Lila's dads, Kohei and Andrew, are fighting in court to achieve this simple wish.
Kohei is Japanese, while Andrew is American. In 2015 they were legally married in America, but Andrew is unable to obtain a spousal visa because Japan doesn't allow same-sex marriages. Even now, after living as a couple in Japan for more than ten years, Andrew would be unable to live in Japan with Kohei and Lila if not for a visa sponsored by his workplace.
In order to have a visa not tied to his employment, Andrew applied for long-term residency, but was rejected five times.
The right to live peacefully with the family you choose should be a universal right, not open only to opposite sex couples. But because Kohei and Andrew are both men, their marriage isn't recognized in Japan.
Although they were in the midst of the lawsuit, Kohei and Andrew welcomed the puppy Lila into their family in 2020. The life that these two dog lovers dreamt of had been difficult to achieve in the eyes of the Japanese in court, but believing in the future of their family, they took the step to move that much closer to their goal.
Same-sex marriage is not recognized in Japan. However, that is not to say that the rights of same-sex couples are ignored altogether. For instance, a couple where both parties are foreign nationals, such as a marriage between an American and a British person, would be able to obtain a designated activities visa for one partner if the other party already had residency status connected to their employment or education.
That means there is already precedent for recognizing the marital status of same-sex couples. This court case argues that the marital status of Kohei and Andrew should be taken into consideration as well.
In the 1978 McLean v Ministry of Justice case, the Supreme Court ruled the basic human rights guaranteed in the Constitution are only afforded to foreigners within the framework of Japan’s residence status system. In other words, there are times in which the fundamental human rights of a foreign resident will not be taken into consideration in the visa application review process.
But because the right to live with one's family is considered a fundamental human right, the status of "Spouse or Child of Japanese National" is issued to partners in international marriages. It can therefore be said that Andrew's fundamental human rights are being ignored in his current situation.
This court case argues that the fundamental human rights bestowed upon us at birth are not something we need to bargain for with the government or immigration authorities.
Many of the problems involved in this case would be solved if same-sex marriage were legally recognized in Japan. However, discrimination against foreigners, which is at the center of this lawsuit, would remain unaddressed.
In addition, the realization of same-sex marriage will require legislation, which will take time to put into effect. In the meantime, many people in Kohei and Andrew's situation will continue to be subjected to unreasonable treatment and discrimination.
Respecting people's basic right to live together as a family is a simple problem to solve. Many people can be helped immediately just by changing the inhumane way in which the immigration authorities treat married couples.
In a word, the verdict was an "essential win" for our case. Although Andrew was not granted the Long-Term Residency status we were asking for, the court did judge that he should have been granted a Designated Activities status. In this way, the result can be considered a victory in essence.
It is very significant that the court ruled that foreign same-sex partners who are married to Japanese nationals should be granted status of residence based on their relationship, and that the court even noted that the Immigration Bureau's handling of the issue is contrary to the intent of Article 14 of the Constitution. This is a definite step forward for international same-sex couples.
Throughout this lawsuit, we have argued that Andrew should be granted Long-Term Resident status. Living together with one's family is not a temporary "activity," but a fixture of one's life.
In this decision, it was determined that Andrew's length of stay and the length of time he had lived with Kohei were not sufficient to establish him in Japan. Despite the need for humanitarian considerations and the mention of Article 14 of the Constitution regarding the granting of Designated Activities status, the decision that it is not illegal to deny Long-Term Resident status makes light of their relationship and the difficulties they have been forced to face as a same-sex couple.
On the other hand, it was determined that Andrew should have been granted the Designated Activities status of residence that has been granted to same-sex partners of foreign nationals according to the Notice of 2013. The reason is that it is unlawful for Kohei and Andrew, a Japanese national and a foreign national, to be discriminated against in comparison to a same-sex couple of foreign nationality. This conclusion was drawn from the limited perspective of a comparison between "same-sex couples," not a comparison with the treatment of heterosexual couples.
This decision is of great significance because it paves the way for same-sex couples of Japanese and foreign nationalities to reside in Japan in a stable manner. However, the criteria used in the decision showed a remarkable lack of understanding of same-sex couples.
The basis of Kohei and Andrew's lawsuit is that they should be treated the same as a heterosexual couple. At the center of this trial is not just Andrew's status of residence, but also Kohei, a Japanese citizen's human rights. Kohei is also asking for reparations as a plaintiff.
However, in this judgment, the question is not whether the refusal to recognize the status of residence was a humanitarian issue, but rather whether it was in violation of the rules of the Immigration Bureau. The court ruled that the Immigration Bureau's action in refusing to grant not only Long-Term Resident status but even Designated Activities status was illegal based on Article 14 of the Constitution, which guarantees equality under the law, but that it was not negligent because the Immigration Bureau's understanding at the time was that the Notice of 2013 did not extend its reach to the same-sex partners of Japanese nationals.
A verdict based on such a blatant double standard should not be tolerated, as it closes the door to judicial relief for those who suffer from erroneous judgments and human rights violations by the state.
About the appeal
Because the defendant (the Japanese government) who formally won the case cannot appeal, the plaintiffs, Kohei and Andrew, must decide whether to appeal. Even if they appeal for Long-Term Resident status, there is a possibility that the higher court will rule that they will not even be granted the status of residence for Designated Activities. It is not easy to decide whether or not to take that risk and spend even more time and effort to continue the trial.
What's next?
The first question is whether the Immigration Bureau will actually grant the status of Designated Activities as a result of this ruling. The Immigration Bureau will be required to issue a new notice to replace the Notice of 2013 and change the treatment of same-sex couples of Japanese and foreign nationals so that they can live in Japan in a stable manner.
If Andrew is in fact granted Designated Activities status, it should be possible from now on for nationals of countries where same-sex marriages are recognized to be granted the same status of residence if they are married to a Japanese national.
Facebook, too!
- October 12th, 2022
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Immigration Bureau does not grant Designated Activities status of residence
During the trial, Andrew has been forced to lead a precarious life, continuing to renew his Temporary Visitor status, which allows him to stay in Japan for only 90 days. Every few months he has requested to change his status to Long-Term Resident (or otherwise Designated Activities) each time he applies, and he applied for this again in August before the court ruling. After the outcome of the trial, we had hoped that the result of this application would come back in the form of a grant of Designated Activities status, but on October 12th, the Immigration Bureau granted Andrew the same Temporary Visitor status.
It is not known whether this was a sign of the Immigration Bureau's intention to not heed the court decision or whether the procedure simply could not be completed in time. - October 14th, 2022
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Appealing the District Court's Judgement
Two weeks after the ruling is the deadline to decide whether or not to appeal. Despite the court ruling that Andrew should be granted Designated Activities status of residence, the Immigration Bureau did not grant him this status. Without further action, this result would end in the worst possible outcome: both losing the trial and receiving no new status of residence. As such, the two appealed the Tokyo District Court on October 14th.
- Date and time :
- Wednesday, July 26th, 2023,
3:00PM JST - Place :
- Tokyo High Court, Courtroom 101
Anyone from the public is permitted to observe the court proceedings, and there is no need to show identification to enter. There is power in numbers and in showing that this case matters to us.
Please come and show your support!
1. The closest station to the Tokyo District Court is Kasumigaseki Station (Marunouchi Line, Hibiya Line, Chiyoda Line)
Walk one minute from the A1 exit, and the Tokyo District Court will be on your right.
2. Please enter through the civilian entrance
There are two entrances once you come through the front gates. The door on the right is the general entrance. Once you go inside, there will be a security check similar to those at an airport. Follow the instructions of the people in charge and enter the courthouse.
3. You are free to enter and exit as you please
Courtroom number 101 is on the ground floor. You can enter even if the proceedings are already underway!
The timeline of the trial
The sessions from the second to the ninth, spanning about two years, consisted of what is called a "legal brief". This time consisted of the plaintiff and the defendant presenting their respective cases and preparing documentation needed for the trial. During the cross-examination, the plaintiffs, Kohei and Andrew, will stand in court and speak on their right to live in Japan as a family.
The power of an audience
You might feel that you won't have any real influence just by coming to watch the trial.
The truth is, showing up is extremely important!
If the gallery is full, it sends the message that the public is very concerned about this issue. It tells the judge and the defendants (the country and Immigration Bureau) that it matters to us, we are watching, and waiting for an equitable verdict!
The two demands
There are two demands included in this lawsuit.
- 1. The invalidation of the rejection of Andrew's application for long-term residence
- 2. State indemnity
The first demand asks that Andrew's application for long-term residence be approved.
The second seeks state compensation for mental anguish caused by the deprivation of the freedom to form and maintain a family.
When you hear the phrase "state compensation," it may seem like the case is about the money, but at the heart of this case is the state’s infringement on Andrew's and Kohei’s human rights, and the culpability of the government and immigration authorities for these violations.
The types of resident status
There are three types of visas available to the married partner of a resident of Japan. "Spouse or Child of Japanese National" and "Long-Term Resident" are granted to those who have a family relationship with a Japanese national or whose lives are rooted in Japan, while the "Designated Activities" visa is granted to those who are expected to stay in Japan temporarily.
Spouse or Child of Japanese National
This is a resident status reserved for the spouse (husband or wife), child, or legal ward of a Japanese national.
However, this visa is not automatically awarded to any person married to a Japanese national. The relationship is subject to inspection and may be denied in certain circumstances, such as if there is a large age gap between the two parties, they have been together for a short time, they have low income, or they met on a dating site online.
Foreigners who have been married to a Japanese national for at least three years and have lived in Japan for more than one year are eligible to apply for permanent residence.
Long-term residence
This visa is granted to individuals who are determined by the Ministry of Justice to have special circumstances that warrant permanent residency. This includes such groups as ethnic Japanese living abroad, refugees, and those who have been widowed or separated from their Japanese spouse.
An individual who has stayed in Japan on this type of visa for five years or longer is eligible to apply for permanent residence. We are arguing that in Andrew's situation, he should qualify for a long-term resident visa as well.
Designated activities
This is a status of residence that allows the Ministry of Justice to designate specific activities for individual foreign nationals for activities that do not fall under any other status of residence. This may include domestic servants of diplomats, those on a working holiday or internship, and amateur athletes, among others.
This visa status may be awarded to one party of a non-Japanese same-sex married couple if both parties live in Japan and one is under a business-related or other such visa.
In order to apply for Permanent Residence, one must live in Japan for at least 10 years.
The Notice of 2013
In 2013, the Director of the Immigration and Residence Division of the Immigration Bureau of the Ministry of Justice issued a notice stating that if a foreign same-sex couple has a valid same-sex marriage in the countries of both parties and one of them has a status of residence in Japan, the spouse will be permitted to stay in Japan under the status of residence "Designated Activities" from a humanitarian perspective. As a result, the Immigration Bureau has granted status of residence to same-sex partners of foreign nationals, but has uniformly refused to grant status of residence to same-sex partners of Japanese nationals, deeming them "out of scope."
McLean v Minister of Justice
This lawsuit concerned a foreigner's status of residency and their freedom to participate in political activities. The verdict of this 1978 Supreme Court case was that the basic human rights guaranteed in the Constitution are only afforded to foreigners within the framework of Japan’s residence status system. The Immigration Control and Refugee Recognition Act is a law, and as such should not take priority over higher legal standards such as the constitution and treaties. However, the ruling in this case has been used as basis for The Immigration Control and Refugee Recognition Act to take precedent over the constitution and treaties when dealing with foreigners. This ruling has cast a dark shadow over the human rights of foreigners in Japan for over forty years.
Same-sex marriage in Japan
We are not the only ones fighting for the rights of same-sex couples in Japanese court right now! The "Marriage for All Japan" lawsuit is currently taking place in courts in Sapporo, Tokyo, Nagoya, Osaka, and Fukuoka. If you are able, please attend as an observer at a courthouse near you or share information about the lawsuit online.
What's next after the trial?
The Tokyo District Court ruled that Andrew should be granted the Designated Activities status of residence. If Andrew is officially granted this status of residence, the Immigration Bureau will need to change its operation, as the same response will be required of other same-sex couples in the future. The result paves the way for a future in which same-sex couples in international marriages will be able to obtain residency status on the basis that they are family.
