LGBT rights in Japan

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LGBT rights in Japan Japan
Japan (orthographic projection).svg
Same-sex sexual intercourse legal statusLegal since 1880
Gender identity/expressionChange of legal sex allowed since 2003, following sex reassignment surgery
Military serviceYes
Discrimination protectionsSexual orientation protected in some cities, though not nationally[1]
Family rights
Recognition of
relationships
No nationwide recognition of same-sex relationships (partnership certificates offered by some cities)

Lesbian, gay, bisexual, transgender (LGBT) rights in Japan are relatively progressive by Asian standards, although LGBT people lack full legal equality.[2] Same-sex sexual activity was criminalised only briefly in Japan's history between 1872 and 1880, after which a localised version of the Napoleonic Penal Code was adopted with an equal age of consent.[3] Same-sex couples and households headed by same-sex couples are ineligible for the legal protections available to opposite-sex couples, although since 2015 some cities offer "partnership certificates" to recognise the relationships of same-sex couples.

Japan's culture and major religions do not have a history of hostility towards homosexuality.[4] A majority of Japanese citizens are reportedly in favor of accepting homosexuality, with a 2013 poll indicating that 54 percent agreed that homosexuality should be accepted by society, while 36 percent disagreed, with a large age gap.[5] Although many political parties have not openly supported or opposed LGBT rights, there are several openly LGBT politicians in office. A law allowing transgender individuals to change their legal gender post-sex reassignment surgery was passed in 2002. Discrimination on the basis of sexual orientation and gender identity is banned in certain cities.[6]

Tokyo Rainbow Pride has been held annually since 2012, with attendance increasing every year.[7] A 2015 opinion poll found that a majority of Japanese support the legalisation of same-sex marriage.[8]

History[edit]

A wakashū (wearing headscarf) sneaks a kiss from a female prostitute behind his patron's back. Nishikawa Sukenobu (1671-1750)

Homosexuality and same-sex relations have been documented in Japan since ancient times.

In the pre-Meiji period, nanshoku (男色) relationships inside Buddhist monasteries were typically pederastic. The older partner, or nenja (念者, "lover" or "admirer"), would be a monk, priest or abbot, while the younger partner was assumed to be an acolyte (稚児, chigo), who would be a prepubescent or adolescent boy.[9] The relationship would be dissolved once the boy reached adulthood (or left the monastery). Both parties were encouraged to treat the relationship seriously and conduct the affair honorably, and the nenja might be required to write a formal vow of fidelity.[10] During the Tokugawa period, some of the Shinto gods, especially Hachiman, Myoshin, Shinmei and Tenjin, "came to be seen as guardian deities of nanshoku" (male–male love).

From religious circles, same-sex love spread to the warrior (samurai) class, where it was customary for a boy in the wakashū age category to undergo training in the martial arts by apprenticing to a more experienced adult man. The relationship was based on the typical nenja, who loves, and the typically younger chigo, who is loved.[11] The man was permitted, if the boy agreed, to take the boy as his lover until he came of age.[12] These relationships was expected to be exclusive, with both partners swearing to take no other (male) lovers.

As Japan progressed into the Meiji era, same-sex practices continued. However, there was a growing animosity towards these practices. The practice of nanshoku began to die out after the Russo-Japanese War. Opposition to homosexuality did not become firmly established in Japan until the 19th and 20th centuries, through the Westernization efforts of the Empire of Japan.[11]

Terminology[edit]

Modern Japanese terms for LGBT people include dōseiaisha (同性愛者, literally "same-sex-love person"), gei (ゲイ, "gay"), homosekusharu (ホモセクシャル, "homosexual"), rezubian (レズビアン, "lesbian"), baisekushuaru (バイセクシュアル, "bisexual") and toransujendā (トランスジェンダー, "transgender").[13]

Legality of same-sex sexual activity[edit]

Homosexuality is legal in Japan. There are no explicit religious prohibitions against homosexuality in the traditional religion of Japan, Shintoism, or in the imported religions of Buddhism (see "Buddhism and sexual orientation") or Confucianism.

Sodomy was first criminalized in Japan in 1872, in the early Meiji era, to comply with the newly introduced beliefs of Western culture and the Qing legal codes. But this provision was repealed only seven years later by the Penal Code of 1880 in accordance with the Napoleonic Penal Code.[14] Since then, Japan has had no laws against homosexuality. Thus, sex among consenting adults, in private, regardless of sexual orientation and/or gender, is legal under Japanese law.

The federal age of consent in Japan is 13 years old under the Japanese Criminal Law Code. However, all municipalities and prefectures have their own particular laws such as Tokyo's Youth Protection Law which prohibit sexual activity with youths who are under 18 years old in most circumstances. As an added note, even though the age of consent in Japan can be 13, the voting age is 18. The age of majority is 20 (a law to lower the age of majority to 18 is scheduled to take effect in 2022)[15] and the driving age is 18. Japan's Prostitution Prevention Act (1958) only prohibits actual sexual intercourse (or sex controlled by organized crime). That law defines vaginal intercourse as "true" sexual conduct, so prostitution involving anal and oral sex is not prohibited directly.[16][17]

Recognition of same-sex relationships[edit]

Article 24 of the Japanese Constitution states that "Marriage 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."

As a result, articles 731 to 737 of the Japanese Civil Code limit marriage to different-sex couples. Same-sex couples are not able to marry, and same-sex couples are not granted rights derived from marriage. Also, same-sex marriages performed abroad are not legally recognized in Japan and bi-national same-sex couples cannot obtain a visa for the foreign partner based on their relationship.[18]

In March 2009, Japan began allowing Japanese nationals to marry same-sex partners in countries where same-sex marriage is legal. The Justice Ministry instructed local authorities to issue key certificates, which state that a person is single and of legal age, to individuals seeking to enter same-sex marriages in areas that legally allow it. Though same-sex marriages are not legally recognized within Japan, allowing its citizens to marry same-sex partners overseas is seen as a first step toward the eventual legalization of such marriages in Japan.[19]

In February 2015, the district of Shibuya (in Tokyo) announced plans for a procedure of the recognition of same-sex couples for situations such as hospital visits and shared renting of apartments. This procedure allows couples to get a "proof of partnership" paper, which is not based in Japanese law, but can help in, for instance, getting access to a partner who is ill and in the hospital. The Shibuya initiative is considered a significant step towards lesbian and gay partnership rights in Japan.[20] In July 2015, Tokyo's Setagaya ward announced that it would be joining Shibuya in recognizing same-sex partnerships from November of the same year.[21] Since then, the cities of Iga, Takarazuka, Naha, Sapporo, Fukuoka, Osaka and Nakano have begun issuing partnership certificates to same-sex couples.

Discrimination protections[edit]

LGBT flag map of Japan

As of 2018, sexual orientation is not protected by national civil rights laws, which means that LGBT Japanese have no legal recourse when they face such discrimination in such areas as employment, education, housing, health care and banking.[22]

However, cases of discrimination on the basis of sexual orientation remain relatively uncommon in Japan. Similarly, the Japan Self-Defense Forces, when being asked about their policy toward gays and lesbians following the U.S. debate during the Clinton presidency, answered that it was not an issue, and individuals within the forces indicated that as long as same-sex relations did not lead to fights or other trouble, there were few, if any, barriers to their inclusion in the armed services.[23]

The Japanese Constitution promises equal rights and is interpreted to prohibit discrimination on all grounds. However, homosexual and transgender persons can experience physical, sexual and psychological violence at the hands of their opposite-sex or same-sex partners, but receive no protection from the law. Same-sex partners are excluded from the Law for the Prevention of Spousal Violence and the Protection of Victims and generally lack safe places where they can seek help and support. Japan is a party to the United Nations International Covenant on Civil and Political Rights (ICCPR), which also comprehensively bans discrimination.[24]

While the Equal Opportunity Law has been revised several times over the years to address sex discrimination and harassment in the workplace, the Government has refused to expand the law to address discrimination against gender or sexual identity.[25]

In 1990, the group OCCUR (Japan Association for the Lesbian and Gay Movement)[26] won a court case against a Tokyo government policy that barred gay and lesbian youth from using the "Metropolitan House for Youth". While the court ruling does not seem to have extended to other areas of government-sponsored discrimination, it is cited by the courts as a civil rights case, and the Tokyo Metropolitan Government has since passed legislation banning discrimination in employment based on sexual orientation and gender identity.[27] Shibuya ward also bans sexual orientation discrimination in the provision of goods and services.[27]

Since autumn 2003, the Urban Renaissance Agency, the government agency that operates government housing (公団住宅), has allowed same-sex couples to rent units the same way as heterosexual couples at any one of the over 300 properties that it operates. This opened the way for more such action, as the Osaka Government in September 2005 opened the doors of its government housing to same-sex couples.[28]

In 2013, Yodogawa-ku, Osaka became the first Japanese government area to pass a resolution officiating support for LGBT inclusion, including mandating LGBT sensitivity training for ward staff.[29][30][31][32] Naha followed suit in July 2015.[33]

In 2017, the Education Ministry added sexual orientation and gender identity to its national bullying policy.[27][34] The policy mandates that schools should prevent bullying of students based on their sexual orientation or gender identity by "promoting proper understanding of teachers on … sexual orientation/gender identity as well as making sure to inform on the school's necessary measures regarding this matter."

In October 2018, the Tokyo Metropolitan Government passed a law prohibiting all discrimination on the basis of sexual orientation and gender identity. The law, scheduled to take effect in April 2019, also commits the Government to raise awareness of LGBT people and "conduct measures needed to make sure human rights values are rooted in all corners of the city". The law outlaws expressing hateful rhetoric in public.[35][36]

Adoption and parenting[edit]

Same-sex couples are not allowed to legally adopt in Japan. Lesbian couples and single women are unable to access IVF and artificial insemination.[37]

In April 2017, Osaka officially recognised a same-sex couple as foster parents, making it the first such case in Japan.[38]

Gender identity and expression[edit]

In 2002, a law was passed allowing transgender people who have gone through sex reassignment surgery to change their legal gender. However, sterilization is required, among many other challenging criteria. The law went into effect in 2003.[39] On 24 February 2012, the Hyogo Lawyers' Association pronounced a recommendation for a transgender woman in a male prison to be transferred to a female institution.[40] According to this report, the transgender woman was placed in a male institution because of her legal status of sex, despite having undergone sex reassignment surgery prior to her detention, and had had her body checked by a male member of staff, her hair shaved and was refused any feminine treatment including female clothing.

Since April 2018, transgender people have been covered for sex reassignment surgery as long as they are not receiving hormone treatment.[41] The Ministry of Health, Labor and Welfare has also allowed transgender people to use their preferred names on their health insurance cards.

In June 2018, the Japanese Government enacted a new law lowering the age of majority in Japan to 18. Among others, the new law sets the age of marriage at 18 for both men and women (previously women could marry at the age of 16) and allows 18-year-olds to obtain valid passports, credit cards, etc. The law also allows people diagnosed with gender dysphoria to legally change their sex at the age of 18.[15] The changes are scheduled to take effect on 1 April 2022.

Blood donation[edit]

Gay and bisexual men are allowed to donate blood in Japan following a 6-month deferral period.[42]

Celebrities[edit]

While representations of homosexuals in the Japanese media tend towards caricature on the basis of stereotypes of sexual or behavioral deviance (e.g. the actually straight Hard Gay), there are several examples of transgender persons with popular celebrity status in Japan such as Haruna Ai, Kayo Satoh, Matsuko Deluxe, Ataru Nakamura, Kaba-chan and Ikko. Support for LGBT rights has been expressed by corporate executives and Olympic athlete Dai Tamesue.[43]

Political support[edit]

Tokyo Rainbow Pride in 2016

LGBT rights are rarely discussed or debated publicly, and most political parties do not make any formal position, in favor of or in opposition, to LGBT rights in their party's platform or manifesto. However, some parties have responded to enquiries concerning same-sex marriage policy: the Liberal Democratic Party has indicated opposition to legalizing it, and the Constitutional Democratic Party and the Social Democratic Party have indicated support for legalization, while the Communist Party has indicated support for legalizing same-sex civil unions.[44]

In 2001, the Council for Human Rights Promotion, under the Ministry of Justice, recommended that sexual orientation be included in the nation's civil rights code, but the Diet refused to adopt the recommendation.

In 2003, Aya Kamikawa became the first openly transgender politician to be elected to public office in Japan, the Setagaya Ward Assembly. She initially ran as an Independent but expressed support for the now defunct Rainbow and Greens Party of Japan and later unsuccessfully ran for the National Parliament as a member of the Democratic Party of Japan.

In 2005, Kanako Otsuji, from the Osaka Prefectural Assembly, became the first homosexual politician to formally come out at the Tokyo Gay Pride Festival.

In 2011, Taiga Ishikawa became the first openly gay candidate elected to office in Japan, specifically as the representative for the local assembly of Toshima Ward.[45] He came out publicly in his book "Where Is My Boyfriend" (2002), and started a non-profit organization that sponsors social events for gay men in Japan.

At the 2016 House of Councillors election, the conservative governing Liberal Democratic Party included "promoting understanding of sexual diversity" in its platform, a move that would have been "unthinkable" in earlier times and that lawmaker Gaku Hashimoto attributed in part to burnishing the country's international image in advance of the 2020 Summer Olympics in Tokyo.[2]

In March 2017, Tomoya Hosoda was elected to the Iruma Assembly, in the prefecture of Saitama. Hosoda is believed to be the first openly transgender man elected to public office in the world.[46]

During the country's 2017 general election, Governor of Tokyo Yuriko Koike's newly launched Party of Hope pledged the elimination of LGBT discrimination in its manifesto.[47]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1880; was illegal from 1872–1880; before that there were no laws forbidding same-sex relationships)
Equal age of consent Yes (Since 1880)
Anti-discrimination laws in employment No/Yes (In Tokyo)
Anti-discrimination laws in the provision of goods and services No/Yes (In Tokyo from 2019)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No/Yes (In Tokyo from 2019)
Same-sex marriage(s) No
Recognition of same-sex couples Yes/No (Some cities and wards offer same-sex partnerships. While none holds any legal weight, they give couples access to very limited benefits)
Stepchild adoption by same-sex couples No
Joint adoption by same-sex couples No
Lesbian, gay and bisexual people allowed to serve in the military Yes
Right to change legal gender Yes (Since 2003; under certain restrictions (must undergo surgery, sterilization and have no children under 20))
Conversion therapy on minors and adults banned No
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No (Banned regardless of sexual orientation)
MSM allowed to donate blood Yes/No (6-month deferral period)

See also[edit]

References[edit]

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  2. ^ a b "Japan's conservative ruling party cites 'gay rights' in manifesto in bid to burnish image overseas". South China Morning Post. 7 July 2016. Retrieved 7 October 2017.
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  6. ^ "Archived copy" (PDF). Archived from the original (PDF) on 16 November 2013. Retrieved 14 October 2013.
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  14. ^ "H-Net Reviews". H-net.org. Retrieved 20 January 2011.
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  19. ^ Japan to allow its citizens same-sex marriage - with foreign partners
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  23. ^ "Archived copy" (PDF). Archived from the original (PDF) on 10 November 2013. Retrieved 20 November 2011.
  24. ^ "Japan: Governor Should Retract Homophobic Comments | Human Rights Watch". Hrw.org. 2011-02-01. Retrieved 2014-06-16.
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  30. ^ Nikkei (September 2, 2013). "大阪市淀川区がLGBT支援宣言 (Yodogawa-ku passes LGBT support declaration)". GladXX.
  31. ^ Andrew Potts (September 11, 2013). "Osaka district becomes first Japanese government area to support LGBT inclusion". Gay Star News.
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  33. ^ "Naha city makes LGBT City Support Declaration". Retrieved 8 April 2018.
  34. ^ "Japan: Anti-Bullying Policy to Protect LGBT Students". 24 March 2017. Retrieved 8 April 2018.
  35. ^ Tokyo: New Law Bars LGBT Discrimination. Human Rights Watch, 5 October 2018
  36. ^ Tokyo adopts ordinance banning discrimination against LGBT community. The Japan Times, 5 October 2018
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  38. ^ "Osaka the first city in Japan to certify gay couple as foster parents". 6 April 2017. Retrieved 8 April 2018 – via Japan Times Online.
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  40. ^ "Hygo". Retrieved 8 April 2018.
  41. ^ Japan’s social security net for transgender people improving but obstacles loom for seniors
  42. ^ "エイズ、肝炎などのウイルス保有者、またはそれと疑われる方" (in Japanese). Japanese Red Cross Society. Retrieved 2016-06-14. ... 輸血を必要とする患者さんへの感染を防ぐため、過去6カ月間に下記に該当する方は、献血をご遠慮いただいています。... 男性どうしの性的接触があった。 (Translation: To prevent infecting patients requiring blood transfusion, those who match any of the following within the last six months should refrain from donating blood. ... Sexual contact between two males.)
  43. ^ Snow, Nancy (30 September 2017). "Japan's race for the LGBT gold in Asia". Japan Today. Retrieved 16 October 2017.
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  46. ^ "Japan becomes first country in the world to elect transgender man to a public office". 18 March 2017. Retrieved 8 April 2018.
  47. ^ Reynolds, Isabel; Nobuhiro, Emi (6 October 2017). "Japan's Opposition Unveils 'Yurinomics' Platform to Challenge Abe". Bloomberg. Retrieved 6 October 2017.

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