Written By: Shigenori Matsui
Posted on: March 22, 2024
Historically, most nations in the world assumed that a sex is binary: a person is either a male or female, and the distinction in sex[1] is biological and predetermined. These nations also assumed that everyone has heterosexual orientation. As a result, little concern for transgender or homosexual people (“sexual minorities”) existed.[2] They are the people who are often referred to, more generally, as LGBTQ people. [3]
Canada’s past also shared this lack of concern. However, Canada gradually evolved to a position of strong commitment in protecting sexual minorities, and is now a global example for what a strong commitment to welcoming sexual minorities ought to look like.
The question remains: what about Asian countries and how are sexual minorities treated in their nation’s respective constitutions and legislation? In answering this question, this panel will examine the status of sexual minorities in Japan and China. First, Professor Shigenori Matsui of the University of British Columbia, Peter A. Allard School of Law outlines the development of the rights of sexual minorities in Canada and contrasts it with their development in Japan.[4] Next, Professor Jie Chen of the University of British Columbia, Peter A. Allard School of Law will examine the ambiguous situation in China.[5] As a follow-up, two visiting researchers provide detailed analyses of the status of sexual minorities in Japan: Professor Takashi Shirouzu of Chiba University will examine the status of transgender individuals and recent discussion on official sex registry change[6] and Professor Hideki Oshita of Ritsumeikan University will examine the status of sexual minorities in Japanese criminal law.[7]
These papers intend to show the history and current status of sexual minorities in Asia and cast doubt on their treatment, especially from the constitutional perspective. Since the history and status of sexual minorities in Asia are not well known amongst English-speaking countries, these papers are of immense value in understanding societal attitudes and subsequent legal implications for sexual minorities in Asia.
Sexual Minorities and the Constitution in Japan
Shigenori Matsui*
Introduction
What is the constitutional status of sexual minorities? Historically most nations paid sexual minorities little to no attention. Their treatment never raised any constitutional concerns and various discrimination against them was regarded as natural or reasonable. However, this lack of attention afforded to sexual minorities is no longer justifiable. In lieu, their constitutional status and various discriminations needs critical reexamination.
In Part I, this paper examines Canadian progress and how Canada became a global leader in the protection of sexual minorities. In Part II, it examines, in contrast, the current status of sexual minorities in Japan. In Part III, it will consider whether these treatments in Japan can be justified in light of the right of sexual autonomy protected by the Constitution.[8]
- Sexual Minorities in Canada
Similar to other nations, Canada historically showed little concern for sexual minorities, assuming that gender is binary, i.e. a person is either a male or female, the distinction is biologically predetermined, and that everyone is cisgender. On both birth certificates and passports, sexual identity was indicated as either male or female and there was no method to change the sex designation. Moreover, many public facilities, such as public washrooms, were separated by sex. These treatments created major impediments for transgender people who wanted to change their sexual or gender identity and forced them to suffer various serious disadvantages.
It had been also assumed that everyone had a heterosexual orientation. Marriage was defined as an exclusive union of one man and one woman. Although there was no criminal offence against homosexuality, there was no system for same-sex partners to live together as a couple, let alone consummate a marriage. During that time, such treatment of homosexual people was acceptable without much doubt. For example, in Egan v. Canada,[9] the Supreme Court of Canada (“SCC”) held that sexual orientation is captured by section 15(1) of the Canadian Charter of Rights and Freedoms (“Charter”) [10] and is therefore a prohibited ground of discrimination, but the SCC upheld the rejection of spousal allowance pursuant to the Old Age Security Act (“OASA”) for same-sex partners. The majority found that the objective of the OASA was to support and protect “legal marriages” leading to procreation and to nurture the children who live within that relationship, which is by its nature heterosexual. Thus, the majority concluded that the exclusion of same-sex partners was not irrelevant to the objective of this law and was justified under s.1 of the Charter.
This is a small sampling indicative of the extent to which sexual minorities suffered various disadvantages as a result of discrimination. Beyond legal implications, there was a very strong moral prejudice against sexual minorities, causing them to face moral condemnation and harassment.
However, sexual minorities came to challenge these practices and prejudices. Gradually, the SCC came to hold that discrimination against homosexual persons was an infringement of the right to equality protected by section 15(1) of the Charter and is unjustifiable under section 1 of the Charter. For example, in M v. H,[11] the SCC held that the exclusion of same-sex partners from the definition of common-law spouse under section 29 of the Ontario Family Law Act was in violation of equality rights under section 15(1) of the Charter, and could not be justified under section 1. In Vriend v. Alberta,[12] the SCC concluded that the omission of sexual orientation from the prohibited grounds in the Alberta’s Individual’s Rights Protection Act was unconstitutional. The SCC held the exclusion of sexual orientation from the scope of prohibited grounds, considered in the context of the social reality of discrimination against homosexuals, clearly causes a disproportionate impact to homosexuals as opposed to heterosexuals and denies the equal benefit and protection of the law on the basis of sexual orientation, a personal characteristic which is analogous to those enumerated in section 15(1). The SCC concluded that it lacked any pressing and substantial objective and failed to satisfy s.1 of the Charter. As a result, the discriminatory treatment of homosexual people is no longer constitutionally justifiable in Canada.
The next hurdle was an exclusion on same-sex marriage. Historically, the common-law definition of marriage as an exclusive union between one man and one woman had been followed without overt opposition for its potential unconstitutionality. However, homosexual people challenged this definition in courts, leading to several Court of Appeal judgments where the exclusion was held as unconstitutional as a violation of equality rights protected by section 15(1) of the Charter. The federal Government decided not to file an appeal to the SCC and instead drafted a federal statute legalizing same-sex marriage. Before enacting this legislation, the Government sought the opinion of the SCC. The SCC, although refusing to answer the question posed by the Government as to whether the exclusion of same-sex marriage was unconstitutional, supported the power of the federal Parliament to redefine the meaning of marriage in legislating same-sex marriage.[13] As a result, same-sex marriage was legalized in Canada.[14]
This movement to accept homosexual people in Canada prompted steps to extend this acceptance to transgender individuals. Eventually, the government changed the system of sex designation on birth certificates and passports and allowed greater flexibility. The government came to allow residents to change sex designation much more flexibly. This change forced a delisting of sex designation on many public documents or identifications. This movement also advocated for the elimination of the segregation of public facilities, such as publish washrooms, based on sex. Gradually, gender-neutral or all-gender public restrooms became quite common.[15]
Finally, sex or gender identity and sexual orientation are now included in the “prohibited grounds” in the federal Canadian Human Rights Act[16] and provincial human rights codes, thereby making it illegal for any private individuals and corporations to discriminate based on sex or gender identity or sexual orientation. As a result, Canada became a global leader in protecting sexual minorities. Although some issues remain, basic principles on equality rights are well settled.
- Sexual Minorities in Japan
A similar traditional understanding and treatments toward sexual minorities had been common in Japan as well. While Japan has a long history of homosexuality and a greater receptiveness to homosexual relationships, a pervasive moral prejudice and condemnation against homosexuality persisted.[17] The same kind of prejudice and condemnation existed also against transgender people.
In Japan, upon the birth of a new child, the parents must register the baby at the local municipal office by submitting a birth registration notification under the Family Registration Act.[18] The parents are mandated to report the name of the baby together with the sex (“seibetsu”): either male or female.[19] The distinction is based on the judgment of physicians or midwives who assisted the childbirth and provided a birth certificate, and parents must submit this certificate upon birth registration. The judgment of the physicians and midwives are based on anatomy: whether the baby has a penis or vagina. Following registration, no system existed to allow for changes to this registered sex.[20] “Legal sex” was used widely as a method of identification and as a basis for differential treatment between male and female individuals. As a result, transgender individuals suffered serious discrimination and disadvantages in their everyday lives.
Pressured by protests, the Diet, or national legislature, came to accept sex registry changes on the family registry for certain transgender people. According to the Act to Provide Special Treatment of Sex for Gender Identity Disorder Patients (GID Act),[21] certain transgender patients can ask the family court for a sex registry change. The applicant must:
(a) be over the age of eighteen,
(b) be unmarried,
(c) have no minor children,
(d) have no genital gland or be permanently lacking function of a genital gland, and
(e) have the body structure with the appearance resembling the sexual organs of the other sex.
These requirements are extremely narrow and restrictive and, as a result, many transgender people are still prevented from changing their respective sex registry.[22]
Although there was no offence prohibiting homosexual intercourse in the Criminal Code, it was only forced sexual intercourse with a female person that could constitute rape as prohibited by the Criminal Code.[23] The Prostitution Prevention Act prohibits prostitution and becoming a customer, but it only prohibits “sexual intercourse,” as referring to the penal penetration of the vagina. There has not been much discussion on whether and to what extent these provisions could be applied to sexual minorities. The rape provision was revised in 2017 to prohibit “forcible sexual intercourse, et al.” with anyone, meaning “sexual intercourse, anal intercourse and oral intercourse”. As a result, not only female individuals but male individuals are protected. Yet, insertion of fingers or objects into the vagina was not still covered and there was a doubt as to whether forcible lesbian intercourse between two women is covered by the amendment as well. It was only after the further amendment in 2023 that the prohibited “forcible sexual intercourse et al.” came to include insertion of body parts other than penis or objects into vagina or anus without consent. The Japanese sexual offence provisions in this sense had long ignored the existence of sexual minorities.[24]
Same-sex marriage was not accepted in Japan despite no explicit ban or exclusion in the Civil Code (marriage registration application from the same-sex couple would simply not be accepted).[25] Same-sex couples are precluded from common law marriage relationships,[26] from the definition of “spouse” in tax law,[27] and from receiving medically-assisted reproduction.[28] This list is just a scratch of the surface of discrimination against homosexual people in Japan.
Currently, transgender people are challenging the discriminatory and restrictive requirements for changing sex on the family registry, while homosexual couples are challenging the exclusion of same-sex marriage as unconstitutional. Furthermore, the LGBTQ community seeks the enactment of a Human Rights Act or Civil Rights Act prohibiting unreasonable private discrimination. These challenges must inform our perspective and ask us to reconsider their status under the Constitution.
III. Sexual Minorities and the Constitution
It is disappointing to find in Japan that there is still not enough concern or respect for sexual minorities. The most fundamental issue impacting Japanese treatment of sexual minorities is the absence of constitutional discussion on what defines a person’s sex and whether citizens should be allowed to enjoy complete sexual autonomy.
The Constitution of Japan, of 1946,[29] mandates that everyone should be respected as individuals (article 13),[30] guarantees “life, liberty and pursuit of happiness” (article 13),[31] and prohibits sexual discrimination and guarantees equality rights (article 14).[32] Moreover, it has a special mandate for family relationships to be built on individual dignity and the essential equality of the sexes (article 24).[33] The Constitution provides the following:
“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.
With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.”
This special mandate was inserted into the Constitution with sober reflection on the gross sexual discrimination in family relationships that was fostered under the former Meiji government. As such, the mandate is clearly a special provision on equality rights but at the same time, it is possible to view this provision as a constitutional guarantee of the right to sexual autonomy, the right to decide the personal matters related to sex by one’s self.[34]
The right to sexual autonomy should include sexual freedom and freedom of choice for childbirth. Sexual freedom should further include freedom to decide and change sexual or gender identity and freedom to have sex. Freedom of choice for childbirth should further include freedom to have a child, to prevent pregnancy by using contraceptives, and the freedom to terminate a pregnancy before it’s term, i.e., abortion. Since the right to sexual autonomy is integral to individual dignity and essential for the survival of liberal democracy, the judiciary must vigorously protect this right against government infringement. The government should not be allowed to restrict this right unless such a restriction is essential for serving a compelling public interest and the courts, by exercising the power of judicial review,[35] will be able to closely examine and determine whether the restriction is justifiable or not.
From this perspective, the preclusion of sex registry change for transgender people is highly questionable. Every individual should have a right to decide one’s sexual or gender identity and change it. Therefore, while it may be permissible to mandate the notification and registration of sex, the inclusion of a gender to differentiate individuals between male, female or others is of critical importance. If “sex” to be registered on the family registry should be read as “gender,” then each individual should have a right to change their gender according to their wishes. The requirements imposed for a sex registry change for transgender people under the Special Act are utterly unjustifiable, if “sex” to be registered is a gender.[36]
Government discrimination against homosexual people is also unjustifiable. In light of the constitutional protection of equality right by article 14, any unjustified discrimination should be invalidated. Since the Constitution lists certain classification such as sex as suspect, such discrimination based on suspicious classification needs to be subjected to rigorous judicial review. Any sex discriminations within family matters are also precluded by article 24. Although the Constitution does not explicitly list sexual orientation as suspect grounds of discrimination, there is ample reason to apply similarly rigorous judicial scrutiny to any discriminations based on sexual orientation since it may be viewed as a kind of sex discrimination. All governmental discriminations against homosexual people thus need to be viewed as unconstitutional unless it could be justified as an essential means to accomplish a compelling goal.[37] Each individual should be also granted a right to decide their sexual orientation. It does not matter whether the individual is heterosexual or homosexual. There is simply no reason to preclude same-sex marriage. The preclusion of same-sex marriage for homosexual couples in Japan is therefore highly questionable.
Private unreasonable discrimination against sexual minorities needs to be banned as unlawful and illegal. It is utterly unjustifiable to leave this kind of unwarranted private discrimination without any prohibition. The government should enact a Human Rights Act or a Civil Rights Act and ban such discrimination along with other unreasonable discrimination, such as discrimination based on race, colour of skin, ethnic origins, religion and sex. The government should set up an independent regulatory agency, such as a Human Rights or Civil Rights Commission, to enforce this ban by filing criminal charges, issuing administrative orders, mandating cease-and-desist orders, ordering damages to victims, imposing hefty civil fines, and also assisting victims in seeking civil redress.
Even without such a statutory ban, any unreasonable private discrimination ought to be viewed as illegal by the courts in light of the mandate in the Civil Code to interpret its provisions in light of the “individual dignity and essential equality of sexes.”[38] Any legal action which is contrary to the public order and good morality is void[39] and any illegal infringement of rights and legal interests could be a tort.[40] There is no need for the courts to wait for the enactment of statutory bans to crack down on discrimination based on sexual or gender identity or sexual orientation.
Conclusion
One may wonder why this paper focuses on the “right to sexual autonomy” rather than “privacy” as developed and accepted in the United States. The Supreme Court of the United States (“SCOTUS”) developed privacy jurisprudence to provide constitutional protection to many of the foregoing issues, discarding the prohibition on abortion and homosexual sodomy[41] and legalizing the same-sex marriage.[42] However, with the most recent Dobbs judgment,[43] the future of these privacy judgements is unclear. Although many academics support this privacy jurisprudence, it is questionable whether the choice to employ “privacy” is the most apposite option. The concept of “privacy” as defined by the SCOTUS is extremely ambiguous and is without boundary. Moreover, many of the issues discussed here involve a partner or relations between people and it is hard to view such individual choices as “private.” In light of this, it is much more appropriate to reconsider the foregoing questions involving sexual minorities from the perspective of sexual autonomy rather than privacy. Sexual or gender identity and sexual orientation remain an individual choice and it is vital to ground this right to sexual autonomy firmly in the Constitution to provide solid protection to all choices that flow from this entitlement as a substantive right.
This urgent necessity is also applicable to other countries in the world, including Canada. In Canada, the SCC has not squarely held that sexual autonomy, including a right to determine one’s gender identity and sexual orientation, is a constitutionally enshrined right. It is true that the SCC has relied upon section 15(1) of the Charter to mandate equal treatment between heterosexual people and homosexual people. Yet, the fact remains that the underlying right is not squarely established. Some may claim that the equality right is sufficient and further grounding the right of sexual autonomy into the Constitution is unnecessary. However, this is not sufficient, as the equality right will be only triggered upon discrimination. With this in mind, there exists a clear necessity to firmly enshrine the right of sexual autonomy as a constitutionally protected right in Canada as well.
*This panel discussion is a part of the Constitutional Crossroads Conference, which took place at the University of British Columbia, Peter A. Allard School Law, on January 12-14, 2023.
[1] Sex is generally believed to be a biological distinction whereas gender is generally believed to be a social distinction. Transgender people generally refer to the people whose gender identity does not correspond to their biological sexual identity. However, in some countries, such as Japan, there is no clear-cut distinction between sex and gender. Moreover, some people are not happy with their biological sex and went ahead with sex reassignment surgery and hormone therapy to become a person with opposite sex.They may choose to identify as transsexual people. During this panel, we don’t want to exclude anyone from our discussion.
[2] Some people might object to the use of the words of “sexual minorities,” because these people do not want to be viewed as minorities. Yet, the fact remains that they are minorities who are vulnerable and need stronger judicial protection for the constitutional analysis. This is a reason why we refer them as “sexual minorities.” We don’t have any intention of hurting anyone.
[3] There are so many different words to refer these sexual minorities: LGBT, LGBTI, LGBTQ, LGBTQ+, LGBTQA, LGBTQA+, 2SLGBTQ+, or something else. In this panel, each panelist chose a best word for their analysis.
[4] Shigenori Matsui, Sexual Minorities and the Constitution in Japan.
[5] Jie Chen, Sexual Minority Rights in China from the Perspective of Law and Politics. Professor Cheng’s paper will be published on other publication.
[6] Takashi Shirouzu, Trans Rights in Japan.
[7] Hideki Oshita, Sexual Minority in the Japanese Criminal Justice System.
* Professor of Law, University of British Columbia, Peter Allard School of Law
[8] Shigenori Matsui, Sex, Sexuality and the Constitution (UBC Press 2023).
[9] [1995] 2 SCR 513.
[10] Canadian Charter of Rights and Freedoms, Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.).
[11] [1999] 2 S.C.R. 3.
[12] [1998] 1 SCR 493.
[13] Reference re Same-Sex Marriage, [2004] 3 SCR 698.
[14] Civil Marriage Act, S.C. 2005, c. 33, s.2 (defining marriage, for civil purposes, as “the lawful union of two persons to the exclusion of all others.”).
[15] Although sex needs to be registered in Canada, the parents can choose “X” instead of male or female, and every individualis allowed to change it without any sex reassignment surgery. Therefore, sex to be registered actually means gender. Indeed, many government websites refer to “gender” designation instead of “sex” designation.
[16] Canadian Human Rights Act (R.S.C., 1985, c. H-6), s.3(1).
[17] At least Japan has a long history of homosexuality and the homosexual relationship is very popular nowadays in Japanese comics and popular television dramas. But there used to be and still is a wide deep prejudice against sexual minorities in Japan. Nagayasu Shibun, Sexual Minorities in Japan: The Myth of Tolerance, nippon.com (Oct 21, 2016), https://www.nippon.com/en/currents/d00253/. Although the majority of Japanese people are willing to accept homosexuality, one-third of the population steadfastly opposes it. Statista, Attitudes towards homosexuality in Japan as of September 2019, https://www.statista.com/statistics/1333186/japan-homosexuality-acceptance-level/.
[18] Kosekihō [Family Registration Act], Law no. 224 of 1947, art. 49(1).
[19] Ibid. art. 49(2). The Japanese word “seibetsu” could be viewed as either sex or gender. But the government has interpreted it to mean “sex.” Since the sex of the baby is confirmed by a physician or a midwife who assisted the baby birth and is based on the physical characteristics of the baby whether the baby has a penis or vagina, probably it should mean physical sex and not gender. If this interpretation is correct, then there is no requirement for registration of gender in Japan. This might imply that the Japanese law has not distinguished sex and gender and has accorded the different treatment of people solely based on sex of a person. It means that the Japanese law has not granted any independent status to gender, different from sex.
[20] The name of the baby is also needed to be reported and registered. The name of the baby is often different depending upon whether a baby is a boy or a girl. However, there is a system to allow the registry change of first name with the permission of the family court. Family Registration Act, supra note 11, art. 107. Moreover, there is nothing to prevent the use of common name or trade name different from the registered legal name.
[21] Seidouitsusei shougaisha no seibetsu no toriatsukai no tokurei wo sadmeru hōritsu [Act to Provide Special Treatment of Sex for Gender Identity Disorder Patients], Law no. 111 of 2003 (GID Act).
[22] For more detailed analysis, see Shirouzu’s paper.
[23] Keihō [Criminal Code], Law no. 45 of 1907, art. 177. Since “sexual intercourse” was interpreted as “penal penetration of vagina,” it was natural only female persons who could be victim of rape.
[24] For more detailed analysis, see Oshita’s paper.
[25] Minpō [Civil Code], Law no. 89 of 1896, art. 739 (mandating a marriage notification to the local municipal office in accordance with the Family Registration Act); Family Registration Act, supra note 11, art. 76.
[26] There is a separate local residence registration system, which will record personal information of all residents, regardless of nationality. Jumin kihon daichohō [Local Residence Registration Act], Law no. 81 of 1967. It is created based on the family registry, but the applicant can record the status of de facto married spouse as “spouse (unmarried),” indicating that the couple is at least de facto married. Apparently, homosexual couples cannot use this procedure. Common law married couples or de facto married couples can be treated as married couples for the purpose of social security benefit payment. But the homosexual couple is prevented from this treatment as well.
[27] Shotokuzeihō [Income Tax Act], law no. 33 of 1965, art. 83; Souzokuzeihō [Inheritance Tax Act], Law no. 73 of 1950, art. 19-2.
[28] Japan Society of Obstetrics and Gynecology, http://fa.kyorin.co.jp/jsog/readPDF.php?file=74/7/074070749.pdf#page=17 (IVF procedure is limited to married couples although they no longer have to be legally married).
[29] Nihonkoku kenpō [Constitution of Japan], 1946.
[30] Ibid. art. 13.
[31] Ibid.
[32] Ibid. art. 14(1)(“All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin”).
[33] Ibid. art. 24.
[34] I elaborated this position in my book, Matsui, supra note 1.
[35] Constitution of Japan, supra note 22, art. 81.
[36] Moreover, this Act is premised upon the perception that transgender people have a disability and that they can be treated or cured. This perception is no longer justifiable. If the sex to be registered on the Family Registration Act is a biological or physical sex, then that sex could not be changed unless a person received a sex reassignment surgery. As we already saw, the Japanese government seems to assume that “sex” to be registered is a biological or physical sex and, therefore, it is not a “gender” to be changed simply because of gender dysphoria. Surely, there might be necessity to track the biological or physical sex of a person. But it is more important to track “gender” for personal identification purposes. Then, it is the “gender” that needs to be registered and then the gender could be and should be changed according to one’s wish. The problem is that the Japanese government used biological or physical sex as a criterion for separate and different treatment between male and female.
[37] Even when a transgender woman needs to be viewed as a “woman,” this does not mean that any different treatment between cisgender woman and transgender woman should be struck down. If there is a compelling reason and it is an essential means to accomplish that goal, then a different treatment should be justified.
[38] Civil Code, supra note 18, art. 2.
[39] Ibid., art. 90.
[40] Ibid., art. 709.
[41] Lawrence v. Texas, 539 U.S. 558 (2003).
[42] Obergefell v. Hodges, 576 U.S. 644 (2015).
[43] Dobbs v. Jackson Women’s Health Organization, 597 U.S. — (2022). [Dobbs]
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