and contribute to social and public issues." This statement brings tolight the significance of the freedom of marriage as part of the right toindividual autonomy (Petitioners' Evidence A18, Yasuo Hasebe"Constitution (Seventh Edition)" (Shinseisha, 2018) p.150).
(iv) Freedom of marriage as the infrastructure of a pluralistic society
If individuals who intend to have a communal life are validated andprotected under a common system, this makes it possible for theirfamily to smoothly communicate with and receive services from thecommunity, schools, healthcare, welfare and other government systems.
Also in connection with the people surrounding the individuals, througha common system, they can understand the structure of a particular
relationship and become involved with the individuals in a predictable
way without infringing on their privacy.
Ensuring that the system for forming a family only requires a couple tohave mutual consent (regardless their characteristics and values) isessential for a pluralistic and fair society where all people are "respected
as an individual." Also, in line with this, civil marriage plays animportant role beyond benefitting the marrying parties.

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Conclusion

As elaborated above, allowing individuals to have a civil marriage with their
desired partners based only on their mutual consent means that diverse
individuals can decide on important matters in their lives on their own. The
freedom of marriage should be guaranteed as a constitutional right as it is an
important part of the right to individual autonomy.
(2)

Freedom of marriage is an essential attribute of modern marriage

Furthermore, the freedom of marriage is an essential attribute of marriage in modern
society.
In pre-modern Japanese society, marriage was governed by feudal constraints suchas the "class system," the "feudalistic family system," and the "patriarchal familysystem" which made it exceedingly difficult for people to marry freely. In contrast,
in modern civil society, social relationships have been freed from communal
restraints, and all people have been given equal rights as abstract and conceptual
legal personalities, thus marriage has become a contractual relationship between
free individuals. This "constitutes the principle of modern civil law, together withthe unconditional nature of private ownership." "Modern Civil Law establishes
marriage as a mutual consent between two willing individuals with equal rights,
that is to say, a contract". "Such modern marriage meant a departure from thedominant relationship of the patriarchal family-oriented community of pre-modern
societies, and the understanding of marriage as a contract symbolizes marriage inmodern societies". (Petitioners' Evidence No. A-16, Michio Aoyama and Toru
Arichi, ed., "New Edition of Annotated Civil Code (21) (Reprinted edition)",[Michio Aoyama / Toru Arichi], (Yuhikaku, 1989), p. 152; Sakae Wagatsuma,"Collected Studies in Law, Family Law" (Yuhikaku, 1961), p. 9).
Civil marriage, by which individuals may marry whom they desire solely of their
free will upon mutual consent, is the form of marriage that was acquired as auniversal principle in modern society in which people were freed from the classsystem and communal restraints. Any form of marriage lacking this principle
arguably does not meet the definition of "marriage" in the modern sense. The
characteristics of marriage in modern society, namely that it marriage is based on
the mutual consent of individuals with equals rights exercising their free will, areestablished as a constitutionally guaranteed right in constitutions enacted in many
countries in the recent past and in modern times. The Constitution of Japan is no
exception.
(3)

Background to the enactment of Article 24, Paragraph 1 of theConstitution

We discussed above that the freedom of marriage is an essential attribute of modern
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marriage and constitutes the right to individual autonomy, which is indispensable
to the right of respect for individuals. Furthermore, examining the historical context
of the reason for Article 24, Paragraph 1's inclusion in the Constitution will lead toa better understanding of why "freedom of marriage" is a constitutional right.
i.

Purpose of the enactment of Article 24, Paragraph 1 of theConstitution

Article 24, Paragraph 1 of the Constitution states that, "marriage shall bebased 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 abasis."
Why is this clause placed at the beginning of Article 24 of the Constitution,
which sets forth matters pertaining to marriage (civil marriage)?
In order to ensure respect for individuals and equality between men andwomen (the principles of the Constitution), it was absolutely necessary tochange the form of marriage of the Old Civil Code (promulgated in 1898) inwhich the "family" was considered superior to individuals and to securerespect for individuals and equality between both sexes in family life. That
is to say, under the Old Civil Code, the backbone of the feudalistic familysystem marriage was regarded as a matter between two families and the wife
was deemed to enter the husband's family by marriage (Article 788 of the Old
Civil Code, "the wife shall enter the husband's family by marriage"). The
consent of both "heads of the household" was required for marriage (Article
750 of the Old Civil Code), and the consent of "the father and mother of thefamily" was required until the age of 30 for males and 25 for females (Article
772 of the Old Civil Code). Due to the principle that the continuation of thefamily was the top priority, an individual who was the legally presumed heir
to the household was not allowed to marry into another family (Article 744of the Old Civil Code).
Such laws greatly affected people's thinking. People thought that marriage
was something for the family, rather than for the individual's pursuit ofhappiness, and even if they wished to marry someone, they were often
opposed by their family members on the grounds that the person whom theywant to marry would not match social standing of the family, and even after
a couple started living together, it was common practice for the "head of thefamily" or the couple's parents not to give consent to the marriage until they
were certain that the woman would fit their "family ways" or that the woman
could bear an heir. As a result, women, who were legally and economicallydisadvantaged compared to men, often found themselves in forced marriages.

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In addition, this type of pre-war notion of placing the family's priorities aheadof the individual's created a perception or atmosphere that accepted thesacrifice of individuals for the good of society, which deprived society of thediversity of values and the possibility of free thinking that ultimately resulted
in "the horrors of war through the action of government" (preamble to theConstitution). This is the reason why Professor Ashibe stated in (V-2 (1) B.
(c)) above that, "diversity in society, which is the basis of democracy, can only
be secured by guaranteeing the right of individuals to autonomously
determine the ideal form of their families" (Petitioners' Evidence No. A-17,
Ashibe, Nobuyoshi, "Kenpogaku II Jinkensouron [Constitutional Law II
Human Right: General Part]" Yuhikaku, 1994, p. 393).
Article 24 of the Constitution "declares that people may decide whom theywish to marry by themselves, and it demands legal adjustment of the conceptof family life based on an individualistic view of the family with theenhancement of the individual as the goal" (Petitioners' Evidence No. A-19,"[Annotated Constitution of Japan Vol. 1]" Journal of Jurisprudence
Association, Yuhikaku, 1953, p. 470), and also declares that "the provisionsof the Old Civil Code that were incompatible with Article 24 of theConstitution have been amended or abolished, and the freedom of marriage
has greatly increased" (Petitioners' Evidence No. A-16, p.180).
ii.

The Constitution called for the freedom of marriage to be at theheart of the new marriage system

To begin with, a marriage presupposes a close relationship between theparties. Therefore, marriage with someone other than the person whom one
wishes to marry is incompatible with the nature of marriage. However, thatis not all. Learning from the bitter experience in pre-war Japan that the factthat the freedom of marriage was not guaranteed resulted in the obstructionof the pursuit of happiness of many people and led to a dysfunctional
democracy, the Japanese people came to believe that the freedom ofindividuals to decide "to marry or not to marry" and "whom and when to
marry" at their own will and decision without interference from anyone, isessential to the fundamental value of the Constitution that "all of the people
shall be respected as individuals."
For this reason, the Constitution not only prohibits the head of the family or
any other party to interfere with marriage, but also provides a generalprovision that "Marriage shall be based only on the mutual consent of both
sexes." The Constitution makes clear that civil marriage adopted the universal
concept that modern marriage is formed only by the "mutual consent of two
willing individuals with equal rights, which is a vitally important andessential attribute that must be maintained throughout the marriage system."18

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Summary

With respect to civil marriage, Article 24, Paragraph 1 of the Constitution
guarantees, as a constitutional human right, that an individual may marrywhom they desire upon mutual consent, without interference from the state or
any third party (the freedom of marriage).
(4)

Freedom of marriage under the Constitution of the United States

Japan is not unique.
In the United States, there has often been excessive interference with family life
under common law and state law, and since the 1960s, a series of lawsuits havebeen filed asserting their unconstitutionality. In this context, the US Supreme Court
pronounced a series of judgments that respected the autonomy of the individuals
emphasizing that the freedom of marriage is a fundamental right under the U.S.
Constitution (Petitioners' Evidence No. A-20, Tanamura, Masayuki, "Gendai
amerika kazoku ho [Contemporary Family Law in the U.S.]"; Kawai, Susumu et al.,ed., "Koza gendai kazoku ho [Contemporary Family Law]" Nippon Hyoron-sha,
1992, p.141).
In Griswold v. Connecticut, (1965), the constitutionality of a law in Connecticutthat prohibited any person, including married couples, from using contraceptives,
was questioned. The court admitted the constitutional right to privacy byemphasizing the existence and importance of an area free from federal and state
intrusion, and established that the right to privacy between married couples as wellas the right to marry and create a family were in the same category as thefundamental rights that are explicitly guaranteed under the constitution, and that
individuals should be protected from governmental intrusion.
In Loving v. Virginia, the constitutionality of a Virginian law that prohibited andpunished interracial marriage was questioned. The Supreme Court ruled in 1967,
that,"The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men. Marriage is one of the'basic civil rights of man,' fundamental to our very existence and survival."
It held that the relevant law in Virginia violated the Equal Protection Clause andthe Due Process Clause of the Fourteenth Amendment to the U.S. Constitution(Petitioners' Evidence No. A-21, Fujikura, Kouichiro, "America saiko-sai no hanrei
ni mirareru 'kazoku kan' [Perception of Families: As Seen Through Supreme Court
Decisions]" Doshisha Hogaku Vol.32 No. 3/4 111(505), II, 1).
The above demonstrates that in the United States, freedom of marriage was also19

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・Sections about the plaintiff have been omitted from this modified version of the complaintoften violated by public authorities and society, but ultimately the "freedom ofmarriage" was recognized as a constitutionally protected right so that people may
marry according to their free will. This process shares the underlying disregard forhuman rights similar to the history of Japan, in which women in particular, weredeprived of the freedom of marriage under the Meiji Civil Code, which caused
much unhappiness, and the subsequent drafting of Article 24 of the Constitution by
the GHQ, Beate Sirota Gordon, and others, which was welcomed by the Japanese
government, the Diet, and the people
(5)

Cases

In Japan under the new Constitution, in the so-called "forced retirement upon
marriage" case, the court held that "freedom of marriage is one of the fundamental
human rights guaranteed to the people by the Constitution" (Petitioners' Evidence
No. A-22, Judgment of the forced retirement upon marriage case Mobara City
Office, p. 111 (Judgment of Chiba District Court, May 20, 1968, Hanrei Times 221,
p. 109)).
In another similar case, the court ruled that "Article 24 of the Constitution provides
that 'marriage shall be based solely on the mutual consent of both sexes,' and thestate should be prohibited from enacting legislation that restrains the freedom ofmarriage of the people, and it is tasked to reduce interference in matters of thefreedom of marriage," and that "marriage, being a lasting bond between a man anda woman, is important enough to affect the lives of individuals, and the sublime
choice of when and whom to marry is derived from the inherent dignity of the humanperson. In light of this fact, restraining freedom of marriage in a grossly
unreasonable manner denies human dignity; therefore, on the basis of theguarantee of freedom of marriage, any restraint under private statutes shall bedenied for going against public order" (Petitioners' Evidence No. A-23, Judgmentof the Osaka District Court, December 10, 1971, Ta-271, page 147 (Judgment in
Mitsui Engineering and Shipbuilding forced retirement upon marriage case) page155).
The Supreme Court also ruled on the constitutionality of the 'Period of Prohibition
of Remarriage' (Supreme Court Grand Bench, December 2, 2015, 69(8) Supreme
Courts Reports (civil cases) page 2427) that "Article 24, Paragraph 1 of theConstitution provides that 'marriage shall be based solely on the mutual consent ofboth sexes and it shall be maintained through mutual cooperation founded upon theequal rights of husband and wife,' which should be interpreted as a clear statementthat the decision on whether to marry, when to marry, and whom to marry shouldbe left to the parties, having free and equal will," and that such decision is "worthyof sufficient respect." Although this judgment does not clearly state whether or not
the "freedom of marriage" is a constitutional right, as is stated earlier, it isappropriate for the freedom of marriage to be regarded as a constitutional right, and20【Please share the link to this complaint freely】【Please do not reproduce for profit nor distribute on websites including but not limited to personal webpages,
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it should be construed that the term "worthy of sufficient respect" is tantamount tostating that it is a constitutional right.
3.

Freedom of Marriage extends to same-sex couples

Does the freedom of marriage, as a matter of law, extend to marriage with a person of thesame sex?
Hereinafter, we argue that the freedom of marriage guaranteed under Article 24,
Paragraph 1 of the Constitution also extends to same-sex couples under the law, which iswhat the Petitioners are seeking.
(1)

The basis on which the freedom of marriage has been raised to a
constitutional right is appropriate for same-sex couples.

First, freedom of marriage was regarded as a constitutional right, as mentioned
earlier, because it is essential to "respect for individuals," which is a fundamental
value of the Constitution (Article 13). In other words, (i) the guarantee of thefreedom of marriage is indispensable for the self-realization of individuals, (ii) it isof particular importance as the basis of democracy, and (iii) it is important as thebasis of an equitable society where the marriage system is open to all people
regardless of their personality or values.
As described below, points (i) to (iii) above are equally valid with respect tomarriage with a person of legally the same sex.
For those individuals who met their partners and live together in a relationshipbased on love and trust, or those individuals who are thinking about doing so, the"legal and economic benefits" of marriage, such as the mutual obligation ofcooperation and inheritance and the "psychosocial benefits" of being recognizedand publicly certified, as a family, are crucial issues and they have important
implications to individual self-realization and the pursuit of happiness. If same-sex
marriage is recognized, the bonds between a man and a man / a woman and a woman
will be validated with legal support. That is why it is important to be able to decideautonomously whether or not to marry, when to marry, and whom to marry, without
interference from the state or any other party. This does not change, as long as one
is human, because of the attributes of the person, such as race or skin color, sexual
orientation, gender identity, or whether the assigned sex of a person matches thegender identity of the person.
The same is true for the fact that the freedom of marriage contributes to ensuring adiverse society, which forms the foundation of a democratic government, and has
important implications with respect to the principle that all people shall be respected
as individuals (Article 13 of the Constitution). Heterosexual couples marry for avariety of reasons, purposes and motives. While the meaning, roles and priorities
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・Sections about the plaintiff have been omitted from this modified version of the complaintof marriage may change with time and age, married couples live their lives in themanner suited to them and continue their family history. The Petitioners in thiscase clearly demonstrate that legally same-sex couples also have different values
and personalities and desire to marry for a variety of reasons, purposes, and motives.
For legally same-sex couples, the meaning, roles and priorities of marriage will alsochange over time and they will have families in the manner suited to them. For
each family to have a variety of important keepsakes originating from their lives
that each family must protect is the very foundation of a diverse democratic society.
This does not change in any way due to the sexual orientation or gender identity of
the couple seeking marriage or whether the sex of each person therein under the law
is the same or different.
Furthermore, making the system of marriage, which has played a vital role in the
lives of many people and is extremely familiar to many people, is available to every
couple, regardless of the personality or values held by each individual concerned,
so long as there is mutual consent and is part of the essential "infrastructure" of adiverse and equitable society. The freedom of marriage, regardless of sexual
orientation or gender recognition and open to all, will have a symbolic meaning forrealizing an equitable society.
Likewise, with respect to the Petitioners in this case who wish to marry theirpartners of the same sex under the law, the freedom to marry the person one wishes
to marry, and to freely decide whether or not to marry, when to marry and whom tomarry, should be guaranteed as an area without interference from anyone. This isfundamentally important for each individual's ability to live his / her life and is
indispensable in order to be able to say that all of the people are "respected as
individuals".
Inevitably the freedom of marriage became a constitutional right and this is no lessappropriate for legally same-sex couples. It must be a constitutional right, even forlegally same-sex couples, to be able to marry whom they desire based solely upon
mutual consent of the parties.
(2)

General perception of sexual orientation and gender identity and the"respect for individuals".

As discussed in (1) above, freedom of marriage should be construed to extend to
marriage to a person of the same sex under the law. Here we demonstrate thefundamental change that occurred in social perceptions of sexual orientation andgender identity, and argue that such change renewed the meaning of "respect forindividuals," which is a fundamental value of the Constitution.
i.

Change in perceptions of sexual orientation and gender identity

This section will discuss matters from the Petitioners' Evidence A-24,
22

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Kazama, Takashi and Kawaguchi, Kazuya "Doseiai to iseiai [Same-sex
sexuality and heterosexuality]" (Iwanami-shoten, 2010) pages 77-109.
(a) The diversity of human sexuality is evident from a variety of documents,
records, and art works throughout history and across the world. In theChristian world in the Middle Ages, among others, sexual intercourse
between parties of the same sex was viewed as a religious sin, and evenin the modern era, sexual intercourse between parties of the same sex was
punishable by law in the United Kingdom, the United States, Germany
and other countries.
During the latter half of the 19th century, the assertion of homosexuality
as a mental illness emerged. Although such assertions were made with
the intention of opposing penalties for sexual intercourse between partiesof the same sex, in actuality, it helped create the perception among the
public that "homosexuality was a mental illness that deviated from thenormal way of life and should be treated by discovering the cause".
Although having an illness per se should not be regarded as a reason to
restrict the human rights of individuals, in societies at the time that lacked
the awareness of human rights, the opinion of specialists justified theexclusion of homosexuals from the enjoyment of their natural rights as
people and denied their dignity as individuals. The assertion thatassociated homosexuality with psychopathology provided "justification"and strengthened discrimination and prejudices within society.
Later, in Nazi Germany, homosexuals were included in the people to beeliminated and tens of thousands were sent to concentration camps
because they were homosexuals. In the 1950s, in the United States, theHouse Committee on Un-American Activities identified as many as 40
to 60 government employees every month as homosexuals andterminated their employment (Petitioners' Evidence No. A-24, page 81).
In modern Japan, except for a few years in the early part of the Meiji
period, no law existed to punish sexual behavior between people of thesame sex. However, through "sexology," which became popular during
the Taisho period, homosexuality was introduced as a "sexual
perversion" and the perception that "heterosexuality is normal andhomosexuality is pathological" spread widely and penetrated society.
This view continued even after the end of World War II which wasaround the time that the new Constitution was enacted. Even when the"Fuchu Youth Hostel" court case took place in 1991, nearly half a century
later, the entries in Japanese dictionaries, such as Kojien (Petitioners'
Evidence No. 1-25-1, Kojien third edition, under "same-sex"; Petitioners'
Evidence No. 1-25-2, Kojien fourth edition, under "same-sex"), and the23【Please share the link to this complaint freely】【Please do not reproduce for profit nor distribute on websites including but not limited to personal webpages,
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terminology dictionaries for the general public, such as Imidas, and most
textbooks for psychiatry / psychology, treated homosexuality as a mental
disorder and the Ministry of Education, Culture, Sports, Science andTechnology published guidance materials on sexual delinquency anddeviation indicating that homosexuality "is not endorsed incontemporary society" (Petitioners' Evidence No. A-26, "Basic Material
on Problematic Behavior of Students," page 62).
(b) However, as discussed below, it became evident that, through empiricalresearch conducted from the middle of the twentieth century, the above
medical perspectives, which promoted discrimination and prejudiceagainst homosexuals, were not based on evidence and had radicallyaltered psychiatrists' and psychologists' views of homosexuality(Petitioners' Evidence No. A-7-1 Herek, "Myths about Sexual
Orientation," page 138 IIIA; Petitioners' Evidence No. A7-2 (translation),from page 6).
Namely, Kinsey and others published studies in respect of sexual
behavior among Americans in 1948 and 1953 and reported that many
more Americans than previously suspected had engaged in homosexual
behavior. Furthermore, Ford and Beach reported in their 1951 book thatsimilar behavior could be confirmed in other human societies and animal
species. In addition, an unpublished study conducted by the UnitedStates military during World War II demonstrated that the stereotype that"homosexual recruits could not be good soldiers" was not based onevidence.
Previous studies that supported homosexuality being equated withpsychopathology were largely based on analysts' clinical observations ofpatients known by the analysts to be homosexual. They were patients or
incarcerated individuals and were few in number. As a result, the study
samples were not representative. The analysts' personal views were also
likely to bias the clinical observations of patients known by the analysts
to be homosexual. Whereas, Hooker recruited thirty homosexual persons
and thirty heterosexual persons from the general community and matched
the two groups for conditions other than sexual orientation, conducted
the Rorschach and other tests, and concluded in the 1957 paper that"homosexuality as a clinical entity does not exist" (Petitioners' Evidence
No. A-7-2 (translation), page 19 of the Herek translation). Subsequently,
a large amount of empirical research was accumulated and it became
evident that there was no empirical evidence that homosexuality is an
illness.
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among mental health professionals as the homosexual community
escalated its human rights movement in the 1960s. Finally, the American
Psychiatric Association (APA), in 1973, decided that "homosexuality"
per se should not be treated as a mental disorder. In the second editionof the Diagnostic and Statistical Manual (DSM-II), which was publishedby the APA in 1968, "homosexuality" was considered to be a form of"sexual deviation." However, as a result of the above decision, thewording was eliminated from the 7th print of the DSM-II. The diagnostic
name for the persistent desire to change one's sexual orientation remained
for those who were seriously troubled by their sexual orientation andwished to change it; however, this was done based on the assumption thathomosexuality was not a mental disorder. In the revised DSM-III (DSMIII-R), in 1986, even that was eliminated (Petitioners' Evidence Nos. A27-1, A-27-2 (translation), DSM-III, page 380; Petitioners' Evidence Nos.
A-28-1, A-28-2 (translation), DSM-III-R).
The International
Classification of Diseases (ICD) by the World Health Organization alsoclassified "homosexuality" as an independent diagnostic name in ICD-9
but deleted it in ICD-10 (1992); clearly stating that "sexual orientation
per se is not a disease" (Petitioners' Evidence No. A-29, ICD-9;
Petitioners' Evidence Nos. A-30-1, A-30-2 (translation), ICD-10).
Also, in January 1975, the American Psychological Association Councilof Representatives adopted a resolution stating that, "homosexuality per
se implies no impairment in judgment, stability, reliability, or generalsocial and vocational capabilities" and settled the dispute. This
resolution further stated that "the American Psychological Associationurges all mental health professionals to take the lead in removing thestigma (note by the Petitioners' attorneys: A strong feeling of disapproval
imposed by society or a mark of disgrace) of mental illness that has long
been associated with homosexual orientation" (Petitioners' Evidence Nos.
A-1-1, A-1-2, Resolution adopted by the American Psychological
Association Council of Representatives (APACR)). Psychiatrists' andpsychologists' historical view that homosexuality was a disorder hadpromoted discrimination and prejudice against homosexuals in society.
The above resolution looked squarely at this history, in which the
APACR had played a major role in the formation and maintenance of thestigma, and urged its members to take the initiative in removing social
prejudice.
(c) In the mid-twentieth century, "sex reassignment surgery" graduallybecame available for individuals who claim that their gender identity is
incompatible with their biological sex, paving the way for transgenderpeople to live their gender identity through medical procedures. A legal25

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system was created in various countries that allowed individuals tolegally change their assigned sex. Initially, the legal system often treatedthe assigned sex incompatibility as a mental disorder and required ahighly invasive surgery, such as removal of the reproductive glands.
However, it has become a common understanding that having a gender
identity that differs from the biologically assigned sex is an aspect ofhuman sexuality and that an individual's gender identity must be
effectively respected in various situations. In Japan, too, the Act on
Special Cases in Handling Gender Status for Persons with Gender
Identity Disorder (Act No. 111 of July 16, 2003) was finally enacted in
2003, making it possible to make "changes in recognition of the genderstatus of a person." Although the law imposes inhumane and harshrequirements, such as not being married, having no minor children,
requiring surgery to remove the reproductive glands and surgery on theexternal genital organs, it also recognizes the diversity of humansexuality and opened up a way for individuals who identify differently
from their biologically assigned sex to live according to their gender
identity.
ii.

Universal recognition by international communities that
discrimination against individuals based on sexual orientation andgender identity is prohibited and restrictions on their human rights
are unacceptable

The fundamentally modified views of medicine and psychiatry gained
momentum to such an extent that, since the beginning of the 21st century, they
have become universally recognized by the international community.
In the field of international human rights law, the human rights ofhomosexuals and transgender people were first raised as important issues inthe European Court of Human Rights based on the European Convention on
Human Rights. With respect to sexual orientation, starting with the 1981
ruling that the Sodomy Law in Northern Ireland was a violation of humanrights, precedents were established providing that punishing adults forengaging in homosexual behavior violated Article 8 of the European
Convention on Human Rights and providing for the "Right to respect for
private and family life" (Petitioners' Evidence No. A-31, Taniguchi, Hiroyuki"'Doseiai' to 'Kokusai jinken' ['Homosexuality' and 'International Human
Rights']", Mitsunari, Miho, ed. "Doseiai wo meguru rekishi to ho [History and
Law Concerning Homosexuality]" (Akashi Shoten, 2015), pages 148 and
152). On the 31st of March 1994, the United Nations Human Rights
Committee stated that "sex," protected under Article 2, Paragraph 1 (respect
and protection of human rights without discrimination) and Article 26(equality under the law and prohibition of discrimination) of the International26

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Covenant on Civil and Political Rights, included "sexual orientation" and forthe first time, a committee for a major civil rights convention (which monitors
the implementation of the convention and decides the handling of reports /information received thereby) indicated that homosexuality is a civil rights
issue (Petitioners' Evidence No. A-32-1, Human Rights Committee Views on
Toonen v. Australia, State of Tasmania), 8.7 of the main text; Petitioners'
Evidence No. A-32-2, (translation), page 12). Precedents based oninternational civil rights have continued to accumulate ever since (Petitioners'
Evidence No. A-31, Taniguchi, Hiroyuki "'Doseiai' to 'Kokusai jinken'['Homosexuality' and 'International Human Rights']", Mitsunari, Miho, ed.
"Doseiai wo meguru rekishi to ho [History and Law Concerning
Homosexuality]" (Akashi Shoten, 2015), page 153).
In addition, efforts were made to formulate these results into legal documents
and this was realized in the form of the adoption of the Yogyakarta Principles
of 2006 (Principles on the Application of International Human Rights Law inRelation to Sexual Orientation and Gender Identity) (Petitioners' Evidence
No. A-33-1; Petitioners' Evidence No. A-33-2 (translation)). The Yogyakarta
Principles provided that existing international human rights instruments,
starting with the Universal Declaration of Human Rights, are applicable to all
without discrimination by sexual orientation or gender identity and humanrights must not be restricted in any way by sexual orientation or gender
identity.
The Yogyakarta Principles were drafted and adopted by experts, including
incumbent and former officials in the field of international human rights(including eight UN Special Rapporteurs on Human Rights and five present
and former members of the UN committees that monitor the implementationof each convention). Due to the fact that the Yogyakarta Principles wereadopted by such authoritative people, it was cited in subsequent UN
documents and was given a semi-official document status in international
human rights law (Petitioners' Evidence No. A-31, page 156).
In June 2011, the UN Human Rights Council adopted a resolution entitled"Human rights, sexual orientation and gender identity" (A/HRC/RES/17/19)(Petitioners' Evidence No. A-34-1, Resolution adopted by the Human Rights
Council on its seventeenth session, "Human rights, sexual orientation andgender identity" (original); Petitioners' Evidence No. A-34-2, Translation of
the resolution by the United Nations Information Centre). The resolution
expressed grave concern for acts of violence and discrimination committed in
all regions of the world against individuals because of their sexual orientationand gender identity and requested that the United Nations HighCommissioner for Human Rights commission a study, to be finalized by
December 2011, documenting discriminatory laws and practices and acts of27

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violence against individuals based on their sexual orientation and gender
identity in all regions of the world. Subsequently, the resolution declared thata panel discussion (informed by the study) should be convened and the issue
should continue to be prioritized. In response, the High Commissioner for
Human Rights prepared a report and a panel was convened in 2012.
Additionally, a website for the Office of the United Nations HighCommissioner for Human Rights was established and educational videos andpamphlets were distributed. The UN LGBT Core Group (Japan is a memberof this group) was also established and is actively addressing this issue. The
Human Rights Council strengthened its efforts to grapple with this issue by
adopting a similar resolution in 2014 and, in 2016, appointed "independent
experts" to conduct a study on human rights violations based on sexual
orientation and gender identity. Indeed, it could be said that "assuring therights of sexual minorities is a central issue in the UN's human rights policy"(Petitioners' Evidence No. A-114, Science Council of Japan, "Teigen - seiteki
mainoriti no kenri hosho wo mezashite – konin, kyouiku, rodo wo chuusin ni[Proposal to secure rights of sexual minorities – Focusing on Marriage,
Education and Labor]", page 4).
Today, it is universally recognized in the international community that
discrimination against people based on their sexual orientation and gender
identity is not permitted and restrictions on human rights based on sexual
orientation and gender identity are unacceptable.
iii.

Contemporary meaning of "respect for individuals"

In 1947, Beate Sirota Gordon of the GHQ and Japanese citizens wrote Japan's
new constitution with the ideal of creating a democratic country where humanrights are respected. Nevertheless, it is unclear whether or not they had inmind homosexual and bisexual persons in terms of sexual orientation andtransgender persons relating to gender identity.
As mentioned above, in the past, outdated opinions and perceptions had
imposed stigma on homosexual, bisexual and transgender people whichmeant that their individual rights were often not respected. However, it
became clear that these opinions had no scientific basis, which caused people
to reflect on the history of the use of incorrect medical information as an
excuse to violate the human rights of others. Furthermore, the fundamental
shift in psychiatry and psychology meant that legal and ethical views changed
and it became unacceptable to discriminate against any individual or to violate
their basic human rights based on their sexual orientation and gender identity.
This view is now universally recognized and shared by the international
community. (Petitioners' Evidence No. A-6, Taniguchi, Hiroyuki, "Sei jinin
to jinken – Sei doitsu shogai sha tokurei ho no hihanteki kosatsu [Gender28

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Identity and Human Rights - A Critical Consideration of the Act on Special
Cases in Handling Gender Status for Persons with Gender Identity Disorder]"Hogaku Seminar, Issue 753, page 51 (Nippon Hyoron-sha, 2017)). Today,
the United Nations and the international community are working together toeliminate discrimination based on sexual orientation and gender identity.
In these circumstances, the meaning of the first sentence of Article 13 of theConstitution that "all of the people shall be respected as individuals" must
naturally evolve from the position where only heterosexual and cisgenderpersons were recognized as having the correct form of human sexuality.
Human sexuality is deeply associated with an individual's personality and life,and human sexuality is diverse. Homosexuality, bisexuality, heterosexuality
and having no sexual identity at all are natural forms of human sexuality.
Furthermore, people may have different identities from their biologicalgender or their legally-assigned sex and may wish to live their life as adifferent gender. The meaning of the first sentence of Article 13 of theConstitution that "all of the people shall be respected as individuals" must be
clearly premised on such diverse human sexuality.
If the concept of the freedom of marriage depended on the assumption that
"heterosexual and cisgender persons are the only ones that deserve to berespected," freedom of marriage will have no meaning for those people whoare not heterosexual and cisgender. If not interpreted together with thefundamental value of the Constitution that "all of the people shall be
respected as individuals," even the essential attribute of modern marriage,that it is based on the "mutual consent between two willing individuals withequal rights," will be reduced to a mere vestige that was applied in a time
when only certain types of individuals were considered to be "normal" andworthy of respect. However, the Constitution, which was drafted incircumstances in which the regrets of the past were fresh in peoples' minds,
will not allow this outcome. If that was permitted, the Constitution itself
would no longer be our constitution.
If the intent of Article 24, Paragraph 1 of the Constitution is to realize
marriage based on the mutual consent between two individuals with equal
rights, where the two sexes are "respected as individuals" in the true sense,
then there can be no alternative interpretation except that the Constitution
guarantees that marriage is permissible regardless of sexual orientation,
gender identity, or legal gender.
iv.

Summary

The freedom of marriage cannot and should not be denied merely because theparties are considered the same sex under the law. This is why same-sex29【Please share the link to this complaint freely】【Please do not reproduce for profit nor distribute on websites including but not limited to personal webpages,
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marriage is being legislated in many countries around the world withoutchanging the provisions of the constitution or the basic law of various
countries.
4.

Article 24, paragraph 1 of the Constitution does not prohibit same-sex
marriage

Since Article 24, Paragraph 1 of the Constitution states that marriage is based on "themutual consent of both sexes" and "the equal rights of husband and wife," it has beenargued that same-sex marriage is prohibited under the Constitution.
However, Article 24, Paragraph 1 of the Constitution does not specify that having two
people of the opposite sex is a condition for marriage nor does it indicate that only
marriage between individuals of the opposite sex is recognized under the Constitution(Petitioners' Evidence No. A-35, Tsujimura, Miyoko, "Kazoku to kenpo [Family andConstitution]" (Nihon Kajo Shuppan, 2016) page 128). Based on the interpretation of thewording of the provision, there is no basis for deeming that the provision prohibits
marriage between persons of the same sex under the law.
If the purpose of the enactment of Article 24 of the Constitution is considered, it would
become even clearer that the provision does not prohibit marriage between persons of thesame sex under the law. It is the purpose of the enactment of Article 24 to renounce thefamily system under the Meiji Civil Code and to extend the principle of respect forindividuals to the institution of marriage. In order to realize the potential of individuals
and the important function of marriage as the basis of a democracy, Article 24, Paragraph
1 of the Constitution, providing that "marriage shall be based only on the mutual consent
of both sexes", renounced the family system under the Meiji Civil Code. The familysystem did not provide for individual freedom whereas the new Constitution guaranteed
respect for individuals and the right of individuals to autonomously determine the formof their marriage, based only upon the free and equal consent of both parties and without
any interference by a third party.
In light of the purpose of the enactment, it is impossible to construe that marriage otherthan between heterosexual couples is prohibited under the provision.
This is consistent with the relevant ruling of the Supreme Court. In its ruling on theRequirement for Married Couples to Adopt the Same Surname (Supreme Court Grand
Bench, December 16, 2015, 69(8) Supreme Courts Reports (civil cases) page 2586), theSupreme Court held that "Article 24, Paragraph 1, of the Constitution provides that'marriage shall be based only on the mutual consent of both sexes and shall be maintained
through mutual cooperation founded upon the equal rights of husband and wife,' isunderstood to indicate clearly that whether to marry, when to marry, and whom to marryshould be left to the decision of the parties, having equal rights and free will." In theruling, the court used terms such as "between the parties," which do not identify specific30【Please share the link to this complaint freely】【Please do not reproduce for profit nor distribute on websites including but not limited to personal webpages,
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・Sections about the plaintiff have been omitted from this modified version of the complaintgenders, and intentionally avoiding terms such as "heterosexual," "between male andfemale" or "husband and wife". It can be assumed that the Supreme Court demonstrated
that said provision does not prohibit marriage with a partner of the same sex under thelaw (Petitioners' Evidence No. A-36, Kimura, Sota "Fufu dosei goken hanketsu no imi –Nanno kubetsu ga mondai nanoka [Constitutionality of Requiring Same Surname forMarried Couples – What kind of distinction is the problem?]" Journal "Jiyu to Seigi"[Liberty & Justice] June 2016 Issue, page 110).
Furthermore, an influential doctrine in respect of the Constitution states that "Article 24,
Paragraph 1 of the Constitution should not be construed as prohibiting a union otherthan 'marriage' from being recognized in the same way as marriage under theConstitution (Petitioners' Evidence No. A-37 Watanabe, Yasuyuki and Shishido, Jouji andothers. "Kenpo I Kihon ho [Constitutional Law I, A Basic Law]," Nippon Hyoron-sha,
2016, page 456)" and states that Article 24, Paragraph 1 of the Constitution does notprohibit the marriage of same-sex couples.
When the Respondent states its argument for not accepting marriage registration frompersons of the same sex under the law, it only refers to the provisions of the Civil Codeand the Family Register Act and does not refer to the wording of Article 24, Paragraph 1of the Constitution. Therefore, it is obvious that the above argument of the Respondentis without merit.
5.

Conclusion

The Petitioners are prevented from freely forming civil marriages and from autonomously
determining with whom they wish to marry based solely on the mutual consent of theindividuals. In other words, the Civil Code and the Family Register Act, which do notallow same-sex marriages, are violating the Petitioners' freedom of marriage, which isguaranteed under Article 24, Paragraph 1 of the Constitution.
Even if the Petitioners' same-sex marriages were allowed under the law, there can be no
unreasonable restrictions on the human rights of others or circumstances that may harm
civil marriage and other basic societal systems. The provisions of the Civil Code and theFamily Register Act disallowing same-sex marriage unreasonably violate freedom ofmarriage, which is a constitutional right and therefore, in this respect, both the Civil Codeand the Family Register Act are unconstitutional and invalid.

VI

Not allowing same-sex marriage under the law violates the principle of equality
1.

Introduction

Article 14, paragraph 1 of the Constitution provides that "All of the people are equal under
the law and there shall be no discrimination in political, economic or social relations
31

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because of race, creed, sex, social status or family origin." It is pointed out by theSupreme Court that this provision sets forth the equality under the law and prohibits
discriminatory treatment under the law unless there are reasonable grounds based on thenature of the matter (Supreme Court Grand Bench, 27 May, 1964, Minshu Vol.18, No.4,
at 676, etc.).
In the present case, there is no reasonable ground based on the nature of the matter (i.e.,
marriage) for the discriminatory treatment by the present civil code and the Family
Register Act under which those who wish to marry someone from the opposite sex(heterosexual couples) are allowed to marry and those who wish to marry someone fromthe same sex (homosexual couples) are not allowed to marry (the "Difference inTreatment"), and thus the Difference in Treatment should be considered a discriminatory
treatment under the law prohibited by Article 14, paragraph 1 of the Constitution. The
details are as follows.
2.

Discriminatory treatment based on sexual orientation

First, the Difference in Treatment is based on sexual orientation.
That is, marriage is based on an intimate relationship with sexual love, with homosexuals
being oriented toward the same sex, and bisexuals being also sometimes oriented toward
the same sex. However, if homosexuals, etc. wish to marry a partner of legally the samesex in accordance with their sexual orientation, they are not allowed to marry the partner
they wish because the law does not allow same-sex marriage. In contrast, heterosexuals
may marry a desired partner of the opposite sex in accordance with their sexual orientation.
Such a difference arises because the system of legal marriage which only allows oppositesex marriage is not indifferent to the sexual orientation of those who wish to marry, andunder this system, homosexuals are unable to realize marriage with their desired partner
because of their sexual orientation. Therefore, the system of legal marriage which allows
opposite-sex marriage and does not allow same-sex marriage introduces discriminatory
treatment based on the sexual orientation of those who wish to marry.
3.

Infringed rights / interests

The rights / interests of homosexuals are violated by this Difference in Treatment.
(1)

Violation of freedom of marriage

First, homosexuals may not marry due to this Difference in Treatment. As
mentioned above, freedom of marriage is constitutionally guaranteed forhomosexuals (legally same-sex couples) too and this Difference in Treatment
violates the freedom of marriage of homosexuals (legally same-sex couples)(Article 24.1 of the Constitution).

32

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No enjoyment of social recognition

Furthermore, as a result of this Difference of Treatment, same-sex couples not only
cannot receive official certification in the form of a family registry showing theirmarriage, but also they cannot also receive social recognition.
In other words, as mentioned in the Supreme Court's judgment on the waiting
periods required for remarriage (Supreme Court December 16, 2015, Vol. 69 no. 8
page 2427 of Collection of Civil Judgments of the Supreme Court), "the sense ofrespect for legal marriage is still prevalent among the public" in Japan and couples
who marry legally will be recognized "officially" as a couple and as in a relationshipwhich should be socially recognized. On the other hand, since same-sex couples
cannot marry, they cannot be recognized "officially" as a couple and as a matter ofcourse will not therefore be socially recognized.
For couples, recognition by society of their relationship is important. Withoutsocial recognition, both parties in the couple may not themselves recognize or
respect their own relationship and may not be able to continue their relationshipwith peace of mind. Social recognition is essential for couples to respect their own
relationship and establish a stable relation.
Since they are socially recognized, opposite-sex couples benefit from psychologicaland social gains by being able to build stable relationships and respect as a couple.
On the other hand, same-sex couples do not benefit similarly and are prevented
from building stable relationships and respect as a couple.
(3)

No specific rights / benefits associated with marriage

Furthermore, due to the Difference in Treatment, same-sex couples may not enjoy
several legal and economic rights / benefits and de facto benefits that legallymarried couples may enjoy. The main examples are as follows.
i.

Rights / benefits under the Civil Code(i)

Living together / cooperation / support obligations

Married couples are obligated to live together, cooperate and support eachother (Article 752 of the Civil Code). These are considered fundamental
obligations associated with marriage (Petitioners' evidence A 38 - p. 189 of"New Annotations on Civil Code (17)" by Yu Kamiya, edited by Shuhei
Ninomiya (Yuhikaku, 2017)). Under these obligations, either party to amarried couple may demand from the other party to live together as well as
cooperation and support. Failure to perform may constitute a cause fordivorce and gives rise to a claim for compensation for damages.

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On the other hand, since same-sex couples cannot marry, a party to a couple
may not demand from the other to live together, cooperate and support thempursuant to Article 752 of the Civil Code.
(ii)

Right of Inheritance

When a member of a married couple dies, his or her spouse becomes the legal
heir of the deceased person (Articles 890 and 900 of the Civil Code), and theheir is entitled to a contributory portion (Article 904-2 of the Civil Code) andto a statutory reserved portion (Article 1042 and thereafter under the amended
Civil Code) of the inheritance under the Civil Code.
However, since the law does not recognize same-sex marriages, the memberof a same-sex couple cannot become the legal heir of his or her partner, andthere is no entitlement to a contributory portion or a statutory reserved portionof inheritance. Therefore, unless the partner leaves a will while alive, theremaining partner cannot inherit from the deceased partner.
(iii) Presumed co-ownership and distribution of property
When a married couple separates, a presumption of co-ownership of property
applies (Article 762 (2) of the Civil Code), and a distribution of property may
be claimed as part of the process of conciliation of domestic relations andadjudication of domestic relations (Article 768 of the Civil Code).
However, since the law does not recognize same-sex marriages, thepresumption of co-ownership of property and the right to claim distributionof property does not, as a matter of course, apply.
(iv) Joint parental authority
For a heterosexual couple, upon marriage, the children born in the couple aresubject to the couple's joint parental authority during the marriage (Article
818.3, main part of the Civil Code). However, for a same-sex couple, thepartners are not able to exercise parental authority jointly, even if they raise
the child together under the parental authority of either member of the couple.
For example, this may happen where a person with a child from a previous
relationship with a person of the opposite sex meets a same-sex person andbegins a relationship with them. There are also cases where a couple of two
women may raise a child together which was borne from one of the womenwith sperm provided by a third party male donor and where the two womenand the male donor take care of the child together. In these cases, however,the same-sex partner who does not have a maternal or paternal relationshipwith the child cannot have any legal relationship with him / her because same34

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sex marriage is not officially recognized and no legal framework allows aparental relationship between the non-maternal / non-paternal partners of asame-sex marriage and these children. Therefore, in cases where a same-sex
partner who is the mother or father of the child dies, since the other partner
has no parental authority, a procedure for designation of a guardian of a minor
must be initiated (Article 838.1 of the Civil Code) unless the maternal /paternal same-sex partner died testate assigning the surviving partner to be
the guardian of the minor (Article 839.1 of the Civil Code). In this procedure,
there is no guarantee that the surviving partner will be assigned as theguardian of the minor. If not assigned, the surviving partner cannot raise thechild, even if she / he has actually raised the child previously and has formed
a de facto parental relationship.
This situation is unstable anddisadvantageous also from the perspective of the child.
Furthermore, a non-maternal / non-paternal same-sex partner adopts the child,the same-sex partner may gain parental authority over the child but in thiscase, the maternal / paternal same-sex partner must lose her / his parental
authority (Article 818.2 of the Civil Code). Thus, it is not possible for a samesex couple to exercise joint parental authority in any case.
ii.

Rights and interests under tax laws(i)

Income tax and inhabitant tax

Married couples are entitled to spouse deduction for income tax andinhabitant tax (Article 2, paragraph 1, subparagraph 33 to paragraph 33-4,
Article 83 and Article 83-2 of the Income Tax Law, and Article 34, paragraph1, subparagraph 10-2 of the Local Tax Law), and the total amount of
deductions for medical expenses for income tax and inhabitant tax can becalculated by household (Article 73 of the Income Tax Law and Article 34,
paragraph 1, subparagraph 2 of the Local Tax Law).
However, same-sex couples who are not allowed to marry cannot receive any
such preferential treatment.
(ii)

Inheritance tax

If a married person dies, no inheritance tax will be imposed on the remaining
spouse no matter how large the inheritance is if the amount of inheritance thatthe spouse acquires is no more than the statutory share (Article 19-2 of theInheritance Tax Law). However, same-sex couples cannot receive suchpreferential treatment.
In addition, in a same-sex couple, property can be inherited only by legacy(izou). However, the amount of inheritance tax levied on this is high as
35

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compared with the case in which a spouse in a married couple inherits theproperty as legal heir, since the amount of inheritance tax is 20% higher(Article 18 of the Inheritance Tax Law).
Furthermore, if there is a gift of real estate for residential use or money toacquire real estate for residential use between a couple married for at least 20
years, in addition to the basic deduction of 1,100,000 yen, there is apreferential deduction of up to 20,000,000 yen (Article 21-6 of the said law),but same-sex couples cannot benefit from such preferential treatment.
iii.

Other legal rights and interests(i)

Visa status in Japan etc.

For a Japanese and foreign national heterosexual couple, the foreign partner
may obtain a Japanese visa status as "spouse, etc. of a Japanese national"
upon marriage and is able to stay in Japan for a long period (Article 2-2
paragraph 2 of the Immigration Control and Refugee Recognition Act, andTable 2 thereof). On the other hand, the foreign partner of a same-sex couple
cannot obtain such visa status since she / he is not legally recognized as
spouse.
Also, for a Japanese and foreign national heterosexual couple, if the foreign
partner overstays beyond the permitted visa period and is subject todeportation, a special visa status may be granted if such foreign partner has
cohabited with a Japanese national as spouse for a significant period of time
and there exist sufficient grounds showing that their marriage is stable andmature, such as having children (Article 50 paragraph 1 item 4. of the said
Act. See also "Guidelines on Special Permission to Stay in Japan" issued by
the Immigration Bureau, Ministry of Justice).
Court cases that have granted this special visa status include (i) Tokyo District
Court, Judgment, 28 August 2007, Hanrei Jihou 1984, page 18, (ii) Fukuoka
High Court, Judgment, 22 February 2007, (iii) Tokyo High Court, Judgment,
21 November 2007 and (iv) Tokyo District Court, Judgment, 25 August 2017.
Although the abovementioned Guidelines require, as one of the positive
criteria, that "a marriage [...] has been legally established," even de facto
marriage was admitted as ground for the special visa status in some court
cases including (i) Nagoya High Court, Judgment, 19 January 2018, (ii)Nagoya High Court, Judgment, 28 February 2018 (2017, Gyo ko, No.3) and(iii) Nagoya High Court, Judgment, 11 April 2018.
In connection with the special visa status program, a court case (Tokyo
District Court, Judgment, 29 February 2008, Hanrei Jihou 2013, page 61, as
submitted to the court as Petitioners' evidence A 39) points out that if36

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cohabitation has the substance of marriage, protection under the law should
be granted to such relationship, by stating as follows:"Where a foreign national who wishes to stay in Japan claims that he /she has a legal or actual marriage relationship with a Japanesenational, and such Japanese national also wishes said foreign national
to stay in Japan, such fact should be taken into account as a significant
element when considering the grant of special visa status to the foreign
national, if their relationship has the substance of marriage, which is abona fide cohabitation for the purpose of perpetual spiritual andphysical union of both sexes".
On the contrary, foreign partners in same-sex couples are not granted special
visa status and, therefore, are forced to leave Japan back to their homecountries.
In addition, while Japanese citizenship is granted by the government's
permission upon application of a foreign national wishing to obtain the
citizenship if he / she satisfies certain requirements such as continuous
residence in Japan for more than 5 years (Article 5 of the Nationality Act),the foreign spouse of a Japanese national is granted a shortened period ofresidence of 3 years (Article 7 of the said Act). However, since same-sex
marriage is not recognized, same-sex couples are not able to enjoy theprivilege of this relaxed requirement.
(ii)

Survivors' pension

In the case of a heterosexual couple, the survivor's welfare pension may be
paid not only to the legally married spouse but also to the de facto spouse(Article 3 paragraph 2 and Article 59 paragraph 1 of the Employees' Pension
Insurance Law). However, in the case of a same-sex couple, since they cannot
marry, naturally they are not eligible to receive the survivor's welfare pension
as legally married spouses. Furthermore, it is unclear whether they are
eligible to receive the survivor's welfare pension as de facto spouses.
(iii) Survivors' benefits under the Crime Victims Benefit System
In the case of a heterosexual couple, when one of the partners dies because ofa criminal act, the survivor's benefit under the crime victim benefit system
which may be paid not only to the legally married spouse but also to the defacto spouse (Article 4 item 1 and Article 5 paragraph 1 item 1 of the Act on
Support for Crime Victims by Payment of Crime Victim Benefits, etc.).
However, in the case of a same-sex couple, since they cannot marry, naturally
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spouses. Furthermore, it is unclear whether they are eligible to receive thesurvivors' benefits as de facto spouses.
(iv) Occupancy in public housings
In many municipalities, the presence of "relatives who live or plan to live
together" is a condition of occupancy in public housings. A legally married
spouse falls under the category of "relative" here, and a de facto spouse isoften considered to fall under the category of "relative" in the case of aheterosexual couple.
However, in the case of a same sex-couple, eligibility for tenancy is limited
to a small number of municipalities. In most municipalities, same-sex
couples are not eligible for occupancy in public housings.
(v)

Protection from DV Prevention Act

The "Act on the Prevention of Spousal Violence and the Protection ofVictims" (the "DV Prevention Act") applies not only to the spouse in a defacto marriage but also to the person who has been subject to violence from aperson in a relationship where both shares the same living place (excluding
relationships in which both persons do not live together in a manner similar
to that of a marital relationship) (the first paragraph of Article 28-2 of the DV
Prevention Act).
However, in practice, it is not clear whether protection under the DV
Prevention Act applies to same-sex couples because they are not allowed tomarry ("Considering the fact that 'marriage' is understood as marriage
between men and women, the application of DV Prevention Act to same-sex
couples should be carefully considered," Petitioners' evidence A 40, Naoto
Ogawa (2018), "Reality of Protection Order at Tokyo District Court," Family
Law and Judicial Decision, October, pp. 12.).
iv.

De facto disadvantage(i)Medical consent, etc.

When a partner in a same-sex couple is transported by an ambulance in an
unconscious state, the hospital may refuse requests for visits and an
explanation of the medical condition, or may not allow them to proceedsmoothly because the other partner is not legally a relative.
Additionally, it is usual for married heterosexual couples that the consent of
one spouse is treated as putative consent of the other when medical acts,
including surgery, are required to prolong life. On the other hand, it is also38

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・Sections about the plaintiff have been omitted from this modified version of the complaintusual for same sex couples that hospitals do not accept such consent because
the partner in a same-sex couple is not legally a relative. This means that apartner in a same sex couple cannot provide the necessary medical care to theother who is between life and death.
(ii)

Moving into private housing

Even if same-sex couples apply for leases for private housing, lessors areoften reluctant to rent a home to same-sex couples who are not allowed tomarry. Therefore, for same-sex couples, it is not only that they cannot qualify
to move into public housing by regulations, but it is also difficult to move into
private rental properties.
(iii) Purchase of housing
When trying to buy a house, it is possible for married heterosexual couples to
get a pair-loan considering both incomes. As a result, the partners to themarried couple enter into a loan agreement separately and each of them
becomes a joint and several guarantor of their respective debts so that themarried couple owe the debts under the loan agreements equally and sharethe ownership of the house. Many financial institutions, however, do notallow pair-loan agreements for same-sex couples who are not allowed tomarry. Therefore, same-sex couples cannot use pair-loans, and only one ofthem is forced to become the owner of the house and the borrower.
(4)

Summary

As mentioned above, the rights and benefits that homosexuals (same-sex couples)cannot obtain due to the difference in treatment are diverse including: constitutional
freedom of marriage, psychological and social interests associated with social
recognition, legal and economic rights and interests, and de facto interests.
Therefore, it should be stated that the infringements and disadvantages that thedifference in treatment subjects homosexuals to are extremely serious.
4.

Matters that should be strictly reviewed

As set out above, this disparate treatment constitutes a substantial violation of rights andbenefits of homosexuals, but whether it can be said that this discriminatory treatment,with such significant results, is based on "a rational basis in light of the nature of thematter", that is to say, whether there are grounds to justify excluding LGBT+ individuals(same sex couples) from the marriage system thereby creating a substantial violation ofrights and benefits, must be strictly reviewed.
The reason for this is as follows.

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It is disparate treatment based on matters enumerated in the latter clause[of Article 14(1) of the Constitution]

First, it is thought that discrimination based on the matters enumerated in the latter
clause of Article 14(1) of the Constitution is generally unreasonable in light of theprinciples of democracy, and the reasonableness of such discrimination must be
strictly scrutinized (Plaintiff Exhibit A15, Ashibe, Takahashi Kenpō, Vol. 6, p. 134(Iwaha Shoten, 2015)), and this disparate treatment of LGBT+ individuals (samesex couples) based on their sexual orientation, constitutes disparate treatment basedon "social status" and "gender" enumerated in such latter clause.
That is to say, first, the "social status" in the latter clause of Article 14(1) of theConstitution, is understood to be "the position or status a person occupies in societythat is somewhat continuous and not temporary" (broad interpretation), "theposition in society occupied non-temporarily by a person, that such person cannot
escape through their own power, and that is accompanied by some type of societal
evaluation as a practical matter" (narrower interpretation), or "a fixed position or
status in society that was determined at birth or that cannot be avoided of one's own
volition" (narrow interpretation) (Plaintiff Exhibit A41, Ashibe, Kenpōgaku III
Jinken Kakuron (Expanded Edition), p. 47 (Yuikaku, 2000)). With respect to thispoint, sexual orientation is a matter that you cannot freely change of your own
volition.
Furthermore, for a long time, the sexual orientations of homosexuality andbisexuality have been the subject of societal prejudice, scorn, and a lack ofunderstanding which portrays them as abnormal or perverse sexual desires, andhave been branded as abnormal love, and such prejudice strongly remains today.
Accordingly, regardless of the interpretation of the definition of "social status",
sexual orientation constitutes a *social status*.
In addition, while it cannot be denied that the discrimination based on "gender"
contemplated in the latter part of Article 14, Clause 1 of the Constitution focusedon discrimination depending on whether one was male or female, the prohibition
on gender discrimination was made clear in the Constitution because historicallywomen were not viewed as having equal rights, and discrimination against woman
regularly existed. One could consider that the discrimination against women is
discrimination relating to the gender of the socioeconomic minority that was
women. In sexual orientation this would be homosexuals, and in gender
identification, transgender persons, as they are a "gender" minority. Conjointly,
sexual minorities have also long been the subject of prejudice and discrimination.
If considered in this way, then discrimination against sexual minorities is none otherthan discrimination relating to "gender".
On this point, the United Nations Human Rights Commission has confirmed that40

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・Sections about the plaintiff have been omitted from this modified version of the complaint"sex", in Article 2, paragraph 1, clause 26 of the International Bill of Human Rights,
includes sexual orientation (Plaintiff's exhibit 32-1, 32-2, March 31, 1994 complaintof Nicholas Toonen regarding Tasmania, Australia's law penalizing sexual
relationships between consenting adults). Accordingly, the disparate treatment
based on sexual orientation is disparate treatment based on "gender".
As described above, disparate treatment based on sexual orientation is disparate
treatment based on "social status" and "gender". Accordingly, the reasonablenessof this disparate treatment, as it is generally unreasonable disparate treatment inlight of the principles of democracy, must be strictly scrutinized.
(2)

Disparate treatment based on sexual orientation is discrimination basedon something one cannot change of their own volition

Also, considering that sexual orientation is not something one can change freely of
their own volition, the reasonableness of disparate treatment based on an attributethat one cannot change through one's own volition or will must be carefully
determined. This view has been adopted by the Supreme Court.
For instance, in the citizenship of children born out of wedlock case (Minshū Vol.
62, No. 6, p. 1367, (June 4, 2008)), the court considered whether Article 3(1) of
the former Nationality Act, which, with respect to children of a Japanese father and
non-Japanese mother, specifies that only when the parents were married did thechild obtain Japanese citizenship, but did not recognize a child born out of wedlock
as having obtained Japanese citizenship, violated Article 14(1) of the Constitution,
the Supreme Court, taking into consideration that "whether one is born in or out of
wedlock is a matter that one cannot change through their will or effort" and statedthat "it is critical that we carefully examine as to whether or not there is a rational
basis for creating discrimination in making a trait like this a factor for obtaining
citizenship."In addition, in the discrimination in inheritance of children born out of wedlock case
(Minshū Vol. 67, No. 7, p. 1320, (4 September 2013)), in which it was contested
whether or not the provisions of the Civil Code regarding legally mandated
inheritance of children born out of wedlock violated Article 14(1) of theConstitution, the Supreme Court determined that, when considered in totality, there
was not a reasonable basis for discrimination in legally mandated inheritance,noting "it can[not] be permitted to use a matter like whether a child's parents were
married, which such child could not choose or correct, to lead to the disadvantage
of such child."(3)

The infringed benefits and rights are substantial

Furthermore, when considering discrimination relating to an important right or
benefit, the reasonableness of such discrimination is subject to a strict scrutiny
41

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standard (Plaintiff Exhibit A42, Takahashi, Rikkenshūgi to Nihonkoku Kenpō, Vol.
4, p. 166 (Yuikaku, 2017)), considering as described above at 6(3) that thisdiscrimination is "discrimination relating to an important right or benefit",
regardless of whether or not this discrimination is of the type enumerated in thelatter clause of Article 14(1) of the Constitution, the reasonableness of it must be
strictly scrutinized.
(4)

It is a matter for which the democratic process cannot provide relief

In addition to the above, those subject to this discrimination are LGBT+ individuals,
who make up a small portion of the population, and are decisively a minority insociety. What's more, LGBT+ individuals have been subject to discrimination andprejudice for many years, and fearing further discrimination and prejudice as aresult of identifying their issue, they are in a position where it is extremely difficult
to raise their voice to obtain their rights, and in light of the deeply-rooted andwidespread discrimination and prejudice that exist broadly in society it is not
something that can easily be corrected. Given the situation facing LGBT+
individuals, it is incredibly difficult for the democratic process to eliminate thisdiscrimination and for LGBT+ individuals to obtain relief. Considering this,correction of this discrimination cannot be left to the Diet, and we ask the court tostrictly scrutinize whether or not such discrimination is reasonable.
In Justice Ichiro Terada's concurring opinion in the Supreme Court's decision on
regulations relating to married couples' surnames (Minshū Vol. 69, No. 8, p. 2586,(December 16, 2015)), he wrote that "when it comes to the nature of a decision
related to the ways of a distinct minority, it is difficult to discover or expect a fairconsideration through the democratic process", and (setting aside whether thedecision as to whether married couples should have the same surnames is amenable
to the democratic process), it is understood that it can be difficult to protect thehuman rights of minorities via the democratic process.
(5)

Summary

In summary, the determination as to the reasonableness of this discrimination must
be strictly reviewed.
5.

The disparate treatment is not justifiable

Now, we turn to consider whether there is a reasonable basis for this discrimination inconnection with marriage?
(1)

In light of the meaning and purpose of marriage, there is no reason to
exclude LGBT+ individualsFirst, the meaning and purpose of marriage is found in stabilizing the personal42

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・Sections about the plaintiff have been omitted from this modified version of the complaintconnection between partners (Plaintiff's Exhibit A38, Shūhei Ninomiya's Shin
Chūshaku Minpō (17), Ninomiya, p. 69 (Yuikaku 2017)), there is no difference,
whether in a heterosexual couple or a homosexual couple, in the importance ofstabilizing the personal connection between partners.
In this regard, discrimination based on sexual orientation in marriage, in otherwords, completely excluding homosexual couples from the marriage system, is not
driven by the meaning and purpose of marriage, and, in fact, is inconsistent withthe meaning and purpose of marriage.
(2)

There is no logical basis for not granting each infringed right and benefit

Next, in considering each right and benefit that same sex couples cannot receive asa result of this discrimination, there is no logical basis for not granting them to samesex couples. Below, we consider the meaning and purpose of granting each of themain rights and benefits associated with marriage under the Civil Code.
i.

Cohabitation, cooperation and support obligation (Civil Code,
Article 752)

From the fact that a married couple form a "spiritual, physical, and economic
collective", the obligation to maintain and perpetuate that collective is the
cohabitation, cooperation and support obligation (Plaintiff's Exhibit A38,
Shūhei Ninomiya's Shin Chūshaku Minpō (17), Kamiya, p. 187 (Yuikaku
2017)).
Regardless of whether a couple is heterosexual or homosexual, they form a"spiritual, physical, and economic collective", so the fact that a couple ishomosexual is not a reason for not giving them the legal effect of the
cohabitation, cooperation and support obligation.
ii.

Right of inheritance (Civil Code Articles 890 and 900)

The meaning of giving a right to inheritance to a spouse is to settle the marital
assets, support the surviving spouse and life security (Plaintiff's Exhibit A43,
Yoshinosuke Nakagawa and Hisao Izumi's Shinpan Chūshaku Minpō (26),Nakagawa, pp. 276-277 (Yuikaku 1992)).
Regardless of whether a couple is heterosexual or homosexual, there is nochange in the necessity of settling the marital assets or for the support and life
security of the survivor.
iii.

Presumption of common ownership of assets (Civil Code Art.
762(2)) and allocation of assets (Civil Code Art. 768)

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established because, as married life progresses, the means by which one
member of the couple obtains an asset becomes vague, and it becomes
impossible to clearly establish assets as separate property (Plaintiff's Exhibit
A38, Ninomiya Shūhei's Shin Chūshaku Minpō (17), Inubushi, p. 260(Yuikaku 2017), and allocation of assets is the division of assets obtained
through the cooperation of the couple, and, following divorce, has the qualityof being a source of subsistence and compensation, and acts as a sanction
against the culpable party (Inubushi at 397).
As any of these rationales and qualities apply regardless of whether a couple
is heterosexual or homosexual, the fact that a couple is homosexuals cannot
be a basis for stripping the effect of the regulations relating to the presumptionof common ownership and the allocation of assets.
iv.

Joint custody (Civil Code Art. 818(3)The notion of custody entrusts the social duty to provide benefits and welfare
to minor children to the love of a parent, and joint custody reflects the equalityof parents (Plaintiff's Exhibit A44, Fujio Obo and Atsushi Nakagawa's
Shinpan Chūshaku Minpō (25), Shinzoku (5) (Revised Edition), p. 15(Yuikaku 2004)). Regardless of whether a couple is heterosexual or
homosexual, there is no change in their obligation to fulfill the social duty toprovide benefits and welfare to minor children, or in that obligation being
borne equally by both halves of the couple.
The important thing for a parent-child relationship is the child's welfare andprotection, and as a homosexual couple's familial relationship is stable,
ensuring the child's upbringing therein leads to the child's welfare. The
substantial matter is whether an appropriate reciprocal relationship between
the parent and child has formed, and there is no necessity that the father be a
man and the mother be a woman (Plaintiff's Exhibit A38, Shūhei Ninomiya's
Shin Chūshaku Minpō (17), Ninomiya, p. 77 (Yuikaku 2017)).
As described above, with respect to any of the main rights and benefits that
accompany marriage pursuant to the Civil Code, when examined in light of
their meaning and purpose, not a single one logically requires that a couple
be heterosexual. The same is true for those rights and benefits not discussed
above.
(3)

It violates the dignity of LGBT+ individuals

Furthermore, as marriage has the effect of granting societal recognition that acouple is legally a family, the current state of not recognizing the marriage of samesex couples applies a stigma to them that "society does not recognize yourrelationship", and is the equivalent of labeling same sex couples and LGBT+
44

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individuals as second class citizens. In addition, with respect to sexual orientation,
the idea that only heterosexual love is normal and homosexual or bisexual love isabnormal, in other words a "heterosexual canon", creates heterocentrism, which isa self-perpetuating seed.
This situation harms the dignity of LGBT+ individuals, interferes with thedevelopment and lowering of self-esteem, worsens mental health, leads to thoughts
and attempts of suicide, and is one of the major factors in creating the difficult life
led by LGBT+ individuals.
Put another way, according to multiple domestic surveys, the percentage of LGBT+
individuals who have had suicidal thoughts or attempted suicide is high (Plaintiff's
Exhibit A45, Furumoto et al. "Bengoshi / Bengoshikai ni yoru Jisatsusaku noTenbō" Jiyū to Seigi (Oct. 2013), p. 44). The government's 2012 and 2017
Comprehensive Suicide Prevention Overview (Plaintiff's Exhibit A46, Jisatsu Sōgō
Taisaku Daimō, p. 8 (2012); Plaintiff's Exhibit A47, Jisatsu Sōgō Taisaku Daimō,
p. 15 (2017)), also comments on the high percentage of thoughts of suicide amongst
sexual minorities, including LGBT+ individuals.
Analysis shows that the source of this high rate of suicidal thoughts is that, in asociety where heterosexuality is viewed as obvious while homosexuality is subject
to discrimination and prejudice, LGBT+ individuals are forced to put on theappearance of being heterosexual, often causing intense internal psychologicaltension, which results in the worsening of one's mental health (Plaintiff's Exhibit
A45, at 52). The two aforementioned Comprehensive Suicide Prevention
Overviews also state that "lack of understanding, prejudice, etc. should be taken associetal forces behind this."
The background of suicidal thoughts and attempted suicide amongst sexual
minorities, including LGBT+ individuals, is considered to be caused by several
factors, but, in particular, what kind of partner one (i) has romantic feelings for, (ii)finds sexually attractive, and (iii) builds the intimate relationship based on sexual
love, is inseparable from one's identity, character, life, and pursuit of happiness. In
a society where the fact that one's partner is of the same sex is viewed as abnormal
or the person is viewed as a second class citizen. On a daily basis, LGBT+
individuals have to bear the feeling of hopelessness and powerlessness of their
existence and the fact that they will not be accepted by society the same asheterosexuals, and the discomfort and fear of being discriminated against andexpelled from society.
The marriage system has broadly penetrated the national consciousness; it isrecognized as an important life event that can affect all, and the fact that a pair is alegally married couple is recognized as obvious in social life, and respected. For
that reason, the state of the marriage system directly and indirectly has a large
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impact on people's consciousness. The current state of the marriage system, inwhich marriage is limited to heterosexual couples, grounds, supports, and prevents
the correction of discriminatory attitudes and prejudice that homosexual couples
and LGBT+ individuals are abnormal and "do not deserve the recognition ofsociety". If the current marriage system, in which same sex couples cannot marry,
is not revised, it is unimaginable that the discriminatory attitudes and prejudiceagainst same sex couples and LGBT+ individuals will be corrected.
In addition, for LGBT+ individuals, the fact that heterosexuals can marry thepartner of their choosing in accordance with sexual orientation, but an LGBT+
individual cannot, fosters in the LGBT+ individual a feeling of hopelessness andpowerlessness associated with society not recognizing the individual's life andpursuit of happiness in accordance with the individual's sexual orientation.
In these ways failing to recognize the marriage of same sex couples is a factor informing the basis for the societal acceptance of the view that, when compared toheterosexuals, LGBT+ individuals are abnormal or inferior, and, through that, as
we speak, the dignity of LGBT+ individuals continues to be seriously harmed.
Accordingly, there is no room for legitimizing the disparate treatment that leads tothis situation.
(4)

It violates the purpose of the principle of marriage by notification

In addition to the foregoing, in Japan, marriage occurs by delivery of a marriage
notification to the authority responsible for administering the family registry(principle of marriage by notification), but the purpose of this means of concluding
a marriage is to confirm that the parties have a desire to marry, that there is no
impediment to the marriage, such as a polygamous marriage or the prohibition on
marriage between close relatives, and to make a public record of the marital
relationship and make the familial relationship clear (Plaintiff's Exhibit A38, Shūhei
Ninomiya's Shin Chūshaku Minpō (17), Ninomiya, p. 80 (Yuikaku 2017)).
However, as a result of not recognizing the marriage of same sex couples, even
where same sex couples are practically in a marital relationship, as they are notrecognized as family on the family register, the objective of "making a publicrecord of the marital relationship and make the familial relationship clear" cannot
be achieved.
Accordingly, not only does this disparate treatment not have a reasonable basis
considering the nature of marriage, but it gives rise to being in direct contraventionof the objective of the principle of marriage by notification of "making a publicrecord of the marital relationship and make the familial relationship clear."46

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Summary

As demonstrated above, as a result of this disparate treatment, extremely importantrights and benefits of same sex couples are being infringed upon and, in light of thenature of marriage, the exclusion of same sex couples from the marriage system isimpermissible. Even when examining each of the rights and benefits conferred
upon married couples in light of their purposes, no logical basis for excluding samesex couples can be found.
Furthermore, the current state of not recognizing same sex marriage, in addition toseriously harming the dignity of LGBT+ individuals, has the effect of contradicting
the purpose of the marriage system to "make a public record of the marital
relationship and make the familial relationship clear". It follows that this disparate
treatment, when considering the nature of marriage, has no reasonable basis.
6.

Conclusion

In addition to the reasonableness of this disparate treatment needing to be strictly
scrutinized, when considering the current law in light of the nature of marriage, there is
no room to justify this disparate treatment.
Accordingly, this disparate treatment constitutes discriminatory treatment prohibited by
Article 14(1) of the Constitution.

VII

Legislative inaction is unlawful under the State Redress Act
1.

Criteria for the unlawfulness of legislative inaction under the State RedressAct

The Grand Bench judgment of the Supreme Court regarding the unconstitutionality ofprohibiting remarriage within a certain period (Supreme Court Grand Bench judgment,
December 16, 2015, Minshu Vol. 69, No. 8, p. 2586) states that "in cases such as where
the Diet neglects, for a long time and without justifiable reasons, to take legislative
measures such as revising or repealing the provisions of a law even though it is clear thatthose provisions are in violation of the Constitution as they restrict rights and interests
constitutionally guaranteed or protected without reasonable grounds, the legislative
inaction of the Diet members should, on an exceptional basis, be deemed to be unlawful
for the purpose of applying the provisions of Article 1, paragraph 1 of the State Redress
Act as the actions of the Diet members in the legislative process breach the legal
obligations they bear under their duties stated above (see case number 1978 (O) 1240,
Supreme Court, First Petty Bench judgment of 21 November 1985, Minshu Vol. 39, No.
7, p. 1512, and case numbers 2001 (Gyo-Tsu) 82 and 83 and 2001 (Gyo-Hi) 76 and 77,
Supreme Court, Grand Bench judgment of 14 September 2005, Minshu Vol. 59, No. 7, p.
47

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・Sections about the plaintiff have been omitted from this modified version of the complaint2087)." In this case, although it is clear that the provisions of the current law under which
it is not legally possible for people of the same sex to marry infringe upon the freedom ofmarriage of LGBT individuals and also violate the principle of equality of Article 14,
paragraph 1 of the Constitution, the Diet has neglected to take legislative measures legallyenabling marriage between people of the same sex for a long time and without justifiablereasons. Therefore, the legislative inaction in regard to legally enabling marriage between
people of the same sex is unlawful under the State Redress Act. The details are as follows.
2.

The unconstitutionality of the provisions is clear

As set out above, the provisions of the current law under which it is not legally possible
for people of the same sex to marry are unreasonable constraints on the freedom ofmarriage guaranteed under Article 24, paragraph 1 of the Constitution and on the equal
rights and principle of equality guaranteed under Article 14, paragraph 1 of theConstitution. In addition, in light of the facts stated below, it was clear to the Diet
considerably before September 2018 at the latest, when Petitioner Nakajima andPetitioner Christina married in Germany (the first of the petitioners who would havemarried if the above legislative measures were taken) (Petitioners' Evidence G2, 3), thatthe provisions of the current law violate Article 24, paragraph 1 and Article 14, paragraph
1 of the Constitution.
(1)

The awareness that it is not acceptable to restrict a person's rights andinterests or to discriminate against a person for being LGBT has been
established and has permeated societyi.

Establishment of scientific knowledge

As described in section V.3(2), in the past, psychiatry and psychology haveregarded homosexuality as a "sexual abnormality" and "psychiatric disease."
However, since the latter half of the last century, there has been a growing
movement in other countries to grant rights for LGBT individuals, andnumerous empirical and interdisciplinary studies have demonstrated thatthese past views are groundless, thereby establishing the knowledge thathomosexuality and bisexuality are not in any way diseases. In 1987, theAmerican Psychiatric Association, an international authority in psychiatry,removed all terms related to homosexuality from the section on psychiatricdisorders in its diagnostic manual, the DSM (Petitioners' Evidence A48,
Toshiaki Hirata, "Changes in the Handling of Homosexuality in Western
Psychiatry," Japanese Journal of Psychiatric Treatment, Vol. 31, No. 8, pp.
985-990; Petitioners' Evidence A28-1, 28-2, DSM-III-R). In the International
Classification of Diseases (ICD) published by the World Health Organization,
the 10th edition in 1992 stated that "sexual orientation by itself is not to be
regarded as a disorder", (Petitioners' Evidence A30-1, 30-2).

48

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Establishment of legal and ethical awarenessAs set out below, since the 1990s, the United Nations human rights treaty
bodies (committees, etc. for various human rights treaties) have referred tothe protection of sexual orientation in their interpretations of the various
treaties and have continued to issue international statements and resolutions
prohibiting discrimination based on sexual orientation and gender identity(Petitioners' Evidence A31, 33-1 to 34-2).
(i)(The International Covenant on Civil and Political Rights(ICCPR)

Article 171.

No one shall be subjected to arbitrary or unlawful interferencewith his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation.

2

Everyone has the right to the protection of the law against suchinterference or attacks.

This article sets out the right to be respected in private life and family life. In
1994, in Toonen v. Australia (CCPR/C/50/D/488/1992), a case regardingwhether the law that criminalized homosexual activity violated the ICCPR, it
was stated that sexual orientation is included in the right to be respected in
private life, and the law was found to violate the ICCPR (Petitioners'
Evidence A32-1, 32-2).
Article 23
1.

The family is the natural and fundamental group unit of society
and is entitled to protection by society and the State.

This article guarantees the right of the family to be respected as a fundamental
unit of society. General Comment No. 28 (general comments provide theformal interpretation of the relevant treaty body regarding the meaning andfunction of particular covenant clauses and the measures required for theirimplementation) states that "it is important to accept the concept of thevarious forms of family."
The Committee on the Elimination ofDiscrimination against Women also referred to the protection of same-sex
relationships in General Recommendation No. 29.
Therefore, it can be said that respecting same-sex relationships as families isrequired by Articles 17 and 23 of the ICCPR.

49

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Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, thelaw shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any groundsuch as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
This article provides for equality before law, and the Human Rights
Committee clearly stated in Toonen v. Australia (CCPR/C/50/D/488/1992)
that "sex" in this article includes sexual orientation. Similarly, in 2003, in
Young v. Australia (CCPR/C/78/D/941/2000), in which the unlawfulness of
not paying same-sex couples survivors' pensions that were granted toheterosexual couples was contested, it was concluded that the refusal to pay
survivors' pensions to the complainants on the basis of sex or sexual
orientation was contrary to equality under the law as provided for in Article
26 of the ICCPR on the grounds that "sex" in this article includes sexual
orientation (Petitioners' Evidence A49).
(ii)

International Covenant on Economic, Social and Cultural Rights(ICESCR)

Article 2, paragraph 2
Each party to the present Covenant undertakes to guarantee that therights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth orother status.
This article provides for economic, social and cultural non-discrimination. It
is clearly stated in General Comments No. 14, paragraph 18, No. 15,
paragraph 13, No. 18, paragraph 12, No. 20, paragraph 32, and No. 22,
paragraph 9 that "other status" includes sexual orientation (Petitioners'
Evidence A50-1 to 50-5).
(iii) Statements and resolutions
In 2006, the Yogyakarta Principles on the application of international humanrights law in relation to sexual orientation and gender identity were adopted(Petitioners' Evidence A33-1, 33-2).
The principles set out the measures to be taken by state agencies, including
legislatures, to eradicate violence, abuse and discrimination against sexual50

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minorities and to ensure equality.
In June 2011, the UN Human Rights Council adopted the first resolution thatclearly focused on human rights violations based on sexual orientation andgender identity (Petitioners' Evidence A34-1, 34-2). This resolution affirms
the universality of human rights and expresses grave concerns about violent
acts and discrimination that people are suffering because of their sexual
orientation and gender identity (see section V.3(2)B herein).
(iv) Summary
As set out above, the awareness that it is not acceptable to restrict a person's
rights and interests or to discriminate against a person for being LGBT has
been established and has permeated society as an international legal andethical awareness, and as a result, it should be said that national governments
are also required to take measures to guarantee such rights.
iii.

Trends in Japan

Within Japan, the awareness that it is not acceptable to restrict a person's
rights and interests or to discriminate against a person for being LGBT hascome to be established and to permeate society.
(i)

Judicial precedents

Until now, there have not been many cases in Japan regarding the restrictionof rights and interests or discrimination against LGBT individuals that havedeveloped into court proceedings.
However, it is erroneous to think that the small number of such cases meant
it was difficult for the Diet to recognize the current state of affairs in which
LGBT individuals are having their rights and interests infringed upon and arebeing discriminated against. The reason why it is rare for such cases todevelop into court proceedings is not because there was no infringement ofrights and interests or discrimination against LGBT individuals, but because
it was difficult even to seek redress from the judiciary, as that infringement,
discrimination and prejudice occurs on a daily basis. Conversely, the small
number of cases that developed into court proceedings shows the depth of
discrimination against LGBT individuals in Japanese society.
In the first place, it is not acceptable for a person who exercises publicauthority to overlook serious violations of human rights simply due to there
being few court cases, as the Tokyo High Court firmly stated 22 years ago, in
1997, in its judgment of the Fuchu Youth Home case (Petitioners' Evidence
A51):
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・Sections about the plaintiff have been omitted from this modified version of the complaint"At the time of the relevant events in 1990, it can be thought that both
the general public and the administrative authorities were indifferent
to and had no accurate knowledge regarding homosexuality or
homosexuals.
However, setting aside the general public, theadministrative authorities, including the Tokyo Metropolitan Board of
Education, are required when performing their duties to make wellthought-out arrangements keeping in mind homosexuals as a minority
and to protect the rights and interests of homosexuals in a sufficientmanner. It is not acceptable to be indifferent or lacking in knowledge
as a person who is in charge of exercising public authority. This is not
acceptable at present, of course, nor was it acceptable in 1990"(Section III.1(10)).
Furthermore, in recent years, a series of lawsuits have been filed regarding
legal protection for same-sex couples, as detailed below. The filing of theselawsuits indicates that there is a growing awareness in Japan that it is not
acceptable to infringe on a person's rights and interests or to discriminate
against a person for being LGBT.
For example, in March 2017, a Taiwanese man who had been with his
Japanese same-sex partner for more than 20 years filed a lawsuit with theTokyo District Court to revoke the issuance of a deportation order due tooverstaying his visa, seeking special permission to stay in Japan (Petitioners'
Evidence A52, 53).
In April 2018, a lawsuit was filed with the Osaka District Court by a manfrom Osaka Prefecture who had been with his same-sex partner for more than
40 years seeking compensation of seven million yen from his partner's sister,alleging that she refused to allow him to attend the funeral of his partner as
his spouse (Petitioners' Evidence A54).
In July of the same year, a lawsuit was filed with the Nagoya District Court
by a man whose same-sex partner was killed, claiming that the decision of the
Aichi Prefectural Public Safety Commission not to pay survivors' benefits
under the national crime victims' benefits system because they were a samesex couple was illegal and seeking a revocation of the decision (Petitioners'
Evidence A55, 56).
(ii)

Administrative measures of the national government

Since the 2000s, the Japanese government has become conscious of theprotection of human rights of LGBT individuals, and various administrative
measures have gradually taken shape.
For example, during the United Nations Decade for Human Rights Education52

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Human Rights Awareness-Raising was enacted in 2000, and in March 2002,
the Basic Plan for Human Rights Education and Awareness-Raising based onthat act was approved by the cabinet. The Basic Plan stipulated that measuresthat contribute to the resolution of sexual orientation issues, such as
discrimination against homosexuals, would be considered (Petitioners'
Evidence A57, Chapter 4.2(12)).
Since 2002, the Ministry of Justice has also explicitly prohibited
discrimination on the grounds of sexual orientation in its "Matters to be
Emphasized for Human Rights Week" (from 2009, "Matters to be Emphasized
through Awareness-Raising Activities"), which were carried out inaccordance with the above act. The list of "Matters to be Emphasized throughAwareness-Raising Activities" for FY2018 includes the item, "to eliminate
prejudice and discrimination on the grounds of sexual orientation," and it
states that: "There is persistent prejudice against sexual orientation
minorities, such as homosexuals, and human rights issues have arisen invarious aspects of social life, such as people in some cases being forced out
of work. It is necessary to deepen our concern for and understanding of thisissue" (Petitioners' Evidence A58).
Furthermore, the Civil Liberties Bureau of the Ministry of Justice lists sexual
orientation among its main human rights issues and conducts awarenessraising activities in regard thereto, saying, "There are people who suffer frompersistent prejudice and discrimination against 'men liking men and womenliking women.' It is necessary to eliminate prejudice and discrimination on
the grounds of sexual orientation and deepen our understanding thereof"(Petitioners' Evidence A59).
(iii) Discussions and resolutions by the Diet
On July 6, 2018, the Act for Partial Amendment to the Civil Code and theDomestic Relations Case Procedure Act (Act No. 72 of 2018) was enacted(and promulgated on July 13, 2018). That act amended the part of the Civil
Code pertaining to inheritance law, and as part of the amendments, a special
contribution system was introduced as a measure to take into account thecontributions of persons other than heirs (Article 1050 of the amended Civil
Code), so that if a relative of the deceased other than the heirs provided
medical treatment or nursing care, etc. for the deceased without charge,
financial claims may be made to the heirs under certain conditions.
In its deliberations regarding the amendment, the Diet discussed the questionof whether or not the scope of persons regarding whom special contributions
would be recognized should be limited to relatives. From the standpoint that53

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the scope should not be limited to relatives, the protection of same-sex
partners was argued, and people were summoned to provide opinions forreference (Petitioners' Evidence A60 to 62). Ultimately, the scope waslimited to relatives, but the supplementary resolution stated that "efforts
should be made to establish a system enabling persons in various positions,
including sexual minorities, to consult in advance about the content of a will,
and to spread knowledge among the public regarding the legal systempertaining to wills so that, through active use of wills, inherited property canbe distributed in a way that respects the wishes of the deceased," clearlystating the necessity of protecting the rights of LGBT individuals (Petitioners'
Evidence A63 to 65).
(iv) Efforts by local governments
At the local government level, the Tokyo Metropolitan Government's"Guidelines for Promotion of Human Rights Measures" (2000) included"various issues concerning homosexuals" as human rights issues (Petitioners'
Evidence A66, p. 8), and other ordinances, plans, and guidelines referring tosexual minorities, sexual orientation, gender identity, and the like have beencreated by various local governments (Petitioners' Evidence A67, p. 23).
Local governments are making progress ahead of the national government inenacting ordinances in accordance with the idea of sexual diversity. Not only
ordinances that prohibit discrimination in general but also ordinances andprotocols focusing on guaranteeing the rights of same-sex couples are
increasingly being established.
aOrdinances, etc. that stipulate respect for diverse sexual
orientation and prohibit discrimination

Various ordinances stipulating respect for sexual orientation and prohibiting
discrimination have been enacted, including among others the "Basic
Ordinance for Gender Equality" of Koganei City, Tokyo (which took effectin 2003) (Petitioners' Evidence A68), the "Ordinance for the Promotion of
Equal Gender Participation" of Sennan City, Osaka Prefecture (which tookeffect in 2012) (Petitioners' Evidence A69), the "Ordinance for the Promotionof Equal Gender Participation" of Bunkyo Ward, Tokyo (which took effectin 2013) (Petitioners' Evidence A70), the "Tama City Ordinance for the
Promotion of Equal Participation of Women and Men" of Tama City, Tokyo(which took effect in 2014) (Petitioners' Evidence A71), the "Ordinance for
the Promotion of Gender Equality" of Musashino City, Tokyo (which tookeffect in 2017) (Petitioners' Evidence A72), the "Kunitachi City Ordinancefor the Promotion of Equal Participation of Women, Men, and Diverse
Sexualities" of Kunitachi City, Tokyo (which took effect in 2018) (Petitioners'
Evidence A73), and the "Tokyo Ordinance for Achieving the Principle of54【Please share the link to this complaint freely】【Please do not reproduce for profit nor distribute on websites including but not limited to personal webpages,
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Respect for Human Rights under the Olympic Charter" of Tokyo (which tookeffect in 2018) (Petitioners' Evidence A74).
b

Guaranteeing the rights of same-sex couples

Since 2015, local governments have been introducing a series of so-called
partnership systems (Petitioners' Evidence A67, pp. 64-82).
In Shibuya Ward, a partnership certification system was launched in
November 2015 (Petitioners' Evidence A76) based on the "Shibuya Ward
Ordinance for Promoting a Society that Respects Gender Equality andDiversity" (Petitioners' Evidence A75) enacted in March of that year. Also in
November 2015, a same-sex partnership oath system was launched in
Setagaya Ward (Petitioners' Evidence A67, p. 126; Petitioners' Evidence
A77). It is of great significance that governmental administrations recognized
the existence of same-sex couples and certified their relationships.
As of the 31st of January 2019, the partnership system has been establishedin Iga City, Mie Prefecture (since April 2016) (Petitioners' Evidence A67, p.
129; Petitioners' Evidence A78), Takarazuka City, Hyogo Prefecture (sinceJune 2016) (Petitioners' Evidence A67, pp. 127-128; Petitioners' Evidence
A79), Naha City, Okinawa Prefecture (since July 2016) (Petitioners' Evidence
A67, pp. 130-131; Petitioners' Evidence A80), Sapporo City, Hokkaido (sinceJune 2017) (Petitioners' Evidence A67, pp. 132-133; Petitioners' Evidence
A81), Fukuoka City (since April 2018) (Petitioners' Evidence A82, 83),
Osaka City (since July 2018) (Petitioners' Evidence A84, 85), Nakano Ward,
Tokyo (since August 2018) (Petitioners' Evidence A86, 87), Oizumi-cho,Gunma Prefecture (since January 2019) (Petitioners' Evidence A88, 89), andChiba City (since January 2019) (Petitioners' Evidence A90, 91). The
population of these 11 municipalities is about 9.4 million people.
Municipalities planning to introduce the partnership system in the future
include Saitama City, Toshima Ward in Tokyo, Sakai City in Osaka
Prefecture, Fuchu City in Tokyo, Kumamoto City, Nagasaki City, Yokosuka
City in Kanagawa Prefecture, and Hirakata City in Osaka Prefecture. The
total population of the municipalities that have already introduced thepartnership system and those stated above that are planning to introduce it in
the next fiscal year and beyond is approximately 13.6 million people, which
accounts for more than 10% of the total population of Japan.
In July 2018, the Designated City Mayors Association consisting of themayors of all 20 designated cities nationwide unanimously adopted the"Request of the Designated City Mayors Association for Unification of Pointsof Contact and Strengthening of the Partnership System for Sexual55

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Minorities" addressed to the national government, which stated among otherthings that "the national government needs to provide support to promote
efforts by local governments and to promote the understanding of sexual
minorities, including through the partnership system," and submitted therequest to the Cabinet Office (Petitioners' Evidence A92, 93).
(v)

Efforts by the private sector

Private organizations and private companies are also making progress inefforts that give consideration to diverse sexuality. On 16 May 2017, theJapan Business Federation (Keidanren) announced its recommendation titled"Towards the Realization of a Diverse and Inclusive Society" and appealed toits members regarding the necessity of promoting the understanding of andprohibiting discrimination against sexual minorities, including LGBT
individuals, in addition to which it published the results of its "Survey on
Corporate Efforts on LGBT Issues" conducted between March 1st and 31st of
the same year (survey subjects: 1,385 Keidanren member companies and 156
member organizations) (Petitioners' Evidence A94, p. 15 and below). Morethan 90% of companies responded that companies need to make efforts on
sexual minority issues. In addition, 42.1% of companies were alreadyundertaking some kind of measures regarding sexual minorities, and 34.3%
were considering such measures, which is significantly higher than the 23.2%
of companies that did not plan to undertake such measures. According to theresults of the above survey, out of 93 companies that responded that they hadtaken specific measures for sexual minorities, 22 companies responded thatthey applied or were considering applying the personnel systems (or parts ofthem, such as marriage leave, bereavement leave, etc.) applicable to spouses
to same sex partners, and nine companies responded that they had started orplanned to start offering products and services that give consideration tosame-sex partners (such as by making it possible to designate same-sex
partners as the recipients of life insurance benefits).
iv.

Recommendations, etc. for improvement from the international
community to JapanAs set out above, efforts to eliminate restrictions on the rights and interestsof, and discrimination against, people for being LGBT are progressing inJapan, but specific measures at the national level have lagged behind. In
particular, the protection of the rights of same-sex couples remains
unaddressed. For this reason, the national government has received repeatedrecommendations from the United Nations.
Following its consideration of the fifth periodic report of Japan regarding the
ICCPR, the concluding observations of the Human Rights Committee (dated56

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October 30, 2008) stated, among the principal subjects of concern andrecommendations:"29. The Committee is concerned about discrimination against lesbian,gay, bisexual and transgender persons in employment, housing, social
security, health care, education and other fields regulated by law, as
exemplified by Article 23 (1) of the Public Housing Law which applies
only to married and unmarried opposite-sex couples and effectively
bars unmarried same-sex couples from renting public housing, and by
the exclusion of same-sex partners from the protection under the Law
for the Prevention of Spousal Violence and the Protection of Victims.
(arts. 2 (1) and 26) The State party should consider amending its
legislation, with a view to including sexual orientation among theprohibited grounds of discrimination, and ensure that benefits granted
to unmarried cohabiting opposite-sex couples are equally granted tounmarried cohabiting same-sex couples, in line with the Committee'sinterpretation of article 26 of the Covenant. (See Young v. Australia,
Communication No. 901/1999 and X v. Colombia, Communication No.
1361/2005)" (Petitioners' Evidence A95-1, 95-2 (translation), p. 9).
Additionally, following its consideration of the sixth periodic report of Japan
regarding the ICCPR, the concluding observations of the Human Rights
Committee (dated August 20, 2014) stated, among the principal subjects ofconcern and recommendations:"11. The Committee is concerned about reports of social harassment
and stigmatization of lesbian, gay, bisexual and transgender persons
and discriminatory provisions that exclude same-sex couples from themunicipally operated housing system (arts. 2 and 26). The State party
should adopt comprehensive anti-discrimination legislation thatprohibits discrimination on all grounds, including sexual orientationand gender identity, and provides victims of discrimination witheffective and appropriate remedies. The State party should intensify its
awareness-raising activities to combat stereotypes and prejudiceagainst lesbian, gay, bisexual and transgender persons; investigate
allegations of harassment against lesbian, gay, bisexual andtransgender persons; and take appropriate measures to prevent suchstereotypes, prejudice and harassment. It should also remove theremaining restrictions in terms of eligibility criteria applied to samesex couples with respect to publicly operated housing services at themunicipal level." (Petitioners' Evidence A96-1, 96-2 (translation), p. 4)
Furthermore, following its consideration of the third periodic report of Japan
regarding the ICESCR, the concluding observations of the Committee on57

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Economic, Social and Cultural Rights (dated May 17, 2013) stated, among
the principal subjects of concern and recommendations:"10. The Committee notes with concern that provisions which are
discriminatory towards women, children born out of wedlock and samesex couples continue to exist in the State party's legislation insofar as
Covenant rights are concerned, in spite of the State party's efforts toensure compliance with its obligations under the Covenant when
undertaking legislative revisions (art. 2(2)). The Committee urges theState party to review in a comprehensive manner and, where necessary,amend its laws to ensure that they do not directly or indirectly
discriminate in relation to the exercise and enjoyment of the Covenant
rights." (Petitioners' Evidence A97-1, 97-2 (translation), p. 2)
These recommendations also demonstrate that the national government wasaware of the necessity for specific measures to guarantee the rights of samesex couples.
v.

Conclusion

As set out above, the awareness that it is not acceptable to restrict a person's
rights and interests or to discriminate against a person for being LGBT has
been established and has permeated certainly the international community,
centering around the United Nations, as well as Japanese society.
(2)Worldwide, the trend is to make legislative changes allowing same sex
couples to marry.
i.

Many foreign states are now recognizing marriage for same-sex
couples in the same way they recognize marriage for opposite-sex
couplesGlobally, the worldwide trend is to guarantee the rights of same-sex couples
by recognizing marriage for same-sex couples in the same way marriage foropposite-sex couples is recognized. Between April 2001 and January 2019,the following countries made it possible for same-sex couples to marry: theNetherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden,
Portugal, Iceland, Argentina, Denmark, Uruguay, New Zealand, France,
Brazil, Great Britain (England, Scotland and Wales), Luxembourg, Finland,
Ireland, United States of America, Colombia, Malta, Germany, Austria andAustralia (Petitioner A Exhibit 98, pp. 66 and 68). Countries that recognize
same-sex marriage are becoming more common, particularly in Europe.
Japan is an observer state of the Council of Europe, the pan-European
international organization, and as an international leader in setting standards
in the areas of human rights, democracy, and rule of law; as such, Japan58

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ii.

In many countries, the judicial branch has determined that theconstitution requires the legislature to take measures to recognize
marriage between same sex persons.

Different states have taken different paths in introducing same-sex marriage,
but the United States and Taiwan are examples of jurisdictions where theissue was heavily litigated, and the judiciary played a large role in its
implementation.
(i)

US Supreme Court Decision of 26 June 2015 (Petitioner A
Exhibits 99, 100: Doseikon Jinkenkyuusai Bengodan [Same Sex
Marriage Human Rights Aid Attorney Group], "Doseikon
Daremoga Jiyuuni Kekkonsuru Kenri [Same Sex Marriage: Right
for Anyone to Marry Freely]" (Akashi Shoin, 2016), pp. 219 to256).

On 26 June 2013, the US Supreme Court found Section 3 of the Defense of
Marriage Act ("DOMA"), which limited the definition of marriage and spouseunder federal law to relationships between a man and a woman, violated theright to equal protection under the law and was thus unconstitutional. This
resulted in the legal recognition of same-sex marriages under federal law.
However, on the same day, a case on the constitutionality of a California law
limiting marriage to between a man and a woman was dismissed by the US
Supreme Court without substantive discussion. The Supreme Court thereby
declined to determine whether provisions of state law prohibiting marriage
between persons legally of the same sex determination violated theConstitution. As a result, lawsuits throughout the United States regarding
state constitutions and state laws which prohibited marriage between personsof the same sex continued (Petitioner A Exhibit 100: pp. 214 to 218).
In one case, plaintiffs from Michigan, Kentucky, Ohio, and Tennessee, eachof which had state laws prohibiting same-sex marriage, sued to have marriage
between persons of the same sex recognized on the grounds that each
respective state's laws banning same-sex marriage were unconstitutional. On
the 26th of June 2015, the US Supreme Court decided that state laws banningsame-sex marriage were unconstitutional. As a result, same-sex marriage waslegalized throughout the United States (Petitioner A Exhibit 100: p. 218).
In its opinion, the US Supreme Court recognized that same-sex couples havethe same right to marry as opposite-sex couples, finding that (i) the right toindividual autonomy of marriage is inherent in the concept of individualautonomy, (ii) the right to marry is fundamental, (iii) recognizing the right to59

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marry between persons legally of the same sex safeguards children of samesex couples, and (iv) marriage is a keystone of the nation's social order.
(ii)

24 May 2017 decision of the Justices of the Constitutional Courtof Taiwan (J.Y. Interpretation No. 748) (Petitioner A Exhibits
101-1, 101-2 (translation)).

Chia-Wei Chi, a gay Taiwanese man, filed a petition regarding theconstitutionality of the Taiwanese Civil Code provisions regarding marriage
with the Taipei City Government and the Justices of the Constitutional Court,
who have the power to decide Constitutional issues in the abstract. The
petition sought the Justices' interpretation on whether a provision of the Civil
Code that denied same-sex marriage violated Article 22 of the Constitution,
which guarantees freedom of marriage, and Article 7 of the Constitution,
which guarantees equality.
The Justices of the Constitutional Court noted, "Persons without a spouseeligible to marry shall have their freedom to marry, which includes the
freedom to decide 'whether to marry' and 'whom to marry'… Such decisional
autonomy is vital to the sound development of personality and safeguardingof human dignity, and therefore is a fundamental right to be protected by
Article 22 of the Constitution. Creation of a permanent union… for thecommitted purpose of managing a life together by two persons of the samesex will not... alter the social order established upon the existing opposite-sex
marriage. Furthermore, [it will] constitute the… basis, together with
opposite-sex marriage, for a stable society." The Justices also noted, "Theneed, capability, willingness and longing, in both physical and psychologicalsenses, for creating such permanent unions of intimate and exclusive natureare equally essential to homosexuals and heterosexuals, given the importanceof the freedom of marriage to the sound development of personality andsafeguarding of human dignity. Both types of union shall be protected by the
freedom of marriage under Article 22 of the Constitution." The Justices
concluded that the discriminatory treatment was not based on reasonablegrounds and that it violated the principle of equality.
The Justices of the Constitutional Court also ordered the legislature to enact
laws in accordance with the ruling of the court decision within two years, andstipulated that even if appropriate legislation were not passed within theprescribed period same-sex couples would be able to register their marriage
under the current Civil Code.
(3)

Increased demand to recognize same-sex marriage in Japan

Today, an increasing number of people are demanding the right to same-sex

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・This complaint is submitted to the Tokyo District Court
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marriage.
i.

Petition Seeking Human Rights Relief filed with the Japan
Federation of Bar Associations.

On the 7th of July 2015, a petition was filed with the Japan Federation of Bar
Associations on the ground that "it is a human rights violation not to havemarriage between persons legally of the same sex recognized by law." As of
the 15th of January 2019, there were 453 petitioners (from 41 prefectures).
Petitioners all either seek, or may seek, to marry a partner of the same sex.
17,284 signatures were collected in support of said petition (as of 7 July 2018)(Petitioner A Exhibit 102).
The written statements submitted by these petitioners are filled with theirheartfelt desire to be able to marry their same-sex partners. A glimpse of theiremotions can be seen from part of the written statements included in"Doseikon Daremoga Jiyuuni Kekkonsuru Kenri [Same Sex Marriage: Right
for Anyone to Marry Freely]" (Petitioner A Exhibit 100).
(i)

A desire for societal recognition・"Of course it is important that we will get security, but I think thebiggest factor is the emotional stability that comes from being
recognized by society. I look forward to a society where I can tellpeople that I am married to her without being self-conscious"(ibid. p. 51).

・

"From an existence not recognized to an existence that isrecognized both legally and socially" (ibid. p. 40).

・

"If same-sex marriage is recognized, it will strengthen our efforts
to build a life together. While we are now living together, in fact
we are just two persons living under the same roof. If we can get
married, I think the two of us will be treated as being one insociety" (ibid. p. 48).

・"[If same-sex marriage is established] I can express my gratitude
to family members, relatives, friends to whom I have alreadycome out and who have been supportive of us, and give / receive
blessings of having become a full-fledged citizen [of Japan]" (ibid.
p. 49).

・"I hope that when the laws are put in place and same-sex
marriage becomes official, homosexuals living in rural areas findit easier to come out of the closet" (ibid. p. 50).
61

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・This complaint is submitted to the Tokyo District Court
・Sections about the plaintiff have been omitted from this modified version of the complaint(ii)

A desire for marriage and family

・"If same-sex marriage becomes a norm in Japan, I think we canfeel that we can have a family and have children" (ibid. p. 28).

・

"I want to marry her. Some say that we can get legal benefits asa family if one of us adopts the other, but I do not want a parentchild relationship with her" (ibid. p. 138).

(iii) A desire to live just like opposite-sex couples.
・"There is only one thing I wish for: to be at the same starting line
as opposite-sex couples. I want to have more options in life. If
things do not change, I am so afraid of the future. I want to wear
a wedding gown, and be blessed by everyone in my family and allof my relatives, friends and co-workers. I want to be able to takefor granted things that heterosexuals have always taken for
granted" (ibid. p. 52).

・"All I wish for is to live just like a heterosexual person. I'm notasking for anything more or anything special. I want to live asafe and happy life with the person I love. That is all" (ibid. p.
52).

(iv) A resolution to logistical issues.

ii.

・"The two of us bought a used house to live out our days there, but
the title is in X's name. If something happens to X, like anunforeseeable accident, I want X's partner Y to inherit the entire
house. For this reason, I seek same-sex marriage" (ibid. p. 101).

・"My current partner is a foreign national and in Japan wheresame-sex marriage is not recognized, my partner needs to obtaina student or working visa to obtain resident status. The only way
we can now live together in Japan is to get a resident status otherthan through marriage, which is a great inconvenience" (ibid. p.
125).

Various surveys(a) In an October 2015 survey on sexual minorities conducted by
NHK in cooperation with the Japan Alliance for Legislation to
Remove Social Barriers based on Sexual Orientation and Gender
Identity (covering all 47 prefectures of Japan, with 2,600
responses), 65.4% responded that they "want laws that recognize
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marriage for same-sex couples" (of a total of 2,397 persons who
responded to this question) (Petitioner A Exhibit 103, 15/17).
(b) In another survey conducted that same year, the "Awareness on
Sexual Minority – Report of the 2015 Nationwide Survey" (Saori
Kamano, Hitoshi Ishida, Takashi Kazama, Takashi Yoshinaka,
Kazuya Kawaguchi) 2016 'Awareness on Sexual Minority – Reportof the 2015 Nationwide Survey' Grants-in-Aid for Scientific
Research "Construction of Queer Studies in Japan" ResearchGroup (Principal Investigator: Kazuya Kawaguchi, Hiroshima
Shudo University) ed.), (Covering all 47 prefectures, with 2,600
participants aged 20 to 79), 55.3% responded that they were infavor of, or slightly favorable to, same-sex marriage. In comparison,
only 44.7% answered that they were either against or slightly
against same-sex marriage (Petitioner A Exhibit 104-2, p. 152). In
the aforementioned survey, 72.3% of respondents in their twenties
and thirties were in favor of same-sex marriage, suggesting thatamong the younger generation same-sex marriage seems like anatural way to protect of rights of same-sex couples (Petitioner A
Exhibit 104-2, Fig. 10-9 on p. 155).
Other surveys also corroborated the finding that a majority ofpeople support same-sex marriage, although with narrower margins.
In March 2015, in a public opinion poll conducted by the Mainichi
Shimbun, 44% responded they were in favor of "same-sex
marriage" while 39% were against (Petitioner A Exhibit 105). In
a March 2017 NHK public opinion poll, 51% responded "yes" tothe question, "Should marriage between two men, or two women,be recognized?" (Petitioner A Exhibit 106, Q. 24B on p. 6;
Petitioner A Exhibit 107). In a May 2017 Asahi Shimbun public
opinion poll, 49% responded that "same-sex marriage should berecognized" while 39% responded that "it should not berecognized" (Petitioner A Exhibits 108 and 109). Furthermore, in
an October 2018 survey conducted by Dentsu Inc., 78.4% of those
who responded said that they were "for" or "slightly more for"legally recognizing same-sex marriage, a strong majority comparedto the 21.6% of respondents who said that they were "slight moreagainst" or "against" the legal recognition of same-sex marriage(Petitioner A Exhibit 110).
(c) During the lead up to the 48th general election for the House ofRepresentatives (voting was held on 22 October 2017), the officeof Professor Masaki Taniguchi of the University of Tokyo
conducted a joint survey with the Asahi Shimbun of the electoral63【Please share the link to this complaint freely】【Please do not reproduce for profit nor distribute on websites including but not limited to personal webpages,
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candidates. This survey, which had a 97% response rate, asked
respondents whether they believed "Marriage should berecognized between two men or two women" (Petitioner A Exhibit111). The fact that a leading newspaper would conduct a study of
the attitudes of members of the House of Representatives on theissue of same-sex marriage demonstrates how important this policy
issue is.
iii.

Recommendations and Proposals

The 33rd Symposium held by the Japan Society for Socio-Legal Studies on
Family Issues in 2016, proposed establishing a new provision stating that "twopersons of opposite or same sexes may marry."In September 2017, noting that "it is impermissible to restrict a person's rightto marry unless there are strong state and / or social interests that deny
individual interests," the Science Council of Japan recommended that "it isimperative to make marriage gender-neutral, and in order to do so, the Civil
Code needs to be amended."(Petitioner A Exhibit 114: "Teigen
seitekimainoriti no kenrihosho wo mezashite – kon'in / kyoiku / roudo wo
chuushin ni [Recommendations for Guaranteeing the Rights of Sexual
Minorities -- Marriage, Education and Labor]", pp. ii, 8 to 11). The Science
Council of Japan "represents Japan's scientists both domestically andinternationally," and is authorized to provide policy recommendations to thegovernment (Articles 2 and 5 of the Charter of the Science Council of Japan).
As such, its recommendation carries considerable weight.
In 2018, the American Chamber of Commerce in Japan (ACCJ) also
recommended that the Japanese government extend the right to marry tosame-sex couples (Petitioner A Exhibit 112, p. 2 "Recommendation").
In the same year, the Hokkaido Federation of Bar Associations passed a"Resolution Seeking Equality in the System of Marriage to Legally Guarantee
the Relationship of Same-Sex Couples as a Family" on the ground thatrecognizing opposite-sex marriage but not recognizing same-sex marriage
violates the human rights of same-sex couples wishing to get married(Petitioner A Exhibit 113).
As seen from the above, it has long been known that that there is a need forlaws and a legal structure that include sexual minorities in Japanese society.
Clear proposals and recommendations have already been made to codify
marriage between persons legally of the same sex.

64

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Sub-conclusion

The National Diet was aware before September 2018, when Petitioner Nakajima
and Petitioner Christina got married in Germany (Petitioner Exhibit G2, 3), that theprovisions of the current law which do not recognize marriage between persons of
the same sex violates Articles 24(1) and 14(1) of the Constitution. There is now anestablished and growing awareness in the international and Japanese society that
violating an individual's rights, or discriminating against a person, based upon thefact that an individual is LGBT is wrong. Globally, there has been a trend towards
enacting legislation that recognizes same-sex marriage in order to protect the rights
of LGBT persons. Furthermore, an increasing number of people are seeking samesex marriage in Japan. For all of these reasons, the National Diet was on notice thatthe current laws do not protect LGBT citizens' rights, and are unconstitutional.
3.

The National Diet has neglected to make legislative changes for an extensive
period of time without justification.

In addition to the circumstances set forth above, the implementation of the legislative
measures necessary to recognize marriage between same-sex couples is neither expensive
nor time consuming. Thus, the National Diet had little justification for its failure to makethe necessary legislative changes by September 2018, when Petitioner Nakajima andPetitioner Christina got married in Germany.
4.

Conclusion

For all of the reasons above, the current provisions governing marriage violate Articles
24(1) and 14(1) of the Constitution, and that the National Diet has failed, without
justification, to take legislative measures to rectify this violation.
Therefore, Respondent is liable for damages under Article 1 of the State Redress Act forlegislative inaction, i.e., the failure to enact legislation recognizing marriage between a
two people of the same sex.

VIII

Occurrence of damage

Respondent's legislative inaction, i.e., the failure to enact legislation recognizing same-sex
marriage, has infringed upon Petitioners' constitutionally guaranteed freedom of marriage, andas a result has denied Petitioners the emotional / social benefits, legal and economic rights /interests, and actual benefits that are concomitant to the social recognition conferred bymarriage. Petitioners have also suffered, and continue to suffer, serious harm from the stigma
attached to them for being in a "relationship not approved by society" and as a result of all of
the above, have suffered significant emotional distress.

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If their emotional distress were given a monetary value, it would be no less than one (1) million
yen for each Petitioner.

IX

Conclusion

Therefore, based on Article 1(1) of the State Redress Act, Petitioners seek payment from
Respondent in the amount of one (1) million yen to each Petitioner, with interest accrued
thereon at the rate of 5% per annum as set forth in the Civil Code, from the date of service of
this Complaint until the date the amount is fully paid.

- End -

Evidence
As set forth in the Description of Evidence.
Annexes1

Duplicate of the Complaint

One copy

2

Copy of Petitioner Exhibits

Two copies each3

Description of Evidence

Two copies each

4

Letter of attorney in litigation

Twelve copies

5

Letter of attorney (sub-attorney)

Two copies

66