Breaking with Conservatism?

The Japanese Supreme Court has been described as “the most conservative constitutional court in the world”. And, though lower courts can sometimes be more active, the Japanese judiciary as a whole tends also to be referred to as conservative. However, recent developments challenge this view. In particular, Japanese courts have begun to issue rulings in favour of the rights of sexual and gender minorities on issues like same-sex marriage and gender recognition. Do these decisions suggest that the conservatism of the Japanese judiciary (and specifically of the Supreme Court) has been overstated – or are they signs of change? In this post, we examine recent moves by the courts in Japan and consider possible explanations of their actions.

Recent developments in the Japanese courts

Despite having the power of constitutional review under Article 81 of the 1946 Constitution, the Japanese Supreme Court has only struck down 13 laws in its history. This limited use of its review power often draws criticism, though such criticism can seem overstated, especially when compared with countries with very active judiciaries. The often deferential approach of the Japanese judiciary takes place in the context of a political system dominated by a single party, the Liberal Democratic Party (LDP), which is generally considered conservative and has held power almost continuously since 1955.

In particular, Japanese courts have generally been reluctant to rule that laws and regulations concerning family and gender issues violate the Constitution. For example, the Japanese Supreme Court upheld the provisions of the Civil Code that treated out-of-wedlock children less favourably than those born within wedlock for inheritance purposes in 1995, though these provisions were eventually held unconstitutional in 2013. The Court also declined to find unconstitutional the requirement that married couples share the same surname in 2015 and 2021. In 2019, the Supreme Court rejected a constitutional challenge to a requirement under the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder requiring transgender persons to have “no reproductive glands”, or have them be permanently non-functional, to change their legal gender recognition by the order of a family court.

However, recent developments suggest a possible shift in approach, which first appeared evident in non-constitutional cases. In March 2021, the Supreme Court confirmed that a partner in a de facto same-sex couple could claim damages for infidelity in the same manner as opposite-sex couples. In July 2023, the Supreme Court ruled illegal the Ministry of Economy, Trade and Industry’s refusal to allow a transgender female employee, who had not undergone gender reassignment surgery and was still listed as male on her family register, to use the women’s restroom near her office. In March 2024, the Supreme Court held that same-sex couples in a de facto marriage should be included as recipients of crime victim compensation for bereaved family members.

This trend has reached constitutional cases. In October 2023, the Supreme Court found unconstitutional the legal provision that required removal of reproductive glands as a condition for legal change of gender, which it had itself ruled constitutional four years earlier. The Supreme Court held that freedom from bodily invasion is guaranteed by Article 13 of the Constitution – which requires respect for people as individuals and consideration of their right to life, liberty and the pursuit of happiness – and that treatment in accordance with one’s gender identity is an important legal interest united with one’s personhood. The Court then reached a unanimous conclusion that requiring the removal of reproductive glands as a condition for gender reassignment was constitutionally impermissible as an excessive restriction.

We can also observe significant activity in the lower courts regarding same-sex marriage. The Japanese legal system grants legal marriage only to opposite-sex couples. In 2019, Marriage for All Japan (MFAJ) was created to advocate for same-sex marriage, and six lawsuits were filed, led by MFAJ, challenging the constitutionality of the current system under Article 13, Article 14 (which protects equality) and Article 24 (which protects marriage rights). Of the six rulings at district court level, only the Osaka District Court found that the current laws that do not recognise same-sex marriage are entirely constitutional, while two courts found the laws to be unconstitutional and three courts held them to be in an “unconstitutional state”. Further, the Sapporo High Court on 14 March 2024, in the first decision at high court level, also ruled them unconstitutional. One issue in these cases is that the wording of Article 24(1) of the Constitution could be read to limit marriage to opposite-sex couples (“[m]arriage shall be based only on the mutual consent of ‘both sexes’”). However, the Sapporo High Court interpreted Article 24(1) as guaranteeing same-sex marriage to the same extent as opposite-sex marriage.

Possible factors behind the judicial decisions

Why have the Japanese Supreme Court and lower courts, once famous for their conservatism, issued pro-rights decisions for sexual and gender minorities in recent years? In some cases, such as those involving same-sex marriage, the Japanese courts are addressing issues that they have not previously encountered. Nonetheless, the findings of unconstitutionality in respect of the current marriage laws by multiple lower courts, including the Sapporo High Court, are significant. Moreover, in other cases, the courts are revisiting previously considered issues and reaching different conclusions, such as in the contrasting 2019 and 2023 rulings on legal gender recognition for transgender people. Here, we propose some possible explanations for this apparent shift.

One possible explanation is the growing social acceptance of sexual minorities in Japan. Although national legislative action has been slow, a 2023 survey showed that about 68% of all Japanese citizens, and 84% of those aged 18-34, favour the introduction of same-sex marriage. Moreover, nearly 460 municipalities have adopted partnership systems that officially recognize same-sex couples, though this is not equivalent to recognition under national law and does not confer the same rights as marriage. In 2017, the Japan Business Federation (Keidanren), a major economic organisation, emphasised the urgent need for a diverse and inclusive society with greater acceptance of sexual minorities. The Diet in June 2023 also passed an Act for promoting “understanding” of sexual and gender minorities (though the Act has been criticised as it does not provide for same-sex marriage, or any binding requirements of non-discrimination towards sexual and gender minorities). These circumstances may make it easier for the Supreme Court and lower courts to issue decisions that protect the rights of sexual minorities and even encourage them to do so.

A second factor is the maturation of constitutional doctrine in the Supreme Court, and its application to the legal merits of the cases. Over time, the Court has been gradually developing and refining constitutional doctrines, enabling it to address politically controversial issues more convincingly within existing legal frameworks. In particular, the balancing tests developed by the Supreme Court, while distinct from the European model of structured proportionality, facilitate determinations that regulations imposing severe restrictions on constitutional rights may be unconstitutional. The 2023 transgender rights decision was the culmination of the development of constitutional balancing tests, applied to the circumstances of a “harsh” requirement of removal of reproductive glands. The Supreme Court has also developed constitutional doctrines regarding Article 24 on marriage and family, as well as tests for equality under Article 14, which lower court rulings applied to explore the same-sex marriage issue.

Third is the trend among much of the world towards the protection of sexual and gender minorities. Courts in various jurisdictions including Germany, Hong Kong, and elsewhere have ruled that laws requiring surgery for gender reassignment to be recognised are unconstitutional. The introduction of same-sex marriage has also gained traction not only in Western countries but also in Asia, including Taiwan, Nepal and Thailand. Human rights treaty bodies and regional courts such as the European Court of Human Rights and the Inter-American Court of Human Rights have also recognised human rights obligations relating to these issues. The UN Human Rights Committee has urged Japan to ensure that same-sex couples can enjoy all rights under the International Covenant on Civil and Political Rights, including same-sex marriage, and Japan has received similar recommendations during periodic reviews at the UN Human Rights Council. The Japanese Supreme Court and lower courts are sometimes attentive to international legislative and case law developments, and certain developments have been referred to in their rulings.

Fourth is the evolution in approaches to constitutional litigation. In 2018, the organisation “Call 4” was established as a platform to support litigation to protect the rights of citizens through crowdfunding. This alleviates financial burdens on lawyers and plaintiffs and also helps develop strategic litigation that is more visible and garners broader support with digital platforms. Many significant recent constitutional lawsuits have leveraged the Call 4 platform, including the MFAJ’s lawsuits on same-sex marriage and another lawsuit challenging the constitutionality of the requirement of the same surname for married couples, recently filed in March 2024 (the third round of litigation relating to this). It should also be noted that the development of constitutional doctrines has increased the number of avenues for lawyers to present compelling constitutional arguments to the courts.

Fifth, changes in the political landscape may be relevant. The right wing of the LDP, especially the Seiwa-kai faction led by powerful politicians including former prime minister Shinzō Abe, has long advocated for conservative views on gender and family issues. As the ruling party, the LDP has the potential to intervene in Supreme Court appointments through the Cabinet. However, the current prime minister since 2021, Fumio Kishida, is from the more moderate Kōchikai faction. Further, after former prime minister Abe’s assassination in 2022, it came to light that the Seiwa-kai had close ties with the Unification Church, which has been criticised for controversial fundraising practices and alleged abuse towards its followers. In 2023, it was revealed that the Seiwa-kai, along with other factions, may have broken the law in its management of political funds. The Seiwa-kai was ultimately dissolved in January 2024 (in addition to some other LDP factions). It might be argued that the weakening of conservative politicians in the LDP has reduced the potential risk of backlash from rulings that advance rights.

Some of the factors mentioned could facilitate a more active stance by the Japanese judiciary generally, not only regarding sexual and gender minority rights. This trend appears in some recent decisions: in 2022, the Supreme Court found unconstitutional an Act that prevented Japanese people living overseas from voting in national review of Supreme Court justices; and recently, in July 2024, it ruled unconstitutional the (previously repealed) Eugenic Protection Act, which had enabled forced sterilisation, and ordered the government to pay damages for victims, removing the limitation period. The fact that – of the 13 statutes the Supreme Court has held unconstitutional in its 77-year history – three are from the most recent two years may point to a wider shift in its institutional role.

Conclusion

Do recent developments indicate some kind of sustained transformation in the Japanese judiciary? The factors discussed, including the advancement of constitutional doctrines, suggest the possibility that a meaningful change has occurred. However, it may be premature to draw any firm conclusions. It is possible to argue that the Supreme Court and lower courts have only declared laws unconstitutional in extreme cases that are clearly untenable within the existing legal framework. Ongoing cases will be important for assessing whether and to what extent the Supreme Court has altered its approach, and whether any changes are likely to be sustained.

These cases include the same-sex marriage challenge and litigation around gender reassignment. We consider that it is more likely than not that the Supreme Court will find that the current law that does not recognise same-sex marriage is unconstitutional. However, it remains uncertain whether the Supreme Court will mandate that same-sex couples be granted the same legal recognition as opposite-sex couples (marriage), or permit a civil partnership system with similar substantive rights that is different from marriage. Regarding gender reassignment, the Supreme Court has ruled unconstitutional the requirement for the removal of reproductive glands, but it has not yet ruled on the constitutionality of a separate requirement for genitalia to resemble those of the changed gender. On family issues, it is still unclear whether the Court will uphold the constitutionality of the law requiring married couples to share the same surname, despite concerns about gender discrimination. Nonetheless, it is no longer possible to predict that the Japanese judiciary will simply make conservative decisions in these socially charged cases.