Rishav Devrani, Poojan Bulani

This article delves into the current status of queer rights in Japan in light of the Tokyo Olympics, 2021. The hue and cry by advocates and activists had created pressure on the Japanese government to pass the Equality Act that widens safeguards for the queer community. Parallel to this, the US Equality Act is one step ahead in protecting queer rights. Finally, the authors lay down a triple-axis of rights for the queer community that highlights the urgency in enacting the said Act.

Introduction

LGBTQIA+ activists around the globe and in Japan had been pressuring the Japanese National Diet for passing the Equality Act, a legislation to ensure non-discrimination against LGBTQIA+ community before the Tokyo Olympics. However, there has been no actualisation of the same. This has brought to light extreme biases and propagandised ignorance prevalent in the political environment of Japan. Time and again, politicians and legislators have made public remarks like labelling same-sex marriage as ‘unproductive’, calling transgenders as ‘too demanding’ and as ‘resisting biology’. Despite being one of the wealthiest nations in the world, Japan has time and again failed its marginalised LGBTQIA+ community. 

Principle 6 of the Olympic Charter, secures a non-discrimination policy on the basis of “sex, sexual orientation, birth or other status” thereby championing inclusivity in all its essence. Trans-athletes have been allowed to participate at the Olympics since 2004 as a consequence of the Stockholm Consensus. As the host nation for the Olympics, 2021, it becomes significant for Japan to abolish discrimination and establish equality for LGBTQI people in the country. 

The authors try to trace Japan’s trajectory towards a non-discriminatory and an inclusive space through an analysis of the realities of the LGBTQI community vis-a-vis the rights that are necessary. Coupled with this, a parallel view of Japan and the USA’s approaches and their efforts towards incorporating equal rights through national legislations that embrace the relationship among gender identity, fluidity, and liberty has been provided. Where sexual orientation and gender identity are not mentioned in Article 14 of Japan’s Constitution that covers right to equality, it becomes pertinent to introduce a more substantive Equality Act.

Japanese Society and Queer Culture

Dated social construct

In Japan, the social constructs of marriage and family are rooted in a traditional setup. Although there is little systemic research on the reasons, many LGBTQIA+ individuals choose to remain closeted due to sociocultural configurations and instances of homophobia in modern Japan. A sociological study revealed that more than 40% of Japanese parents claim that it would be unpleasant to find out if their offspring were homosexual. But positive efforts have also taken place in domains like health, employment and education.  In 2017, the national bullying policy was amended which authorizes schools to address bullying and harassment of students because of their sexual orientation. Similarly, in 2013, the government added a clause to the employment rules that forbade harassment on grounds of gender identification or sexual orientation. Another example is how Ibaraki Prefecture ofJapan has issued “partnership certificates” to same-sex couples that gives them some rights which can be a step in the direction towards equal rights. 

Invisibility

Adding to this, the political representation that could provide them requisite representation is insufficient which adds to the invisibility in plain sight. Human Rights Watch reports that transgender individuals face discrimination because the general populace believes that transgenderism is a mental disorder. It had recommended for Japan to abolish preconditions that push these “psychosocial treatments, hormonal therapies and medical surgeries” onto the sexual minorities and implore the nation to meet international standards as per United Nations.

Media Representation

Representation through social media and other entertainment media plays a pivotal role in solidifying queer rights in Japan. Representation brings relatability, comfort and awareness in the public sphere and can have a colossal impact on public policy. Attesting to the fact, the 2020 Tokyo Rainbow Pride event is a stunning example of this solidarity, representation, and visibility that is often compromised under the Japanese laws.

In the last decade, TV and comics in Japan have become susceptible to the idea of queer representation albeit often for the aesthetic expectation. Pop culture in Japan is welcoming and representative of LGBTQI issues but the reel-representation is still stereotypical and fails to translate into real-representation.

United States v Japan: An Analysis

The United States of America (USA) has often shown and taken a more progressive and substantive approach towards ensuring LGBTQI equality, than its eastern counterpart, Japan.  The Supreme Court of the United States through its landmark ruling on same-sex marriage and the judgment that recognized rights in the workplace have been crucial in paving the way for a national law for the protection of LGBTQIA+ Americans. Currently, the federal law and majority of states do not have non-discrimination laws but the Equality Act aims at amending the Civil Rights Act of 1964 and providing explicit protection against discrimination based on gender identity and sexual orientation. 

Around 3 in 10 LGBTQI Americans report facing difficulties in access to healthcare due to cost issues, 15% of LGBTQI Americans deny going through medical procedures due to the fear of discrimination. The Act would provide an umbrella protection in the context of government funded programs, housing, public accommodation, healthcare, discrimination in public place, etc. 

This Act would also bring down the misuse of the Religious Freedom Restoration Act that was misused by organisations and individuals as they defended their position on grounds of  “religious objection” to limit the application of laws against child labour, discrimination and domestic violence. This Act will effectively shatter the misuse of existing laws.

Let’s understand what Japan’s stand on the LGBTQI Equality Act is. Although the queer rights jurisprudence is incrementally gaining momentum, the status of the Equality Act is far from fruition. The activism surrounding the issue has unquestionably increased the political pressure and transformed the discourse surrounding LGBTQ rights but there have been instances where the crevices between knowing and showing the difference have been evident. An example of this was the draft bill proposed by the ruling party in June, 2021 which caters to “promote an understanding” of queer people and was widely opposed due to no real protection being offered to the community on grounds of healthcare, education, employment, etc. With the closing of the National Diet session on 16th June, 2021, the bill has officially failed to pass. 

In March 2021, a court in Japan held that banning same-sex marriages is unconstitutional and unreasonably discriminatory. On one hand, the court held that excluding same-sex couples from the definition of marriage is a violation of their right to equality and on the other, the ruling does not legalise same-sex couples to marry in the country.

Triple Axis of Rights: Ensuring Equality

Japan’s approach towards securing queer rights has been more judicial and executive than substantive and normative in nature. Japan’s Equality Act needs to lay down more substantial and concrete rights than merely promote understanding of LGBTQI people. In essence, the Act needs to establish three quintessential rights that work in consonance with each other. As postulated by Prof. Michael T. Tiu Jr. in his article, the triple axis of rights as follows:

Right to Self-identification

Incorporation of the right to self-identification enshrines within itself a right to self-expression of gender identity or sexual orientation and the right to association. With a social acceptance rate of 5 out of 10 for queer people in Japan, this right becomes paramount to secure. Right to expression is an individual’s right to freely showcase, explicitly or implicitly, their gender identity or sexual orientation through overt acts or other means. Right to association ensures that these individuals can freely associate themselves with other individuals belonging to the community without any negative ramifications. The liberty to do so becomes pertinent in a country like Japan owing to discrimination and social exclusion meted towards queer people at schools and at work. 

Right to Privacy

Right to privacy entails an individual’s right to navigate their personal and private life without it being affected by societal and legislative actors. The United Nations Human Rights Commission in Coeriel and Aurik v. The Netherlands elucidated upon this facet of privacy, stating that “the notion of privacy refers to the sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others or alone.” Absence of an evident right to privacy hinders the community members from seeking assistance from public institutes such as healthcare owing to the visibility of the same. Disclosing sensitive information pertaining to their sexual orientation or/and gender identity makes LGBTQIA+ individuals more prone to discrimination. Furthermore, since their  private lives often run counter to the cultural norms and gender expectations prevalent in the society they might face social detestation at different levels. Japan’s COVID-19 policy which allowed state authorities to trace personal information of individuals is an example of the same. It made it harder for closeted people to seek medical assistance or healthcare in fear of being outed and facing social consequences. 

Right to Equality and Non-Discrimination

Right to equality and non-discrimination is the catalytic right that incites and prompts the application of the right to self-identification and the right to privacy by ensuring that no individual is discriminated against because of their identity or activities of their private life.  Preservation of the said catalyst, therefore, becomes paramount in formulating a safer environment and social structure for queer people, especially in public institutes where they usually face consistent detestation. Enforcement of equality and non-discrimination along with legitimate sanctions would ascertain that personal liberty and dignity are well protected. Furthermore, it allows for the right of personal autonomy without fear of exclusion, bullying and discrimination which is extremely prevalent in Japan.

Conclusion

LGBTQI community cannot sit at the edge of marginalisation depending upon the judiciary to recognize and declare their rights. The government needs to remove the veil of cultural relativeness and take initiative. This becomes more pressing because the Japanese government has failed to pass the Equality Act before the Tokyo Olympics despite the public uproar. Although heteronormative social constructs and political propagandas stand in the way of equal rights, it is time that the socio-legal environment metamorphoses through advocacy, representation, and discourse.

The authors are fourth year students at the Rajiv Gandhi National Law University.