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Tokyo court gives same-sex married couple partial win in residency ruling

  • September 30, 2022
  • , The Japan Times
  • English Press

By William Fee, staff writer

 

The Tokyo District Court ruled on Friday that denying an American man in a same-sex marriage with a Japanese national a “designated activities” residency status — already granted to foreign same-sex married couples — was against the constitutional guarantee of equality under the law.

 

In what was both a loss and a win for the plaintiffs, the court ruled that Andrew High was not eligible for long-term residency status but should be eligible for the designated activities status, which could pave the way for other foreign members of same-sex couples to receive the status — although the wider implications of the ruling were not immediately clear.

 

High said at a news conference that he had felt pessimistic in the buildup to the announcement.

 

“Certainly, this is a positive step forward, and we’re relieved about that,” he said.

 

However, the drawn out nature of the case — the legal aspect of which has lasted three years, but in practice has stretched throughout basically the entire 18 years of their relationship — had taken some of the shine off the outcome.

 

“It’s hard to believe that this is a success, and that’s why you’ll see that we’re not all smiles,” he said, before giving examples of other binational same-sex couples he knows who have either broken up, abandoned their plans to live together in Japan, or been forced to move abroad as a consequence of the lack of legal protections for people in same-sex relationships.

 

In handing down the ruling, presiding Judge Yoshitaka Ichihara said that High should have been granted the “designated activities” residency based on humanitarian grounds so that the couple could lead a stable life in Japan.

 

In Japan, a foreign spouse of a Japanese national in a heterosexual marriage is granted a spousal visa, a long-term residency status or designated activities status should they meet certain criteria — including the demonstrable longevity and stability of their relationship.

 

Based on a Justice Ministry notice, even same-sex married couples comprising two foreign nationals are granted long-term residency status.

 

Both long-term residency and designated activities visas grant up to a five-year stay in Japan and can be renewed. The latter category is typically issued to people in Japan for specific occupations, such as nursing care workers and housekeepers, but they can also enable a wider range of work activities at the Justice Ministry’s discretion. Long-term visas, meanwhile, have no restrictions on employment.

 

“When it comes to residency, there is no logical basis for placing same-sex couples comprising a Japanese and a foreign national on an inferior footing to a couple comprising two foreign nationals,” Ichihara said. “It is against Article 14 of the Constitution, which ensures equality under the law.”

 

Because Japan does not currently recognize same-sex marriages, such Japanese-foreign couples who married overseas are not eligible for the same legal protections afforded to heterosexual couples — including on issues related to residency.

 

High first met his husband, Kohei, in California in 2004. The couple originally intended to remain in the U.S., where Kohei was looking to develop a career in finance. However, with the economic crash of 2008, work in the sector dried up and Kohei was forced to return to Japan.

 

Finding it difficult to maintain the relationship long-distance, High joined Kohei in Japan in 2010, first living on a student visa and then on a business visa, which required him to establish his own company.

 

That in turn meant he had to give up his stable job in software development at the University of California. When his business began to suffer, High encountered difficulties renewing his status under the latter visa category.

 

The couple were legally married in the U.S. after the Supreme Court overturned a ban on same-sex marriage in 2015. They have now lived together in Japan on and off for over 10 years — High’s residency status permitting — and for the past seven years as a married couple.

 

High has applied for long-term residency a total of five times, yet each time he was rejected. In 2019, he filed a lawsuit against the government, arguing that the rejection of his application for the status infringed on his basic human right to have a family, which is enshrined for all regardless of gender or race in Article 14 of the Constitution.

 

On the continuing residency restrictions facing binational same-sex couples, Janice Ryan — who attended the public gallery to hear the verdict in support of her friend, a witness in the case in a similar situation — said that its effects are not isolated to those individuals alone, but are a matter of concern for society as a whole.

 

“It affects all of us because, whether we are in that situation or not, we’re still living in the same society knowing that people are being discriminated against, and that affects us all in a negative way,” she said.

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