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Asian Lawyers Exchange Meeting 3 "Seminar on LGBT"

On May 30, 2022, ALN (Asian Lawyers Network) members participated in an online seminar organized by the University of Tokyo aiming at providing the opportunity for Asian lawyers and experts to exchange information and share knowledge. Mr. Akiyoshi Miwa, a lawyer who has handled many LGBT cases and belongs to the LGBT Rights Project Team of the Japan Federation of Bar Associations as well as the LGBT Support Lawyers Network, was invited as a lecturer and talked about LGBT rights and the current situation in Japan. In addition, Mr. Guo Lifu, a graduate student at the University of Tokyo, presented research results related to transphobia in China and Japan.


Below is a summary of the lecture, presentation, and Q&A session.


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Lecture on LGBT


LGBT persons living in Japan


According to various surveys, the percentage of LGBT persons in Japan is about 3 to 5%, or 1 in 20 to 30 people. In addition, according to a national survey conducted by the P&G Japan in 2021, more than 40% of the respondents answered that there are no LGBT+ persons around them. In other words, it can be said that the existence of LGBT persons is not visible in society in Japan.


What is the position of LGBT in Japanese society?

Because their existence is not visible, there remains a deep-rooted sense of discrimination against LGBT persons. A Diet member of the Liberal Democratic Party has once said, ``Same-sex couples are not productive (because they do not have children),” and politicians often make such discriminatory remarks. It has been reported that in a 2016 survey conducted by the Japanese Trade Union Confederation, more than 30% of the respondents said, "I would hate it if my supervisors and colleagues were LGBT."


Many of the parents of LGBT people are not LGBT themselves, so it is difficult to get their families to understand, and the mental burden on young LGBT people is particularly heavy. Another problem is the lack of education on LGBT in schools. Even in the workplace, many LGBT people are having troubles. According to a survey conducted by the Japanese government in 2019, about 40% of LGB people and about 50% of trans people have problems at work. Specifically, there are difficulties in finding a job, welfare programs, harassment, and using facilities such as toilets. And same-sex couples are not allowed to marry and are forced to lead precarious lives.


Discrimination against transgender people is also serious. Because there are many statements such as, "Transgenders threaten the safety of women" and "When transgenders use women's restrooms, they cannot be distinguished from sex offenders dressed as women,” transgender people who are discriminated against have no self-esteem and tend to be mentally unstable. According to a street survey (2001), about six times as many homosexuals and bisexuals have attempted suicide as heterosexuals. About 10 times more transgender people have attempted suicide than cisgender heterosexuals.


LGBT and the legal system

Under the Japanese constitution, all rights are guaranteed to the people, and it can be interpreted that LGBT people are no exception. However, the only legislation that focuses on the existence of LGBT people is the ``Law Concerning the Gender Treatment of Persons with Gender Identity Disorder (Special Law for Persons with Gender Identity Disorder).


If the following requirements are met, legal procedures can be taken to treat men as women and women as men.

  1. 18 years of age or older

  2. Currently unmarried

  3. Currently have no minor children

  4. Have no gonad function

  5. Have a genitalia resembling that of another gender

There is a strong opinion that these requirements are too strict, and lawsuits have been filed frequently alleging that requirements 3, 4, and 5 violate the Constitution, but the Supreme Court has ruled that they do not violate the Constitution.


Also, same-sex couples are not allowed to marry. Marriage is established by submitting a marriage registration to the municipality, but if it is submitted by a same-sex couple, the marriage registration will not be accepted. As a result, same-sex couples face legal barriers such as:

  • Inheritance is not possible

  • Not allowed to give surgical consent when the patient is unconscious

  • Unclear whether they can receive protection from the DV Prevention Act

  • Unable to move into public housing

  • Unable to receive preferential tax treatment

  • Unable to obtain the status of residence of "Spouse or Child of a Japanese National”

  • Female couples cannot jointly become parents

Some couples adopt children to eliminate the disadvantage. Currently, five courts across Japan (Sapporo, Tokyo, Nagoya, Osaka, and Fukuoka) have filed lawsuits demanding compensation from the government, claiming that the current law, which does not recognize same-sex marriage, violates Articles 14 and 24 of the Constitution. (“Freedom to Marry For All” lawsuit).


Changes in society surrounding LGBT

In 2015, the government issued a notice to educational institutions stating that LGBT students may need special support in school life. The government requested schools to take measures that consider the feelings of students on a case-by-case basis. In this regard, individual support for transgender students is progressing.


In addition, the Power Harassment Prevention Act came into effect in June 2020. It is clearly stated that insulting speech and behavior regarding sexual orientation and gender identity (SOGI harassment) and outing (disclosing sexual orientation and gender identity against the will of the person concerned) can be harassment. Under the Act, employers are obligated to educate their employees, establish a system for receiving consultations, and respond promptly and appropriately.


Moreover, local governments are proceeding with the introduction of same-sex partnership systems. As of March 31, 2022, it has been introduced in 209 municipalities and has 2,832 users. The Tokyo metropolitan government is also planning to introduce it within this year, and the population coverage rate is expected to increase significantly. However, since the effect of marriage does not occur at all, it cannot be a substitute for marriage. In many cases, same-sex couples submit a declaration that they are same-sex partners to a government office, and the government office certifies that it has been received.

On March 17, 2021, in the "Freedom of Marriage for All" lawsuit, the Sapporo District Court made a tentative decision, ruling that the current law, which does not recognize same-sex marriage, violates Article 14, Paragraph 1 of the Constitution (principle of equality). The next judgment will be handed down by the Osaka District Court on June 20, 2022.


Under such circumstances, the results of public opinion polls show that the understanding of same-sex marriage in Japan is progressing, and no matter what the public opinion polls are, more people are in favor of same-sex marriage.


On June 3, 2019, the opposition parties submitted the Marriage Equality Bill to the Diet. The bill allows same-sex marriage, but because the Liberal Democratic Party is not in favor of same-sex marriage, it has not even been discussed since. In this way, the situation in which LGBT people are placed in Japan is quite difficult, but it is gradually changing due to citizens' activities.


Q & A Session


[Comment]

Even in universities, many people are being left behind on a daily basis. I'm trying to improve the situation with a group on campus, but it's quite difficult. If nothing changes at the national level, we feel limited.


[Response]


I think that the actions of young people in particular will be very important in the future. Opinion polls show that older men are less tolerant of LGBT issues, but all polls show that people in their teens and twenties are more understanding.

The measures that the government should take will change greatly depending on how proactively young people will tackle it in the future. I have high hopes.


[Question 1]

Do you need a guardian when using the same-sex partnership system in Japan?


[Response]

In Shibuya Ward, the system cannot be used without a guardianship contract. The system’s approval rating is low because the mechanism is troublesome and costs money. In other local governments, the system can be used without a guardianship contract. When a man and woman get married, they can fill out a free form at the government office and get married, but it costs tens of thousands of yen for same-sex couples. Questions are often raised about it.


[Question 2]

What about the current situation regarding understanding trans people and gender identity disorders?


[Response]

In order to eliminate discrimination, I think that laws against discrimination are necessary. The opposition parties are talking about introducing anti-discrimination laws, but the Liberal Democratic Party and Komei Party do not agree.


There is no law to eliminate discrimination, so the current situation is that if there is discrimination on an individual basis, the only way to deal with it is to file a claim for damages and ask the court to help eliminate discrimination. The hurdles are high in a trial where the names and faces of LGBT people are revealed. It is important to create laws and systems that eliminate discrimination.


[Question 3]

Personally, if same-sex marriage were adopted in Japan, would the Supreme Court make a decision? Or do you think the bill will be passed in the Diet? In Japan, which is easier to pass, judicial or legislative?


[Response]

We are considering the route of making laws and the route of litigation in court, but I think the court route is actually more likely. However, in the long run, it is necessary to have the Diet enact a same-sex marriage law, so it is necessary to proceed with both.


[Question 4]

What are some examples of civil damages? Could you tell me the amount of compensation?

[Response]


In the case of illegal dismissal, in Japan, a court will be held to force the employee to return to work. Therefore, there are almost no cases where alimony is recognized, even for non-LGBT people. In the case of harassment, compensation for damages is around 1 million yen. I don't think the trial is a deterrent to harassment because the level of compensation is so low.


[Question 5]

What exactly is compensation for damages?


[Response]

In the case of harassment, compensation for causing mental damage/pain. In the case of dismissal, claims for unpaid wages from dismissal to the present. If you win the case, you are likely to get the full amount.



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Presentation on research results related to transphobia in China and Japan


A trans woman from New Zealand named Laurel Hubbard competed in women's weightlifting at the 2021 Tokyo Olympics. As a result of examining data related to it on China's "Weibo" and Japan's "Twitter" during the match, negative comments accounted for more than 80% on both. As for transphobia, there was a strong tendency to talk about it in relation to national politics and ideology rather than discussing the rights of trans women. In China, there were many citations of alternative right-wing discourses in the United States, and the notion that the values ​​of white leftists and LGBT/feminist advocates are threatening the values ​​of fairness and equality stood out. There was also a strong tendency to talk about female athletes as China's national identity. The notion that the participation of trans women as female athletes is threatening China's national security and pride was conspicuous. The term “white left” (white leftist liberalists) is often used these days, but critical discourses such as those that white left supports LGBT and feminist movements and threatens communism in China are conspicuous.


On the other hand, Japan tend to reject excessive “progressiveness” (global elite) and excessive “conservatism”, and promote its own unique conservative approach as a “third way” that differs from both China and American whites. There are few sensible conflicts like communism and capitalism, but the most retweeted content was criticism of the global elite, such as "Don't let the word "diversity" fool you. As a whole, I get the impression that conservative discourse has risen at once through transphobia, not the discussion of transphobia. In addition, there was a noticeable tendency for the term feminism to be misappropriated.


Comments from Chinese guest participant


The LGBT situation in China and Japan is very similar. The same goes for the fact that it is not visible in society. Sex education in China, like Japan, is not very advanced. Media screening and censorship is strict, and regulations on homosexual dramas are also strict.


Regarding same-sex marriage, a gay couple filed a lawsuit in China in 2015, but the lawsuit was lost because China's marriage law clearly stipulates that one man and one woman should be married. In 2019, the LGBTQ community launched a campaign to revise its civil law in China, and 180,000 signatures were gathered. Although the legislative committee officially announced the signing, the law did not change. In the 2020 case where a couple gave birth to a child in the United States and divorced in China, lawsuits for custody were filed and public debates unfolded. The case eventually involved legal scholars and legislators. In China, it may be more efficient to engage in activities related to family members (parents, children, etc.) rather than discussing same-sex marriage explicitly. It is becoming difficult for Chinese NGOs and civil society groups to operate due to political reasons. Personally, I am also involved in activities in Japan, and I think it is important to have a community of LGBT-friendly lawyers.


Comments from Mr. Miwa

In terms of family, I try to emphasize that that same-sex marriage is not just a problem for two people, but also a connection with family and society. For example, I tell people that allowing same-sex marriage would only increase the number of happy couples. Originally, human rights should be recognized even if others do not recognize them. In order to increase understanding in society, we must be aware of our relationships with those around us. I am encouraged by the fact that so many people are raising their voices.


Q & A Session

[Question 1]

In addition to the trend of promoting same-sex marriage, I believe there are also legal arguments against marriage itself. Could you tell us about such arguments in China, Taiwan, and Japan?


[Response]

1. In Taiwan, three laws were actually proposed before the same-sex marriage law. In addition to the current same-sex marriage, there were proposals for a partnership system and a family system (not just marriage, but a partner system that connects family relationships), but the marriage system was reflected and criticized, and eventually same-sex marriage was adopted. Movement groups trying to promote same-sex marriage also try not to absolutize the values ​​of marriage and the family.


2. In Japan, the marriage system has traditionally been criticized, mainly from the point of view of feminism. Critics say the promotion of same-sex marriage widens a problematic system even through they acknowledge that same-sex couples are excluded from the marriage system. I am trying not to send the message that the marriage system is a wonderful system, but that it is discrimination.


3. In China, there is a lot of discussion within the community of same-sex couples. I think it will take time to form an important discussion to form a common understanding of the marriage system. One group counted the rights that only those who have a spouse have under current Chinese law, and there were 3,000 items. The marriage system recognizes a great many rights. I want to spread the word about the inequalities in the marriage system because many people are still unaware of it.

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