Author: Yasuo Takao, Curtin University
While the public in some countries — such as the United States — are split over the issue of homosexuality, Japan’s conservative values dominate the conversation. The values reflected in public opinion are not divisive enough to signal to national policy makers and interest groups that traditional tolerance needs to progress to legal recognition. The distribution of citizens’ values still advantage the ruling conservative party and the national government is very reluctant to manage a new redistribution of social values.
The Keikan (sodomy) Code of 1872 is the only anti-homosexual statute Japan has had in its history. It was revoked shortly after by the 1880 Penal Code and today, Japan’s legal system largely ignores sexual minority issues, while not explicitly criminalising homosexuality.
As same-sex marriage is neither legalised nor prohibited at a national level, it has left urban governments with the opportunity to make their own decisions at the local level and ensure the enhancement of the community’s diverse lifestyles. Policymaking about LGBT rights has become rather localised in Japan.
Shibuya Ward in Tokyo led this change by adopting an ordinance-based same-sex partnership policy in March 2015. The local government sought to meet the needs of community diversity in an autonomous policy process with little interference from the national government. Generally speaking, local governments can pragmatically deal with policy problems in the immediate area. Some local actors, such as Shibuya Ward, have been able to identify this policy opportunity and adapt it to meet their locally specific needs without superseding the hierarchy of central–local government relations.
When taking the initiative for same-sex partnership, the policymakers of Shibuya took advantage of an ordinance-based legislative right given to local authorities. The enactment of the ordinance constrains the national government’s control over local discretion as long as the local enactment is consistent with national law. Shibuya Mayor Ken Hasabe successfully framed the issue of same-sex partnership by describing the tangible hardships faced by the minority groups — such as hospitals’ refusal to give visitation rights to their partners at intensive care units — rather than promoting it as a matter of abstract civil rights. His proposal gained strong support from the public and the Ward Assembly.
In Shibuya Ward’s case, there was no overarching ideological conflict such as that between secular and Christian morality in other areas. The formation of the same-sex partnership policy was largely determined by very specific factors involved in the impact of the certificate issuance on various stakeholders. The intention of the ordinance was not focused on the legal status of same-sex partnerships, but rather to promote the social recognition of these partnerships. Social recognition helps to shape values of the community and was expected to offer practical solutions to the everyday problems faced by same-sex couples, such as co-signing of tenancy agreements for rental housing and family-related employment benefits.
Yet future prospects for LGBT issues in Japan indicate the potential for the policy area to become highly salient and integrate concerns of morality into politics at the national level. As levels of public acceptance toward homosexuality continue to increase in Japan, groups opposed to LGBT rights such as Nippon Kaigi, are likely to expand the scope of the debate. Party politics could be dragged into the patterns of morality politics.
The transnational effects of LGBT movements are another equally important influence on policy change in Japan. Domestic LGBT groups are increasingly working with international non-governmental organisations such as the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) and The OutRight Action International. These non-governmental organisations hold consultative status within the United Nations Economic and Social Council. They have held certain countries accountable for inaction, gaining leverage for policy change through their alliance with specialised UN agencies.
Japan is certainly prone to such international pressure and may well seek to maintain its international reputation through pursuing same-sex marriage legislation at the national level. The path to achieving marriage equality in Japan will depend in part on how this outside pressure interacts with an evolving domestic debate.
Yasuo Takao is a Senior Lecturer at the School of Media, Culture and Creative Arts at Curtin University, Perth.