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LGBTQ rights in Japan

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This article is about LGBT legal rights in Japan. For a general overview, see Homosexuality in Japan.

LGBTQ rights in Japan
Japan
StatusLegal
Gender identityChange of legal sex allowed since 2003, following sex reassignment surgery
MilitaryYes
Discrimination protectionsSexual orientation protected in some cities, though not nationally[1]
Family rights
Recognition of relationshipsNo recognition of same-sex relationships

Lesbian, gay, bisexual, transgender (LGBT) persons in Japan may face legal challenges not experienced by non-LGBT persons. Same-sex sexual activity was legalized in 1880 after the installation of the Napoleonic Code and the age of consent is currently equalized.[2] Same-sex couples and households headed by same-sex couples are ineligible for the legal protections available to opposite-sex couples. Japanese culture and major religions originated in and imported to Japan do not have a history of hostility towards homosexuality,[3] and a majority of Japanese citizens are reportedly in favor of accepting homosexuality, with a recent poll indicating that 54 percent agreed that homosexuality should be accepted by society whilst 36 percent disagreed, with a large age gap.[4] Although many political parties have not openly supported or opposed LGBT rights, there are several openly LGBT politicians joined 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 is banned in certain cities.[5]

See also: Age of consent in Asia

The age of consent in Japan is 13 years old under the Japanese national criminal law code. However, all municipalities and prefectures have their own particular laws such as Tokyo's "Youth Protection Law" which prohibit adults from having sex with youths who are under 17 years old. As an added note, even though the age of consent in Japan can be 13, the age of majority is 20 for voting. The age of adulthood is considered 20 and driving age is 18. Japan's "Prostitution Prevention Act" (1958) only prohibits actual sexual intercourse (or sex controlled by organized crime). That law defines as "true" sexual conduct between men and women, and not to "imitation" between same-sex persons, so homosexual prostitution is not prohibited directly.[6][7]

There are no explicit religious prohibitions against homosexuality in the traditional religion of Japan, Shintoism, or in the imported religions of Buddhism (but 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 Qing legal codes. But this provision was repealed only seven years later by the Penal Code of 1880 in accordance with the Napoleonic Code.[8] 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.

Civil rights

As of 2000, 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.[9]

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.[10]

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.[11]

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.[12]

In 1990, the group OCCUR (Japan Association for the Lesbian and Gay Movement) [13] 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 city government of Tokyo has since passed legislation banning discrimination in employment based on sexual identity.

Since the autumn of 2003, the Urban Renaissance Agency, the government agency that operates the 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.[14]

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.[15][16][17][18]

Celebrities

Whilst 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 or transvestite persons with popular celebrity status in Japan such as Matsuko Deluxe.

Transgender issues

Main article: Legal aspects of transsexualism § Japan

In 2002, a law was passed allowing transgender people who have gone through sex reassignment surgery to change their legal gender. The law went into effect in 2003.[19] On 24 February 2012, Hyogo Lawyers' Association pronounced a recommendation for a transgender woman in a male prison to be transferred to a female institution.[20] 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.

Political support

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 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.[21]

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 has refused to adopt the recommendation.

In 2003 Aya Kamikawa became the first openly transgender politician to be elected to public office in Japan, Tokyo's municipal 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 for Toshima Ward.[22] 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.

Marriage

Main article: Same-sex marriage in Japan

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 731-737 of the Japanese Civil Code restrict marriage to opposite-sex unions. 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.[23]

As of March 2009, Japan is set to allow Japanese nationals to marry same-sex partners in countries where same-sex marriage is legal. The justice ministry has instructed local authorities to issue key certificates—which states 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 by some[who?] as a first step toward eventual legalization of gay marriage in Japan.[24]

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 would allow 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 hospital. The Shibuya initiative is considered a significant step towards lesbian and gay partnership rights in Japan.[25] 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.[26]

Summary table

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; was illegal from 1872-1880; before that there were no laws forbidding same sex relationships)
Anti-discrimination laws in employment No (Pending)
Anti-discrimination laws in the provision of goods and services No
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No
Same-sex marriage(s) No
Recognition of same-sex couples No (Some cities and prefectures give same-sex couple partnership certification but it has no legal standing)
Both joint and step adoption by same-sex couples No
Gay people allowed to serve in the military Yes
Right to change legal gender Yes (Since 2004)
Commercial surrogacy No
Access to IVF for lesbians No
MSM allowed to donate blood No (6 month deferral period)[27]
Automatic parenthood for both spouses after birth No

See also

References

  1. ^ "ILGA State sponsored homophobia 2008.doc" (PDF). Retrieved 20 January 2011.
  2. ^ "H-Net Reviews". H-net.org. Retrieved 16 June 2014.
  3. ^ Sam Shoushi* (25 March 2008). "Japan and Sexual Minorities | ヒューライツ大阪". Hurights.or.jp. Retrieved 16 June 2014.
  4. ^ "The Global Divide on Homosexuality". Pew Research Center. 4 June 2013. Retrieved 24 February 2016.
  5. ^ http://ilga.org/historic/Statehomophobia/ILGA_State_Sponsored_Homophobia_2008.pdf
  6. ^ "Japan Legal FAQ – Is the age of consent in Japan really 13?". Legal.3yen.com. 27 July 2005. Archived from the original on 25 October 2005. Retrieved 16 June 2014. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  7. ^ "World Legal Survey". The International Lesbian and Gay Association. 6 August 1998. Archived from the original on 13 June 2005. Retrieved 12 January 2015. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  8. ^ "H-Net Reviews". H-net.org. Retrieved 20 January 2011.
  9. ^ "Gay scene: Tolerance, legal limbo". Jun Hongo. Japan Times. Tuesday, Dec. 23, 2000
  10. ^ http://www.hawaii.edu/hivandaids/LGBT_Rights_in_Japan.pdf
  11. ^ "Japan: Governor Should Retract Homophobic Comments | Human Rights Watch". Hrw.org. 1 February 2011. Retrieved 16 June 2014.
  12. ^ http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/Japan_LBT_May09_japan_cedaw44.pdf
  13. ^ NPO Occur
  14. ^ From the book on same-sex partnership in Japan 「同性パートナー生活読本」<http://webcatplus.nii.ac.jp/webcatplus/details/book/6980828.html> by Nagayasu Shibun, 3/2/3003. Published by Ryokufuku Publishing, Tokyo <http://www.ryokufu.com/top.html>
  15. ^ Preston Phro (6 September 2013). "Osaka ward first governmental body in Japan to officially declare support for LGBT community". RocketNews24.
  16. ^ Nikkei (2 September 2013). "大阪市淀川区がLGBT支援宣言 (Yodogawa-ku passes LGBT support declaration)". GladXX.
  17. ^ Andrew Potts (11 September 2013). "Osaka district becomes first Japanese government area to support LGBT inclusion". Gay Star News.
  18. ^ "Yodogawa ward office LGBT support declaration". Yodogawa-ku Municipal website. 1 September 2013.
  19. ^ "What the Diet's been up to lately: revising the law of transgendered people". Mutantfrog.com. 11 August 2008. Retrieved 20 January 2011.
  20. ^ Hygo Lawyers'Recommendation, Yomiuri Journal, 24 February 2012(Japanese)
  21. ^ Inada, Miho (20 September 2013). "Same-Sex Marriage in Japan: A Long Way Away? - Japan Real Time - WSJ". Blogs.wsj.com. Retrieved 16 June 2014.
  22. ^ "Taiga Ishikawa is Japan's first openly gay elected official". Tokyomango. 9 May 2011. Retrieved 16 June 2014.
  23. ^ "The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in Japan" (PDF). Global Rights. October 2008. Archived from the original (PDF) on 30 December 2010. Retrieved 12 January 2015. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  24. ^ "Japan allows its citizens same-sex marriage abroad". Google. Agence France-Presse. 27 March 2009. Retrieved 18 November 2009.
  25. ^ http://www.nytimes.com/2015/02/13/world/asia/tokyo-ward-plans-to-extend-rights-of-gay-couples.html?_r=1
  26. ^ http://en.rocketnews24.com/2015/07/31/tokyos-setagaya-ward-to-begin-legally-recognizing-same-sex-partnerships/
  27. ^ "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 14 June 2016. ... 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.)
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