Can Human Rights of a Sexual Minority in Japan Be Guaranteed? A Comparison with Taiwan's Efforts for Gender Equality

By Hikita, Kyoko | Journal of Asian Women's Studies, March 2018 | Go to article overview

Can Human Rights of a Sexual Minority in Japan Be Guaranteed? A Comparison with Taiwan's Efforts for Gender Equality


Hikita, Kyoko, Journal of Asian Women's Studies


Preface

On May 24, 2017, the top court in Taiwan ruled that current laws preventing same sex couples from marrying violated their right to equality and were unconstitutional. It then gave a period of two years for laws to be amended.1 Thus, "Taiwan is closer to becoming the first place in Asia to allow same-sex marriage.2"

Until this constitutional judgment was made, there has been accumulation of social and legal arguments. One special result of that was the Gender Equality Education Act enacted in 2004. This act, which required schools to teach gender equality and diversity, was epoch-making.3 Many young people came to recognize gender equality as natural (Tamura 2017).

It is said that the historical development of human rights protection of European sexual minorities has three stages in common. They are: 1) Stage I-the establishment of a foundation of human rights by eliminating criminal laws, such as the sodomy law which punishes sexual contact between same-sex couples; 2) Stage II-legal protection of sexual diversity by prohibiting discrimination on the grounds of sexual orientation and gender identity and 3) Stage III- approval of sexual diversity, review of the legal system concerning marriage and family, and reconstruction the legal system (Taniguchi 2016). According to these development stages, Japan is similar to Taiwan in that there is no law that imposes criminal penalties on homosexual acts in Stage I.

In the last 30 years, Taiwan has experienced dynamic development from Step II to Step III in response to the international trend of gender equality including gender diversity. On the other hand, in Japan, conservatives have emphasized the "masculinity-femininity" duality and the traditional value of families since the latter half of the 1990s. Japan still has not reached Stage II. And the current legal situation is that there are neither laws nor judicial precedents giving any legal guarantee to a homosexual partnership.

Even in Japan, the transgender was given the legal status of "gender identity disorder." It then became possible to change the legal gender status under certain conditions. However, the various sexual minorities who are not under protection of the law are still isolated while experiencing difficulty. This legal shift aimed not to confuse the existing heterosexual love order.

Despite such difficulties facing various sexual minorities, in recent years movement aimed at eliminating discrimination and protecting rights became visible at the local government level which is closest to the lives of the citizens. Particularly, Tokyo's Shibuya Ward began issuing partnership certificates to same-sex couples in 2015, which was brought to public attention by the media. This in turn accelerated actions by other municipalities. In Taiwan, same-sex marriage was legalized for the first time in Asia. Alternatively in Japan, elimination of discrimination against sexual minorities and the protection of their rights remain at the stage of voluntary efforts by local governments. What are the factors that caused this difference? In response to this question, this paper examines factors that impede the legal status of diversified sexual minorities located in Japan compared to the situation in Taiwan.

1.Homosexual identity and legal status as a "minority"

In Japan and Taiwan, there is no law to criminalize homosexuality unlike the sodomy law in Western Europe, and both countries are told that homosexuals as homosexuals are not at the stage of establishing a human rights foundation. However, in Taiwan, the Kuomintang regime, which lost the Civil War in 1949 and relocated to Taiwan, was subjected to an extremely strong authoritarian rule until the mid-1970s. During that regime, Confucian ethics and the distinction between public domain and private domain were regarded as national policy, and sexual minorities were under the severe control of the police as "sexually immoral persons". …

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