Labor & Employment Law

Same-Sex Couples in Japan: HR, Visa and Equality Issues for Global Employers

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read
Global comparison of same-sex partnership rights: Japan’s local certificates vs Taiwan’s marriage law and corporate HR best practices

TL;DR

  • Japan still lacks national recognition of same-sex marriage; rights depend on patchy local partnership systems and corporate policies.
  • Courts are split on constitutionality, while Taiwan’s 2019 legislation offers a contrasting Asian model.
  • Multinationals must bridge legal gaps through inclusive HR benefits, visa support and clear communication.

Table of Contents

  1. The Legal Landscape in Japan: A Lack of National Recognition
  2. The Taiwanese Approach: Specific Legislation Post-Constitutional Ruling
  3. Cross-Border Recognition and Implications
  4. Best Practices for U.S. Companies in Japan
  5. Conclusion: An Evolving Landscape

As businesses become increasingly global and workforces more diverse, understanding the varying legal landscapes concerning employee relationships is crucial. For U.S. companies with operations or employees in Asia, particularly Japan, the legal status of same-sex couples presents a complex picture, differing significantly from the marriage equality established in the United States by Obergefell v. Hodges. While societal attitudes in Japan show growing acceptance, the national legal framework remains unchanged, creating a patchwork of recognition primarily driven by local governments and corporate policies.

This contrasts with neighbours like Taiwan, which became the first jurisdiction in Asia to legalize same-sex unions through specific legislation in 2019. This article explores the current legal situation for same-sex couples in Japan, compares it with the approach taken in Taiwan, and discusses the implications for international businesses managing diverse talent pools.

At the national level, Japan does not currently recognize same-sex marriage or provide a legal framework for registered partnerships that confers rights comparable to marriage.

  • Constitutional and Civil Code Interpretation: The Japanese Constitution (Article 24) states that "Marriage shall be based only on the mutual consent of both sexes..." While some scholars argue this wording does not explicitly prohibit same-sex marriage, the prevailing interpretation by the government and historically by courts has been that it applies only to heterosexual couples. Similarly, the Civil Code provisions governing marriage are interpreted as applying only to unions between a man and a woman.
  • Recent Court Challenges: In recent years, several district courts across Japan have ruled on the constitutionality of denying same-sex marriage. Rulings have varied:
    • The Sapporo District Court (March 17, 2021) found the lack of recognition violated the constitutional guarantee of equality under Article 14 but did not award damages.
    • The Tokyo District Court (November 30, 2022) found the situation constitutional, albeit acknowledging a lack of legal protection for same-sex families.
    • The Fukuoka District Court (June 8, 2023) found the situation to be in a "state of unconstitutionality," highlighting the violation of personal dignity.
    • The Nagoya District Court (May 30, 2023) also ruled the lack of legal recognition unconstitutional under Articles 14 and 24.
    • Conversely, the Osaka District Court (June 20, 2022) upheld the constitutionality of the marriage laws.
      High court rulings have also emerged, with the Sapporo High Court (March 14, 2024) notably declaring the provisions limiting marriage to heterosexual couples unconstitutional under Articles 14 and 24, marking a significant step, although the Tokyo High Court (March 14, 2024) found the lack of same-sex marriage constitutional while acknowledging the equality issue. These conflicting lower court judgments highlight the ongoing legal debate, which is expected to eventually reach the Supreme Court for a definitive ruling, though no such case is currently pending there. As things stand, same-sex couples cannot legally marry in Japan.
  • Local Government Partnership Systems: In response to the lack of national recognition, hundreds of local governments (prefectures and municipalities) across Japan have introduced "Partnership Certificate Systems" (パートナーシップ証明制度 - pātonāshippu shōmei seido). These systems allow same-sex couples (and sometimes opposite-sex couples who choose not to marry legally) to register their relationship with the local authority.
    • Limited Legal Effect: It is crucial to understand that these certificates do not grant legal rights equivalent to marriage. They are largely symbolic acknowledgments by the local government.
    • Practical Benefits: However, they can offer practical benefits within that specific municipality or prefecture, and increasingly in the private sector. These may include: eligibility for public housing as a family, hospital visitation rights in municipal hospitals, signing documents as next-of-kin in certain local administrative procedures, and recognition by companies that voluntarily choose to accept the certificates for extending employee benefits.
    • Inconsistency and Portability: The scope of recognition and benefits varies significantly between municipalities, and the certificates are generally not legally binding outside the issuing jurisdiction.
  • Alternative Legal Arrangements: Same-sex couples in Japan may utilize other legal tools to gain some protections, such as:
    • Adoption (普通養子縁組 - Futsū Yōshi Engumi): If age requirements are met, one partner can legally adopt the other, creating a legal parent-child relationship. This grants inheritance rights and the ability to make medical decisions but fundamentally misrepresents the nature of their relationship and has other complex legal consequences. Court precedent suggests that being a same-sex couple is not, in itself, grounds to deny an adoption between adults (Tokyo High Court, April 30, 1998).
    • Notarized Agreements and Wills: Couples can create private contracts governing property ownership or use wills to designate inheritance, though these lack the automatic protections of marriage and can be subject to challenge or遺留分 (iryūbun - legally secured portion) claims by legal heirs.
    • Arbitrary Guardianship Contracts (任意後見契約 - Nin'i Kōken Keiyaku): These allow individuals to designate someone to make decisions on their behalf should they become incapacitated.

The Taiwanese Approach: Specific Legislation Post-Constitutional Ruling

Taiwan offers a contrasting Asian example. Following a landmark Constitutional Court ruling in 2017 (Judicial Yuan Interpretation No. 748) which declared the Civil Code's limitation of marriage to heterosexual couples unconstitutional, the legislature enacted specific legislation.

  • The Act for Implementation of J.Y. Interpretation No. 748 (施行法 - shikōhō): Instead of directly amending the Civil Code's definition of marriage (which faced significant public opposition reflected in referendums), Taiwan passed a separate act in 2019 specifically allowing same-sex couples to register their union.
  • Marriage-Like Rights, But Not Identical: This Act grants same-sex couples many, but not all, of the rights and obligations associated with heterosexual marriage under the Civil Code. Key similarities include:
    • Marital property regimes.
    • Mutual support and inheritance rights, largely mirroring those of spouses.
    • Rights related to medical decision-making.
  • Key Differences and Limitations: The Taiwanese model deliberately maintains some distinctions from heterosexual marriage, reflecting a political compromise:
    • Terminology: The law carefully avoids using the exact term "marriage" (婚姻 - hūnyīn) for the union itself, often referring to it as a "same-sex union" (or similar phrasing based on the Act's title), although the registration process is termed "marriage registration."
    • Relationship with In-laws: Unlike heterosexual marriage, the Act does not automatically create legal ties (affinity - 姻族関係 inzoku kankei) between one partner and the other partner's blood relatives. This has implications for areas like prohibited degrees of marriage involving former in-laws or eligibility for certain roles (like legal guardian) that consider affinity.
    • Adoption: Initially, the Act only permitted step-child adoption (one partner adopting the other's biological child). Joint adoption of unrelated children was not allowed. However, subsequent legislative changes in 2023 have now permitted joint adoption by same-sex couples, bringing adoption rights largely in line with those of heterosexual couples.
    • Assisted Reproduction: Access to assisted reproductive technologies under Taiwanese law remained largely restricted to heterosexual married couples initially, although discussions and potential reforms are ongoing.
    • Cross-Border Recognition: Issues remained, particularly concerning transnational couples where one partner was from a jurisdiction that did not recognize same-sex marriage. Taiwan has progressively relaxed these restrictions through administrative interpretations and legislative amendments, now generally allowing transnational same-sex marriage registration regardless of the foreign partner's home country law, with specific exceptions for relationships involving partners from Mainland China due to separate cross-strait regulations.

Taiwan's approach demonstrates a way to provide significant legal recognition and protection while navigating societal divisions, though it initially created a separate-but-not-quite-equal status compared to heterosexual marriage, which has been gradually addressed through further reforms.

Cross-Border Recognition and Implications

For multinational companies, the differing legal statuses create complexities, particularly regarding employee relocation, benefits administration, and ensuring equitable treatment across borders.

  • Recognition of Foreign Same-Sex Marriages/Partnerships in Japan: Japan generally does not legally recognize same-sex marriages or civil partnerships validly entered into overseas as equivalent to Japanese marriage. This means that a U.S. employee legally married to their same-sex partner in the U.S. will likely not have that marriage automatically recognized for legal purposes under Japanese national law (e.g., for spousal visas, inheritance rights under Japanese law without a will, etc.).
    • Visa Issues: While there isn't a specific "spouse" visa category for same-sex partners of foreign nationals working in Japan, immigration authorities may grant residency status under other categories, often the "Designated Activities" (特定活動 - tokutei katsudō) visa, on a case-by-case basis, considering the stability and nature of the relationship. This process can be less certain and potentially more burdensome than applying for a standard spousal visa. A Tokyo District Court ruling on September 30, 2019, addressed a situation where a foreign same-sex partner of a Japanese national was denied this status, highlighting potential inconsistencies or challenges in application, although the specific legal arguments and outcomes can vary.
    • Taiwanese Unions: Similarly, a same-sex union registered under Taiwanese law would likely not be treated as a legal marriage under Japanese national law.
  • Corporate Policies as a Bridge: Recognizing these legal gaps, many multinational corporations and increasingly, larger Japanese companies, are voluntarily extending internal benefits to employees' same-sex partners. This often involves:
    • Accepting foreign marriage certificates or Japanese local government partnership certificates as proof of relationship for internal purposes.
    • Offering equivalent access to company benefits such as family leave, congratulatory/condolence leave and payments, health insurance subsidies (for company schemes), housing allowances, and relocation assistance.
    • Implementing inclusive language in internal policies and communications.

These corporate policies are crucial for ensuring equitable treatment and attracting/retaining diverse talent, but they cannot replicate the full scope of legal rights and protections conferred by marriage under national law (e.g., inheritance, certain tax benefits, comprehensive medical decision-making authority).

Best Practices for U.S. Companies in Japan

Given the current situation, U.S. companies operating in Japan should consider the following:

  1. Review and Update HR Policies: Ensure internal non-discrimination policies explicitly include sexual orientation and gender identity. Review benefits eligibility criteria and consider extending spousal/family benefits to employees with documented same-sex partners (using foreign marriage certificates, Japanese partnership certificates, or other reasonable proof of relationship).
  2. Provide Clear Information: Communicate clearly to employees, especially those relocating internationally, about the legal limitations regarding the recognition of same-sex partnerships in Japan, while also highlighting the company's inclusive policies and available internal support.
  3. Support Visa Applications: While the company cannot guarantee visa outcomes, provide necessary support and documentation for employees' same-sex partners applying for residency under relevant categories like the Designated Activities visa. Liaise with immigration lawyers experienced in these matters.
  4. Foster an Inclusive Culture: Implement diversity and inclusion training that addresses SOGI issues and promotes an environment where LGBTQ+ employees feel safe, respected, and comfortable being open about their relationships if they choose to. Encourage allyship programs.
  5. Stay Informed: Monitor legal developments, including court rulings and potential legislative changes at both the national and local levels. Track which municipalities offer partnership systems, as this may be relevant for employees residing in those areas.
  6. Engage with Business Coalitions: Consider participating in business coalitions in Japan advocating for LGBTQ+ equality (like "Business for Marriage Equality") to stay informed and contribute to positive change.

Conclusion: An Evolving Landscape

Japan's approach to the legal status of same-sex couples is in flux. While national law currently lags behind many other developed nations and jurisdictions like Taiwan, societal acceptance is growing, local governments are increasingly implementing partnership systems, courts are grappling with constitutional challenges, and corporations are often stepping in to fill the gaps through inclusive policies.

For U.S. businesses, navigating this requires understanding the distinction between the limited legal recognition currently available and the broader push for equality and inclusion. By implementing equitable internal policies and fostering a supportive workplace culture, companies can demonstrate their commitment to diversity and ensure fair treatment for all their employees, while remaining mindful of the ongoing legal and societal developments in Japan. The contrast with Taiwan's legislative approach highlights that different paths exist, but the global trend towards greater recognition and protection for same-sex couples continues to exert influence.