Journal of Asian Women’s Studies Vol.24

Can human rights of a sexual minority in Japan be Guaranteed?
A Comparison with efforts of Taiwan, Province of China, for
Gender Equality
Kyoko HIKITA＊

Preface
On May 24 , 2017 , the top court in Taiwan, Province of China ruled that current laws preventing
same sex couples from marrying violated their right to equality and were unconstitutional . It thengave a period of two years for laws to be amended . 1 Thus , “Taiwan, Province of China is closer tobecoming the first place in Asia to allow same-sex marriage.2”
Until this constitutional judgment was made , there has been accumulation of social and legal
arguments. One special result of that was the Gender Equality Education Act enacted in 2004. Thisact, which required schools to teach gender equality and diversity , was epoch -making . 3 Many
young people came to recognize gender equality as natural (Tamura 2017).
It is said that the historical development of human rights protection of European sexual
minorities has three stages in common . They are: 1) Stage I-the establishment of a foundation ofhuman rights by eliminating criminal laws , such as the sodomy law which punishes sexual contact
between same -sex couples ; 2) Stage II-legal protection of sexual diversity by prohibiting
discrimination on the grounds of sexual orientation and gender identity and 3) Stage III- approvalof sexual diversity, review of the legal system concerning marriage and family, and reconstruction
the legal system (Taniguchi 2016 ). According to these development stages , Japan is similar to
Taiwan , Province of China in that there is no law that imposes criminal penalties on homosexualacts in Stage I.
In the last 30 years , Taiwan , Province of China has experienced dynamic development from
Step II to Step III in response to the international trend of gender equality including gender
diversity . On the other hand , in Japan , conservatives have emphasized the "masculinity femininity" duality and the traditional value of families since the latter half of the 1990s. Japan still
has not reached Stage II. And the current legal situation is that there are neither laws nor judicial
precedents giving any legal guarantee to a homosexual partnership.
Even in Japan, the transgender was given the legal status of "gender identity disorder ." It thenbecame possible to change the legal gender status under certain conditions . However , the various
sexual minorities who are not under protection of the law are still isolated while experiencing
difficulty . This legal shift aimed not to confuse the existing heterosexual love order.

* Associate Professor, Kagoshima Prefectural College, KFAW Visiting Researcher (2016) 1

Journal of Asian Women’s Studies Vol.24

Despite such difficulties facing various sexual minorities, in recent years movement aimed ateliminating discrimination and protecting rights became visible at the local government level
which is closest to the lives of the citizens.

Particularly, Tokyo’s Shibuya Ward began issuingpartnership certificates to same-sex couples in 2015, which was brought to public attention by
the media . This in turn accelerated actions by other municipalities . In Taiwan , Province ofChina , same -sex marriage was legalized for the first time in Asia. Alternatively in Japan ,elimination of discrimination against sexual minorities and the protection of their rights remain
at the stage of voluntary efforts by local governments . What are the factors that caused thisdifference ?

In response to this question , this paper examines factors that impede the legal

status of diversified sexual minorities located in Japan compared to the situation in Taiwan ,Province of China.
１． Homosexual identity and legal status as a "minority"
In Japan and Taiwan, Province of China, there is no law to criminalize homosexuality unlike
the sodomy law in Western Europe , and both countries are told that homosexuals

ashomosexuals are not at the stage of establishing a human rights foundation . However , inTaiwan , Province of China , the Kuomintang regime , which lost the Civil War in 1949 andrelocated to Taiwan, Province of China, was subjected to an extremely strong authoritarian rule
until the mid-1970s. During that regime , Confucian ethics and the distinction between publicdomain and private domain were regarded as national policy , and sexual minorities were
under the severe control of the police as "sexually immoral persons". Therefore , reformists
aiming for democratization urged for the respect of a wide range of minorities including gays
and lesbians ’ human rights . The reformists supported the citizenship movement of sexual
minorities after the 90's (Tamura 2017).
（１）The establishment of modern gender bias and homophobia
On the other hand, in postwar Japan, under the Constitution of Japan which emphasizes
freedom of expression, democratization advanced with an economic priority.

At the same time,

there was no crackdown on discourse and publication on homosexuality. And in the 1950s,
gay magazines were launched one after another. The topic of gay boys who work in theentertainment world was taken up in the media.

And around the mid-1960's, gay bars etc.

lined up in Tokyo’s Shinjuku 2-chome district-a red light area since a long time ago. It became
prosperous enough to be called Asia's largest gay town.
However, homosexuality is limited to a subcultural space. And its representation is also
metaphorically "a flowerless plant" (Ishida 2014).4 Homosexuality is positioned as "sexual
perversion" that violates "a healthy society." This is because the marriage system is bound by2

Journal of Asian Women’s Studies Vol.24

the law (established after World War II) which stipulates that only "Sexual love of married men
and women / reproduction" is protected as legitimate. Article 24 of the Constitution of Japan
provided "individual dignity and essential equality of the sexes" as a principle of the law basedon the family and gender equality. This progressive article denies both fathers’ and husband's
rights. Based on this principle, the Civil Code was also revised greatly. However, families
popularized after the war were composed of a couple defined as "men with long working hours+ women with housekeeping and part-time work."

And the relationship between married

couple incorporated in employment system premised on gender-based division of labor was notbased on equal sexuality in which individuals are respected.
The divorce request from the accused spouse who committed infidelity was not recognized
for a long time.

And the provision of discrimination against legitimate inheritance ofillegitimate child was justified as protection of the married family.

In 1987, the Supreme Court

ruled that the divorce request from the accused spouse was accepted under certain conditions.
And in 2013, the Supreme Court ruled that the discrimination against the legitimate inheritanceof an illegitimate child was unconstitutional. An accusation was leveled against a civil codeprovision that married couples must have the same surname. The reason was that the code
violates the Treaty on the Elimination of All Forms of Discrimination against Women.
However, on December 16, 2015, the Supreme Court said the law did not violate theconstitution (Omi 2017).
On the other hand, for a divorce request from the wife on the grounds that her husband ishomosexual, there is the precedent of a court recognizing divorce and the payment of a large
amount of consolation money to the wife. The serious reason for this is that homosexuality
makes it

hard to continue the marriage with a "sexually abnormal character” (February 29,

1972 Nagoya District Court judgment).

Also in guidance given at schools, homosexuality wasconsidered as a "sexual anomaly/perversion delinquency" which threatens healthy heterosexuallove.

In the "Elementary Materials on Student's Problem Behavior - Junior High School / HighSchool Edition -" (January 1979) issued by the Ministry of Education (then), the Ministry of
Education warned about the international propagation of the gay movement as follows,"There are also movements to "acquire gay citizenship" in the United States and elsewhere,
which in general state, that homosexuality may inhibit the development of healthy heterosexual
love, contrary to sound social morality.

It may be an act to disturb the sexual order and is notendorsed even in modern society."
In 1993, this description concerning homosexuality was recognized as "inappropriate" by the
Ministry of Education. And discriminatory treatment of homosexuality by national andadministrative officials concerning AIDS control was finally discussed as a human rights issue.
（２）Visualization of homophobia and the occurrence of gay activism
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Journal of Asian Women’s Studies Vol.24

Japan's AIDS panic is said to have been created by the Ministry of Health and Welfare byusing of society’s prejudice which links homosexuals to abnormal sex5. The first AIDS patient
confirmed in Japan was reported as a Japanese homosexual male living in the United States(March 22, 1985). In fact, two years ago, it was confirmed by "A Research Group on the
Actual Situation of AIDS" that a hemophiliac had a HIV infection by polluted non-heatedpharmaceuticals.

However, this was not made public until the homosexual's infection was

confirmed and hemophilia patients infected with AIDS were left untreated. The so-called AIDS
prevention law (Act on Prevention of Acquired Immune Deficiency Syndrome) under whichmale homosexuals and sex workers were placed with "the group that poses danger to society,"
was enforced in February of 1989.
However, visualization of blatant discrimination against homosexuality and homophobia also
caused homosexuals to confirm their identities as homosexuals and encouraged gay activism inJapan. As a self-help group of homosexuals, "The Japan Association for the Lesbian & Gay
Movement (so-called OCCUR)"6 was established in March 1986. It aims for peer support,
prevention enlightenment support and systematic care for HIV infected persons and AIDS
patients.
When overseas shocking human rights violations caused by the AIDS panic was reported in
the Japanese media, they started to pay more attention to discrimination and the prejudiceagainst the domestically HIV infected person.

And the AIDS panic began to cool down.

In

1999, the AIDS Prevention Law was abolished and the "Infectious Disease Prevention Law (Acton the Prevention of Infectious Diseases and Medical Treatment for Patients with Infectious
Diseases)" was enforced.

And the point of view that a male homosexual and a sexualindustrial practitioner are exposed to risk and require support (individual policy layer) was
emphasized.
（３）Homosexual as the minority that should be considered
From 1991-1997, OCCUR, as a base for AIDS activism, went to trial about thediscriminatory treatment of homosexuals by a public authority as a human rights issue. The trial
involved OCCUR members who were harassed by other guests with discriminatory words suchas "homo" or "okama" when OCCUR carried out a training camp at the Tokyo Fuchu Youthfacilities. So, when OCCUR asked for discussions with a group of other guests at that time,
the facility manager's response was to refuse OCCUR the use of the facility from the next time.
The significance of this trial is that social prejudice and feelings of discrimination abouthomosexuals which are unconsciously internalized by administrative officials are felt in public
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places. However, the legal positioning of homosexuals as minorities should consider their
human rights.
Both the court of the first instance and the second instance ruled that facility managers
refusing the use of facilities to homosexuals is illegal. The courts also emphasized the kind of
attitude that administrative officials should have. What was confirmed in the ruling is that (1)Homosexuality is one of the sexual orientations that human beings have. And homosexuality is
no longer considered to be pathological in psychology/psychiatry internationally. (2) The genderseparate room rule is a social custom premised on heterosexual love. There is a serious
disadvantage when it is applied mechanically to homosexuals . (3) Elementary school students
have the ability to understand homosexuality. (4) Homosexuals have accommodation rights. (5)Discriminatory behavior of elementary school students is caused by curiosity about andcontempt for homosexuals . And (6) The social recognition situation about homosexuality ischanging now. Then the court concluded , (7) "As administrative authorities including theMunicipal Board of Education , when conducting their duties , must pay careful attention tohomosexuals who are small in number and adequately defend the rights and interests ofhomosexuals . And as persons exercising public power, to be indifferent or not to acknowledge
the situation is not permitted.”
As the Tokyo Metropolitan Government did not appeal to a higher court about this judgment,
the Tokyo High Court judgment stood. Therefore, it became an important judgment for accusing
the unjustness of administrative correspondence.
２． Gender equality law and human rights protection of a sexual minority
The above judgment that homosexuals are minorities whose human rights should beconsidered became a memorable precedent for twenty years . Even now, however , in Japan ,there is no legal basis for sexual minorities to fight the discrimination against their own rights 7
which is a big difference compared to the situation of Taiwan, Province of China. This absenceof legal basis is one of the factors that caused the stagnation of the development of sexual
minorities’ human rights protection in Japan.
（１）Women's political participation and positive action
The creation of a legal system of Taiwan, Province of China to prohibit sexual minority
discrimination8 is developing based on the gender equality law. The "Gender Equity Education
Act", which stipulated the elimination of discrimination based on sexual orientation and gender
identity for the first time in East Asia, started with a draft of women's movement which aimed
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for human rights protection of women in the education field. Later it transformed into a genderequality law that subsumed the issue of sexual minorities in the drafting process9.
Because Taiwan, Province of China is not an official member of the United Nations, it does notappear in the index or ranking of the United Nations. However, if we look at statistics of Taiwan,
Province of China based on the United Nations Development Program Gender Inequality Index (GII)(2012), Taiwan, Province of China has the lowest gender inequality index in Asia. Every year
, one major factor is the high proportion of female legislators (Fukuda 2014 ). In 1998 , theproportion of female legislators in Taiwan, Province of China was 19.1%, but in 2016, it is 36.6%.10 In the National Assembly of the Parliament (IPU)’s annual
report, Taiwan, Province of China is ranked 24th in the world.
With the percentage of female legislators at 9.3%. Japan ranks at 163. Women's politicalparticipation has not advanced at all, which is a major factor impeding the realization of genderequality
A dramatic increase in female legislators is often brought about by a quota system obliging
the recruitment of a certain proportion of female candidates or reserved seats through theconstitution and election law.

In Japan, there is resistance to legal affirmative action for

women. Discussion to introduce it does not generate much excitement. But in Taiwan, Province ofChina, it seems that there is little resistance to a women's reserved seats system. The Constitutionof the Republic of China, which was brought into Taiwan, Province of China after World War II in
1946, stipulates that it is necessary to establish a women's reserved seats system in each parliament
to ensure gender equality. Moreover, the Taiwanese Constitution is effectively frozen. One seat fora woman was reserved per ten winners in local level bodies . This rule later became law and wasapplied in central level elections . And in the local institutional law (promulgated in 1999 ), thenumber recommended by the law was raised from 10% to 25%. And in 2005 when the proportional
representative co-ordination system of small electoral districts was introduced into election system
reform, the proportion for women of each political party winners in the proportional representativeelection was set at 50% or more . The number of female representatives rose even in the small
district elections. Therefore, it follows that this 50% guarantee system pushes up the percentage offemale representatives in the Legislative Yuan to 30% (Fukuda 2014 · Counterattack 2010).
（２）Participatory democracy and propagation of international trends of gender mainstreaming
What led to a higher level of female representation in Taiwan, Province of China? One factor isthat the direct external pressure of the United Nations did not work . Another is that a
discriminatory domestic legal system for women was maintained until the 1990 s. In Taiwan ,Province of China , there was also a Relatives Civil Code which prioritized fatherhood andhusband rights until the 1990s. And even in the 1980s, there was no law to ensure the6Journal of Asian Women’s Studies Vol.24

employment of women despite women's considerably higher education11.
Due to the maintenance of a discriminatory legal system for women, however, the main
battlefield of women's movement has become legislation and law reform. And because it is notexpected that the government will voluntarily promote policies by external pressure, thewomen's movement actively entered the policy decision process. This included the criticizingof the conservative Kuomintang government on women's policy, while working with the
Democratic Progressive Party (DPP) that criticizes the system（Ko 2010）. In the Taipei
mayoral election, the woman’s movement supported Chen Shui-bian, a candidate for the
Democratic Progressive Party. After Chen, won, the "Women's rights promotion committee(Women's rights promotion committee in 2005)" was established in Taipei in 1996.

The

committee functions as a participatory democratic platform for women's movement groups.

It

was also a model for other municipalities and central government. (women’s rights association
model).
Women organizations as well as women lawyers, researchers and activists who studied atuniversities and graduate schools in Europe and the United States returned home after themartial law was canceled. They became important political participation actors. The second
wave of Western feminism and gender/sexuality tendencies in the West were brought in by the
U-turn of the study abroad boomers; the theoretically backed up women's movement and therights advocacy movement of sexual minorities. Many women who were appointed as
bureaucrats from women's movement organizations12 as well as a policy participation network
consisting of three parties-femocrats or legislators, academic experts and non-government
women's groups helped to promote gender mainstreaming.13 It is also important that the KMT
has been forced to change along with the ascension of a DPP government. Even after the DPP
became the ruling party in 2008, the bill with a gender perspective was regarded as part of thestrategy to return to the international community.

In addition, it was part of the DPP strategy

of national integration, which also encouraged the legalization of same-sex marriage. In 2011, a
law to implement the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) was enacted in Taiwan, Province of China. And a system was establishedin which the government

voluntarily

implemented

and monitored the Convention 's

14

philosophy by the government .
（３）Domestic political situations to impede the international trend of gender mainstreaming
The legal institutionalization of gender equality in Japan has been influenced by aninternational trend connected to the United Nations. In 1975, the National Ｗomen’s Year set up

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a National Machinery at the Office of Prime Minister to comprehensively promote the status of
women. And in 1985 in Japan, in order to ratify the Convention on the Elimination of All Formsof Discrimination against Women, amendment to the paternal priority nationality law was
implemented, co-education of home economics at high school was carried out, and the "Equal
Employment Opportunity Law" was legislated. However, even now, wage disparities between
men and women do not shrink.

Rather, women's labor participation has been enclosed into

irregular employment with poor conditions such as part-time work (Miura 2011). Meanwhile,
while responding to the trend of international gender equality, contradictory polices, such as apension and tax system that give preferential treatment to housewife households, were
implemented.

These policies reinforced the postwar system of families and impeded theeconomic independence of married women.
These contradictory policies occurred under the postwar political system managed by theconservative Liberal Democratic Party (LDP).

When the sole ruling party system of the LDP

collapsed in the 1990s and a series of coalition governments was established, the search for apolitical order reflecting more democratic and diverse public attitudes began. Through the 4thWorld Conference on Women, a network of bipartisan women and NGO women was formed inJapan. This in turn became the driving force for promoting gender mainstreaming policy and thelegislation of gender equality aimed at "building a social system" in Japan.15

In the preambleof the Basic Law for Gender Equality Society enacted in 1999, the "gender equality society" isdescribed as a society that can fully demonstrate individuality and ability "regardless of male orfemale." Based on the Basic Law, the municipalities throughout the country are proceedingwith the establishment of ordinances towards promotion of "gender collaborative (equality)
participation policy."

Some local governments insert the phrase "sexual orientation" into

ordinances, assuming the presence of homosexual citizens. However, within the LDP, as the
movement aiming for the revision of the patriarchal family system and the constitutional
amendment that contains provisions restricting basic human rights became active, critical
discourse (backlash) pushed back the flow of gender mainstreaming as extreme feminism spread
rapidly on a nationwide scale, mainly in local councils (Hikita 2006). A specific example was
the deletion of the phrase "regardless of sex" included in ordinances and the permitting of thewords "accepting the difference between men and women" to be inserted into ordinances.
Although it is a policy task of the municipality to promote non-politicized gender equality, local
governments were forced to retreat due to the delayed response to the backlash faction ofpoliticians (Funabashi 2007).

3. “Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder”
establishment and evaluation
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In Japan, gender equality was delayed. "Act on Special Cases in Handling Gender Status for
Persons with Gender Identity Disorder" was enacted in 2003 to solve the problems oftransgenders. In the 1990s, female legislators who could become critical actors to promotewomen's policies were elected by the House of Councilors' restricted roster proportional
representation system (Miura 2016). From the late 1990s to the beginning of the 21st century,
important laws such as the DV Prevention Law, the Stalker Control Law, and the sexual
harassment provision of the Equal Employment Law were enacted in cooperation withbipartisan legislators and NGOs (Kaino 2005). Act on Special Cases GID is also one of its"citizen legislation."

Councilor Noono Chieko (LDP) is one of the above female legislators

who played a central role in the agreement’s formation in the LDP.
（１）Legal status of transgender as "gender identity disorder"
The first legal argument in the field of sex change in Japan is a case where the physical sex
change by gender change surgery was contested (Blue Boy case). In this case, if the court
ruled that the sex change operation was judged to be in violation of the Eugenic Protection Law(at the time) (Tokyo District Court 1969, Tokyo High Court 1970), there would have been a
guilty verdict.

Rather, the judgment did not make the sex change operation itself illegal. It

allowed that if the process is given informed consent, it may be accepted as a medical practice.
In 1998, sex change operation as a treatment for sexual identity disorder was legally performed
in Japan for the first time. The Saitama Medical University Ethics Committee reported on this in"Report on Recommendations on Gender Identity Disorder and Recommendations" (1996).
And the support/self-help group for sex-identity disabled "Trans-Net Japan (TS and TG "The
Association of People Who Support") was launched.

The Japanese Psycho-neurologicalSociety announced "Guidelines for Diagnosis and Treatment of Gender Identity Disorder"(1997).

After the Ministry of Health, Labor and Welfare confirmed that the sex change

operation did not violate the Maternal Protection Act, the surgery was carried out. When thesurgery was openly carried out in Japan, GID study group (organization centered on doctors),
TS method study group (mainly lawyers) and the Trans-Net Japan Movement began to moveconcretely towards the enactment of laws for gender identity disabled people to legally change
gender.
In Japan, many official documents on a daily basis have a gender description column whichmust be presented in various situations. Every time someone is made conscious of a sex
different from oneself’s sex identity or treated as that other gender, this causes uncomfortable
and intolerable pain. Whether rape charges are applied or not, whether housed in a prison
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accommodation facility for men or women16, the exercise of public authority is usually based on
the sex listed in the family register. Even before the implementation of sex-compatible surgery,allegations to change the gender of the family register to the court have been made, but neither
was allowed17. The court’s criterion is that "the sex of a human being should be decided
according to the sex chromosome" (determined by the Nagoya High Court on November 8,1979).

However, a legal sex change was practically difficult due to the legal technicalproblems which affects the family register of other family members. Because changing one’s
gender means changing the notation of the relationships including the order of age (eldest son,second son, eldest daughter, second daughter etc.).
（２） Legal protection of transgenders by Act on Special Cases GID
While the number of cases of sex-compatible surgery in Japan was increasing, the courts also
urged legislative resolution in the decision (determined by the Tokyo High Court February 9,2000). In the long running television drama "Kinpachi sensei," gender identity disorder is the
subject. A person with a gender identity disorder ran for local councils and was elected.

And

academic and practical organizations such as the Japan Society of Sexual Society and the Japan
Federation of Bar Associations repeatedly issued statements requiring legislation. Given thisbackdrop, some LDP members who tried to address this issue appeared. However, since therevision of the Family Register Law is hopeless, they aimed to establish a special law.
Councilor Noono Chieko took the lead, creating a bill aimed at the establishment of a special act.
Thus, the “Act on Special Cases in Handling Gender Status for Persons with Gender Identity
Disorder18”was unanimously established at the record speed of just 10 days after the submissionof the bill to the Diet.
Even at the time of enacting the law, however, there were conflicting opinions among theparties' groups who cooperated with the enactment of the law. The established Act on Special
Cases GID approved the change of the gender status in family registration only for the person
who is a Person with Gender Identity Disorder (Article 2) and falls under all of the five
following items: (1) is not less than 20 years of age; (2) is not currently married; (3) currently
has no child（Article 3 of the same paragraph was revised in 2008 to “currently has no child who
is a minor”; (4) has no reproductive glands or whose reproductive glands have permanently lost
function.

And (5) has a body which appears to have parts that resembles the genital organs of

those of the Opposite Gender.

A particularly highly controversial requirement by the parties

was item (3) "currently has no child." There were no legislative examples of foreign countries
which were referred to in this legislation.

In order to prevent the influence and confusion of

the child's welfare and family order, it was explained that a person with a gender identity
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disorder can not change his/her gender status, as long as he/she has children.

And it is

assumed that children and families can not accept gender change. Opponents of this requirement
argued the law infringed Article 13, 14 and 25 of the Japanese Constitution. However, theSupreme Court upheld the law by granting the legislature extensive discretion because thereason for its establishment was not rational, although "Gender is a serious matter related to theperson's personality". (Watanabe 2017, Decision of the Supreme Court First Petty Bench on
October 22, 2007)19.

Moreover, the requirement of (2) non-marriage which is described as

avoiding the situation of same-sex marriage by legal change of gender status does not accept
same sex marriage as an exception. Rather it confirms heterosexual centralism20 and forces
divorce contrary to the intentions of the parties. In addition, requirement for (4) no-reproductivefunction and (5) genital appearance of the Opposite Gender21 is included to avoid pregnancy
due to the remaining reproductive function, and because " there is a risk of confusion in social
life (at public bathing places etc)." Both requirements, however, force surgery with healthrisks and economic burden.
（３）Evaluation of Act on Special Cases GID and the significance of the legislative movement
Although the Act on Special Cases GID is the only domestic law that responds to legal issues
concerning sexual diversity, it is (1) systematically designed on the basis of society’s
non-recognition of gender identity disorder, (2) a society which strictly maintains gender binary
based on physical characteristics and a marriage order premised on heterosexual love.
Consequently, diverse transgender people, who can not receive legal protection, have become
isolated in society with difficulties.
But I would like to point out the merits of the law’s enactment. Firstly, with this legislation
as the starting point, movement, such as litigation, appeals to the government and lobbying forthe revision of the law started with the human rights violations of the five requirements.

At thecenter of the movement was the "gid.jp; people who live with gender identity disorder in Japan"(formerly "the association aiming for a society where people with gender identity disorder canlive ordinarily.”22) They established this organization at the same time as the enactment of thelaw. The organization has branches nationwide to continually promote understanding andinformation on gender identity disorder, support for improvement of the lives of the parties, andmake policy recommendations to the government, Diet, local governments and variousorganizations, etc.
Second, as the term "gender identity disorder" was stipulated in the law, gender identity
disorder was widely recognized by society. And the government started to make some responseto the difficulties faced by sexual minority children.

In 2010, the Ministry of Education,
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Culture, Sports, Science and Technology (MEXT) issued a notice to local goverments an
educational committees nationwide on "Making thorough Educational Counseling on Problemsof Children Students," targeting children with gender identity disorder. And in 2014, MEXT
carried out a nationwide survey on child students with gender identity disorder (genderdisagreement). And in May of 2015, MEXT released a notice on “About the implementation ofdetailed response to students with gender identity disorder.”And in 2016, MEXT prepared a

guidance manual for faculty and staff for the "implementation of fine-tuned responses tostudents on gender identity disorder and sexual orientation/gender identity (SOGI), such asdetailed measures to deal with child students." Consideration for sexual minorities in general
were required.
４ Country's response to the UN SOGI resolution and efforts by local governments
What became clear from the experience of legislating Act on Special Cases GID is that thelegislation produces divisions among various sexual minorities by establishing the scope of
legal protection.

Moreover, the legal system and social institutions built on the basis ofmajority (cis gender and heterosexuality) are the biggest obstacles to the expansion of theguarantee of sexual minorities’ rights. From this point of view, it is said that in the field ofinternational human rights law, the concept of SOGI (Sexual Orientation and Gender Identity)23
is focusing on individual attributes used. The Japanese government is actively involved in UN
efforts on SOGI. Despite this, contradictory attitudes that do not advance domestic reform
were indicated.

It can be said that Japanese bureaucrats do not care much about international

evaluation in the human rights field (Miura 2014). In Japan, it is also a factor that does notadvance domestic reforms according to international norms.
（１）Japan's response to SOGI resolution and international evaluation of the human rights fieldTwo examples of Japanese attitudes towards human rights issues of sexual minorities commonly
mentioned are related to responses to a series of resolutions on efforts of human rights
protection regarding sexual orientation and gender identity (SOGI resolution in 2011, 2014).
Japan voted in favor of the resolutions as a member of the UN Human Rights Council. It also
played a central role in these measures as a member of the UN LGBT Core Group. However,the Japanese government has not actively undertaken aggressive domestic legal system reformin accordance to the recommendations based on adopted measures.
The next point is that the Japanese government did not abstain but voted against theresolution 24 to condemn execution of homosexual acts adopted at the United Nations Human
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Rights Council on September 29, 2017. This resolution, which was proposed by European
countries including Belgium and Switzerland, condemns the imposition of a death penalty as a
sanction against apathy, disbelief, adultery, consenting homosexual acts etc.

27 of 47 member

countries agreed, 13 countries opposed and seven countries abstained.

Japan voted in

opposition as did the United States, Saudi Arabia, etc.

About Japan’s voting behavior in theUN, the Ministry of Foreign Affairs (MOFA) explained on its website,25 “The reason is that the
purpose of this resolution as a whole was a biased towards the abolition of the death penalty andthe seeking of a temporary suspension of execution (moratorium).”

And the “Ministry ofForeign Affairs expressed on the floor that Japan expressly opposes all discrimination. It
clearly expressed the opinion that discrimination in the case of capital punishment was not
permitted.”

In 2015, as Japan voted against an U.N. resolution related to the death penalty

issue, its vote against the resolution in 2017 was consistent with its previous voting.

However,for MOFA, as a member of the LGBT Core Group, the priority was not avoiding the risk ofJapan being regarded as accepting discrimination. Rather it wanted to emphasize that stopping
the death penalty was not a national obligation.
（２） Initiatives of the same-sex partnership certification by local governments
Despite the contradictory attitude of the Japanese government against the UN SOGI
resolution, the international trend pushing for sexual minorities’ human rights has certainly
propagated to Japan. Attention is also focused on the movement of local governments on theso called "LGBT boom".

In 2013, Yodogawa Ward of Osaka, as an administrative institution,issued for the first time the "Declaration of Support for LGBT" as well as started telephone
consultation and staff training etc.

Following in 2015, Shibuya Ward enacted regulations

stipulating the procedure for issuing the same partnership certificate.26 In response to thisaction by Shibuya Ward, efforts and activities of other municipalities, such as enlightenment
activities, the training of staff and opening of consultation counters on sexual orientation andsexual recognition accelerated sharply. According to the "Survey of measures concerning gender
identity and sexual orientation in national municipalities (hereinafter referred to as municipal
government survey in 2016),” 27 conducted in 2016, municipalities referring to sexual
orientation and gender identity in the official documents as the basis for implementing measures
such as local governments' plans were 188 (23.2%) among 811 municipalities. And since thepartnership certification service began in Shibuya and Setagaya Wards, the number has
increased dramatically from 2015 to 2016. 28
Following Shibuya Ward, municipalities that start partnership certification services appear
one after another. They are now implemented in five other municipalities as well such as
13

Journal of Asian Women’s Studies Vol.24

Setagaya Ward (November 2015); Iga in Mie Prefecture (commenced in April 2016);
Takarazuka in Hyogo Prefecture (June 2016); Naha City in Okinawa Prefecture (July 2016) andSapporo in Hokkaido (June 2017).

Only Shibuya Ward enacted regulations aimed to be aslegally effective as possible by making it mandatory to prepare a notarized document whenissuing certificates.

Residents, business operators, public institutions, etc. in Shibuya Ward

must carry out the maximum responses and take appropriate measures as possible for effective
legal impact. The five municipalities after Setagaya Ward are based on the "outline" establishedby the decision of the heads of municipalities. And the main focus is placed on prompt
response to the diverse needs of sexual minorities.
The procedures of Shibuya and Setagaya are modeled respectively as the "Shibuya method"
and the "Setagaya method."And concerning the requirements for the parties to whom thissystem is applied (such as applicant's address, presence or absence of marital disability reason,same gender on family register etc.); documents necessary for application; the handling of
applicants, and so on, Various issues have been clarified, and various ideas have been devised.
However, this system has the function of making the same-sex couples socially recognizable.
Although at the same time as it announces sexual orientation, there is also a risk of social
prejudice against homosexuals. Therefore, in the case of the "same-sex partnership oath" in
Setagaya, they are considering privacy. For example, the oath ceremony is carried out in themeeting room on the office’s closed day. Attention is also paid to the place for photographs sothat it is not identified.

In addition, as there is no confirmation made with the family register,

there are no public order and morality violations incurred. In this way, it is understood from thisinterview that administrative officials are making various efforts to gain trust from residents.
Since the system started a year and a half ago, a total of 53 pairs have administered the oath.
This confirms that there is a need for public approval, even if it is not legally binding.
（３）Policy of municipality for supporting independence of a sexual minority
Categorizing concrete policies that municipalities are working on can be classified into thefollowing five: (1) training for municipal officials, (2) enlightenment activities through lecturesand symposiums for citizens, (3) support for independence of sexual minority parties, such as
dedicated telephone counseling, in person assistance, and assistance with a place to live, (4)documentation of adding sexual minority words in documents such as basic plans andguidelines and the (5) establishment of regulation.
According to the “Municipal government survey in 2016,” many municipalities are linked to(1) training, (2) enlightenment, and (4) documentation, triggered by demands and consultations
from citizens and citizen groups. One area where many municipalities have taken action is the14

Journal of Asian Women’s Studies Vol.24

column on forms asking about gender. Since the establishment of the Act on Special Cases
GID in 2003, the movement for getting rid of this column is spreading.
However, we can not deal with the response to the gender binary system besides the sex
mention column sex section unless it is implemented as a policy task of minority human rights
protection. Concerning the support of independence of sexual minorities, the municipality plays
the role of supporting sexual minorities side by side to support problem solving. Focusing on
the minorities with difficulties, efforts as a modern administrative task to support self-relianceare necessary, and regulation and institutionalization are necessary.29
Until now municipalities have focused on elderly people, people with disabilities, foreigners,
and child victims of crime. However, for a concrete measures related to sexual minorities,
there are policies such as establishment of dedicated telephone counseling, empowerment ofparties by assisting with a place to live and providing living support, such as the introduction of
medical institutions and real estate.

Measures for the parties to become self-reliant

entities through municipalities’ support have already been tackled in the field of genderequality.

Local governments, based on victims’ counseling at female centers as well as

through women's counseling and police assistance etc., have supported solutions to the matters
mentioned above.

Regarding the human rights protection of sexual minorities, many local

governments are engaged in gender equality policies at woman’s centers and other organizations
concerning such parties' independence support activities. In addition to the activities of themunicipalities, there is helpline called “Yorisoi Hotline” for sexual minorities as a special
consultation services. The "Yorisoi Hotline" is a dedicated 24-hour 365-day free line operated
by the "Social Inclusion Support Center." The Center is a corporation which received subsidy
from the Ministry of Health, Labor and Welfare.

The NPO "Sexual minority support

nationwide network to create a symbiotic society (Symbiotic Net),” a corporation, is in chargeof telephone consultations on the line and supports local government measure.
（4） Start of "Parliamentary Association": "Eliminate discrimination " or " Promote
understanding"?
In 2015 when Shibuya Ward issued a "same-sex partnership certificate", the discussion on
sexual minorities started at the level of national administration. It seems that the establishmentof Shibuya Ward’s regulation became big news.

While news of The Tokyo Olympic Gamesand the Paralympic Games scheduled to be held in 2020 continues, the word "LGBT boom" haspenetrated through the media. This is a promising sign. By the call of Representative Hase
Hiroshi (Liberal Democratic Party), who was concerned with the establishment of Act on
Special Cases GID, in March of 2015, the "Parliamentary League for Considering Issues on
15

Journal of Asian Women’s Studies Vol.24

LGBT" (hereinafter referred to as the Federation) consisting of bipartisan Diet members started.
In response, the LGBT Federation Association (a nationwide association for the development oflaws against parties with difficulties due to sexual orientation and sexual identity etc.) was
formed in April of 2015. And with the approval of about 70 parties' groups and others,
movements towards the establishment of the "LGBT discrimination prohibition law" began.
Due to the internal affairs of the Liberal Democratic Party, however, adjustment at thefederation did not proceed smoothly.

This internal situation involves the forming of politicalfactions by conservative lawmakers who do not understand completely the problems faced bysexual minorities. Member of the House of Representatives Goshi Hosono wants to promotelegislation. Member of the House of Representatives Hiroshi Hase wants to advance legislation
through the coordination of ruling and opposition parties in the Federation. And LDP president
political chairman Tomomi Inada who later changed her position to favor legislation. Amongthese three actors, movement aimed at establishing the law was confused. Ultimately, the LDP
was unable to obtain consensus within the party due to the opposition of conservatives' to thedraft "Understanding Promotion Bill."

Consequently, only the "Basic way of thinking" wasannounced. And in May before the Upper House election 4 opposition parties submitted thedraft "Bill to resolve LGBT discrimination" (Bill for resolving discrimination, etc. due to sexual
orientation or sexual recognition) to the Diet, but the bill has not yet been deliberated (Nikaido2017).
Although the draft of LDP "Understanding Promotion Bill" has not been announced, it
basically emphasized the need for human rights awareness and human rights education.

There

is a great distinction philosophically between the above LDP proposed bill and the opposition
party's draft bill - “Resolving LGBT discrimination Bill," which provides prevention andprohibition of direct discrimination and indirect discrimination against LGBT and obligation ofreasonable consideration. Based on the experience of the legislation of the Act on Special
Cases GID, it could be possible in the future to create a “LGBT Basic Law,” which prioritizes
the terms and definitions of "sexual recognition" and "sexual orientation" in the law as the nextstep.

In addition, for the protection of sexual minorities’ human rights, support of theirautonomy is indispensable.

If the law only stops at preventing discrimination of theseminorities, this leads to isolation.

Discussion about the establishment of basic laws that

require all municipalities to implement support for these minorities should be held.
Conclusion
Taiwan, Province of China is where same-sex marriage was legalized for the first time in
Asia.

And Japan is where there is no basic law on sexual minorities nor laws or precedents
16

Journal of Asian Women’s Studies Vol.24

that give any kind of legal protection to homosexual partnerships. What is the cause of thedifferences in this legal situation?
First, in Taiwan , Province of China where democratization advanced since the late 1980s,
the proportion of female legislators remarkably increased , the gender gap was eliminated ,and triangles of women's movement, scholar experts, and female bureaucrats that promoted
gender mainstreaming have also played an important role in expanding the citizenship ofsexual minorities.
On the other hand, in Japan, employment systems are based on the premise of gender role
based division of labor. This in turn has supported Japan’s economic growth since the 1970s.
And in the 1980s, it also supported a lifestyle maintained by legal marriage of men and womencouples, modeled on men working long hours and women housekeeping. While isolatinghomosexuals in a subcultural private space, legitimization of legal marriage and homosexualhomophobia. This trend based on the premise that "heterosexual = legitimate/homosexual =sexual abnormal" unconsciously spread throughout society.

In addition, the civil rights

movement that was triggered by the AIDS panic in the late 1980s was visualized mainly by
male homosexuals.
Secondly, in Taiwan, Province of China, the "Gender Equality Education Law" was enacted
as a law to respond to the legal issues of sexual diversity and the increasing number of young
people who accept homosexuality as normal . This has led to legalization of same-sex marriage.
On the other hand, in Japan, response to sexual identity disorder preceded to legislation, andthe enactment of the Act on Special Cases GID. This act permits the change of gender status
only for persons with gender identity disorder who meet strict legal requirements and include
them in family. Therefore, the legal system of the family order presupposing heterosexuality andthe sexual binary system based on physical characteristics was maintained and strengthened.
Through this legislative movement, it became clear that there was a review of the legal andsocial system (family registration, a family-based family registration system) structured
according to the majority (cis-gender heterosexual).
Thirdly , in the case of Taiwan , Province of China , which is internationally isolated ,democratization is important for appealing its existence to the world. And policies to realize
human rights protection of international standards promoted the legalization of same -sex
marriage. The Taiwanese judicial system has made aggressive constitutional decisions to adapt
to this. On the other hand, in Japan , which has formed an alliance with the United States andwon status as a developed country , domestic factors impact on matters of sexual diversity andissues of gender equality . One such factor is a political situation which makes it difficult tochange the editing principle of the family registry and the marriage laws based on it. Thus,
Japan has few incentives to acquire the international networks’ estimation through human rights
issues. In
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Journal of Asian Women’s Studies Vol.24

addition, the courts, which have right of judicial review, recognize the legislature’s broad
discretionary power and are unlikely to interpret the Constitution to conform to international
human rights law.
Further elaborating on differences with Taiwan , Province of China , I would like to callattention to the fact that Japanese local governments have carried out a variety of advanced
efforts which have also impacted on affairs at the national level. Particularly in Shibuya, the startof the same -sex partnership certificate service has accelerated citizen reviews and various
initiatives of other local governments through the media. Moreover , conservative politicians
have started to realize that 'social consciousness is beginning to change '. Concerning thistrend, parties ' organizations with experience in peer support and outreach activities of sexual
minorities are also important actors who collaborate with academics, lawyers, etc., create lists ofdifficulties that sexual minorities face everyday , work with local governments and makepolicy recommendations to the government.
In Japan, various local government initiatives like the “Shibuya model” and the “Setagaya
model” respectively could be an important resource for legal institutionalization at the national
level . At the same time , in Taiwan , Province of China , the advanced efforts of Taipei City
became a model ("Women Rights Committee" model) and a gender mainstreaming platform wasrealized even at the national level (Kaneto 2005). If we can learn from the feminism movement
in Taiwan, Province of China, Japan should tackle both the protection of sexual minoritiies andthe gender gap at the same time.
Acknowledgements
I would like to thank Minata Hara, representative of the NPO corporation "Sexual / Minority
Support Nationwide Network Creating a Symbiotic Society" for his cooperation with theinvestigation of local governments' efforts. And I would like to thank the reviewer of this paper
for the detailed and polite comments received until the completion of my paper.
NOTES
1

In addition, the constitutional court declared that "even if legal measures are not taken, rights
and obligations as spouse will occur by marriage register.”2 ‟Taiwan, Province of China Is Closer to Being 1st Asian Place to Allow Same-Sex Marriage”, Gender Newsin Taiwan, Province of China CEDAW in Action http://www.cedaw.org.tw/en/en-global/news/detail/147

See, Tamura（2017, Taiwan, Province of China to Singaporu ni-miru Seiteki Mainoritii no Jinken to
Simin-syakai(Sexual minority human rights and civil society seen in Taiwan, Province of China andSingapore). Ajia Josei Kenkyu (Journal of Asian Women's Studies (JAWS), No.26),19-35

3

The metaphor of “ a flowerless plant " in magazines was continuously used until the late1980s . Continuously, gays were depicted as dark, spooky and as a multiplying phenomenon.
The word "homo" has been used frequently in male magazines as a new word since the 1970s.
418

Journal of Asian Women’s Studies Vol.24

It was said that unknowingly this image was violating the readers’ world.
5
For the AIDS panic including the extraordinary news at the time. See, Ikeda,Osamu (1993),
Tukurareta Eizu Panikku (AIDS Panic Made). Tokyo: Kiri Shobo, Ikeda, Eriko(1993),Eizu toIkiru Jidai (Age of living with AIDS). Tokyo: Iwanami Shioten, Kazama,Takashi and
Kawaguchi,Kazuya (2010), Dosei-ai to Isei-ai (Homosexuality and heterosexuality). Tokyo:
Iwanami Shoten.
6See, http://www.occur.or.jp/about.html
7However, the Ministry of Health, Labor and Welfare shows "sexual harassment guidelines"that discriminatory behavior against sexual minorities in the workplace is included in sexual
harassment of the Equal Employment Opportunity Law (May 2015). Similarly, the National
Personnel Authority revision of the sexual harassment provision (December 2016) was also
seen as an improvement. In addition, the rape charges of the criminal law regulating only
women as victims were revised to "extortion for sexual intercourse" regardless of gender (June2017). Even in the amendment of the Child Welfare Law and the Child Abuse Prevention Act(June 2017), appropriate responses to residents who are sexual minorities were specified
clearly.
8
Focusing on actors, not all women's movements that became active after martial law decree
lifted the LGBT rights advocacy campaign. Some female legislators have also put on "hold"LGBT rights protection and same sex marriage. For these circumstances, see TAMURA (2017)
and HO (2013).
9
Also in the field of employment labor law, the “Gender Equal Employment Bill,” aiming tosecure women's labor rights, was drafted by a women’s movement organization. After the bill
became law in 2002, it was amended in 2008 to include a provision prohibiting discriminatory
treatment on the grounds of sexual orientation and gender identity in the workplace.
10
行政院主計総処「國際性別平權綜合指數」性別不平等指數(The Directorate General of
Budget, Accounting and Statistics (DGBAS), Executive Yuan, “International Gender Equality
Composite Index”（Gender Inequality Index, GII）, Update :2017-04-21.
https://www.gender.ey.gov.tw/
11
There was no law to guarantee the employment of women until the "amphoteric equal work
method" was enacted in 2001. In the 1990s, the practice of women still having to voluntarily
retire if they got married or pregnant still continued.
12
In Japan, female bureaucrats who worked at the department in charge of female policy arebasically made into femocrats but in the case of Taiwan, Province of China, there is interactivity "from feminists to bureaucrats" and "from bureaucrats to feminists"（Hong 2010)13“Gender Equality Education Bill,” since the drafting team of the draft actively adopted
external opinions by inviting private activists, researchers, school teachers, etc., has been sent to
the Legislative Yuan and has been deliberated on in just two months.
14
Legislature passes CEDAW act, TAIPEI TIMES http://www.taipeitimes.com
15
As a result, there are amendments to the Equal Employment Opportunity Act (1997, 2006),
enactment of the Child Care and Family Care Leave Law (2001), and the Domestic andViolence Act (DV Law: 2001, 2004 revision) .
16
Regarding treatments at the penal institution of a transgender who is a man in family registerand biology, but is a woman in terms of gender identity and appearance, the Tokyo District
Court's decision on March 29, 2006 said that "unless there are special circumstances, a female
official, doctor or a young woman should inspect the detainee, while respecting the latter’s selfrecognition of their sexual identity.
17
Regarding the correction of the gender description of intersex, there is a decision to allow
correction as if there was "mistake" (family register law 113) in the description of the family
register. However, changes in gender description due to sexual identity disorder were notbased on mistake as described in Article 113 of the Family Registration Law and correction of19

Journal of Asian Women’s Studies Vol.24

family register was not allowed.
It was promulgated on July 16, 2003, and came into effect on July 16, 2004.
19
Supreme Court Decision on October 19, 2007 (Family 60, Vol. 3 No. 36); and in the same
year, the October 21, 2007 Decision (Family 60, Vol. 3, p. 37).
20
Besides that, the requirement for（4）no-reproductive function is contrary to the basic idea ofreproductive health/rights, and the requirement for (5) genital appearance of the Opposite
Gender is criticized because of expensive medical expenses applied outside the National Health
Insurance and difficult access due to limited special medical facilities.
21
Concerning the two requirements for a sex change operation, the cost, limited medical
institutions that can handle this and the possible infringement of reproductive health rights arepointed out as problems.
22
See. https://gid.jp/ According to HP of gid.jp, the number of changes related to the handlingof gender changes in 2016 is 885. The cumulative number of changes since the enforcementof the law is 6,906.
23
To be exact, although the term SOGIESC which includes Sexual Orientation (SO), Gender
Identity (GI), Gender Expression (GE), Sex Characteristics (SC) (Taniguchi 2017) is in use, thispaper calls attention to the SOGI resolution of 2011 which alternatively uses the term SOGI.
24
http://ilga.org/downloads/HRC36_resolution_question_death_penalty.pdf
25
See. Foreign Ministry's HP "36th UN Human Rights Council" Death Penalty "resolution
adopted (October 18, Heisei 20)" http://www.mofa.go.jp/mofaj/fp/hr_ha/page25_001054.html
26First Shibuya Ward is the local government which made the regulations by the strong
political intention of its chief to "empty a vent into the society tabooing a discussion of thesame-sex marriage." Based on the Shibuya Ward Chief’s resolution, five other local
governments established a network.
27"Survey on Policies on Gender Identity and Sexual Orientation in National Municipalities(conducted April - July 2016) Report" (August 2017), edited by Grants-in-Aid for Scientific
Research "Construction of Queer Studies in Japan" Research Group.
28
In 2015, the number of newly mentioned official documents was 31, compared to 103 in2016.
29
According to municipal survey in 2016, there are 27 municipalities (3.3%) that have words
directly related to "gender identity" and "sexual orientation" in their ordinances. At the sametime, 786 municipalities (96.7%) are not mentioned. As regulations are adopted by majority
votes in the local legislatures, the ability to respond to criticism from conservatives is important.
Municipalities such as Bunkyo Ward and Tama City, which fully reflected the opinions of thecouncil members and female citizens, were rarely confused. For example, the ordinance ofBunkyo Ward was unanimously approved by the local legislature.
18

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ANNOTATIONThis paper, which examined and analyzed a part of the survey results detailed in "KFAW
Research Report" (VOL 2017-1), was written as a "Research Paper" under the same theme inthat volume.

23