沖 縄 弁 護 士 会
Okinawa Bar Association Rainbow Declaration
Sexual orientation, which pertains to the genders toward which a person feels intimate or sexual attraction, and gender identity, which pertains to one’s own gender identity (SOGI), are the foundations of being able to live life pursuant to one’s own choices and having the freedom to do so. Accordingly, SOGI rights must be respected as fundamental human rights inextricably connected to individualism, and all people in a society are entitled to enjoy these rights. It goes without saying that members of sexual minorities also possess these rights.
However, in our country, sexual minorities have suffered from a lack of understanding and/or have sometimes been treated with contempt. In addition, as our legal and social systems define gender as that which has been assigned by birth or that as determined by physical attributes, sexual minorities have not been appropriately recognized. We cannot say that rights of sexual minorities have been protected sufficiently. A society in which sexual diversity is not recognized is a society in which the individuality of all community members is not respected. Such a society is difficult to navigate for all people, whether sexual minority or sexual majority.
Recently, legal and quasi-legalchanges, such as recognition of gender changes or same-sex partnerships by local governments, have been gradually introduced. Private companies are being encouraged to consider gender diversity issues. Such examples demonstrate changes and improvement in SOGI awareness in our society. Nevertheless, it should be noted that individual dignity and the right to self-determination (Article 13 of the Constitution) of members of sexual minorities are still being violated, and many violations of the principle of gender equality (Article 14 of the Constitution) continue to exist. Prompt and proactive action is required.
We lawyers, as legal experts, need to learn about thedifficulties and challenges that sexual minorities still face. By learning about the sense of isolation and difficulty in living faced by sexual minorities, we can appreciate the importance of building a society where sexual diversity is truly respected. Also, we must endeavor to train ourselves to become capable of handling individual cases regarding the rights of sexual minorities, and to find solutions for the issues faced by sexual minorities.
Thus, Okinawa Bar Association,as an organization of lawyers whose mission is to defend fundamental human rights and to realize social justice, aiming for a society in which sexual diversity is fully respected under the Constitution, committed to promoting examination and research on the legal support for sexual minorities and other activities such as training, advocacy activities for companies, and establishment of specialized legal counseling services, here proclaims this Declaration of the ‘Rainbow,’ which represents sexual diversity.
March 20 2019
Okinawa Bar Association
Sexual minorities are part of the sexual diversity of our society
Sexual minorities include those whose gender assigned at birth do not match their gender identity and/or those who are not heterosexual. Sometimes sexual minorities are referred to as LGBT (for lesbian, gay, bisexual, and transgender). “SOGI,” an abbreviation for sexual orientation and gender identity, rather than “LGBT,” is understood to more accurately represent the spectrum of sexual diversity.
In humans, sexual identity and sexual orientation varies widely. It can be said that SOGI exists in a continuum. Those in the sexual majority, cisgendered heterosexuals, constitute just a part of this continuum. Gender identity cannot be changed at will or by medical treatment, nor should it be. Similarly, although sexual orientation can vary through a lifetime,sexual orientation also cannot be changed at will or by medical treatment, nor should it be.These principles are common to sexual majorities and minorities.
Sexual minorities still face difficulties and challenges
Thus,as humans who should enjoy rights and freedoms in society, in which sexual diversity is inherent, members of sexual minorities do not differ from those within sexual majorities. However, around the world, sexual minorities have been targets of discriminationthroughout history, and their human rights have been violated.
In order to eliminate such historical prejudice and discrimination, particularly since the 1970s, sexual minorities and their supporters have actively mobilized anti-discrimination campaigns seeking establishment of legal rights and elimination of discrimination. This mobilization has spread globally. The estimated number of participants in the world's largest gay parade, the San Paulo gay pride parade of 2009, reached 3.2 million. Also as part of this global movement, in 2011, the United Nations Human Rights Council adopted a resolution on human rights, sexual orientation and gender identity that expressed grave concern at acts of violence and discrimination. In the United States, the Supreme Court announced its decision requiring nationwide recognition of same-sex marriage on June 26, 2015. Same-sex marriage has been legalized in 25 countries, including the Netherlands, Spain, Canada, Argentina, South Africa, Uruguay and Austria (as of March 2019), and is reported to be soon be legalized in Costa Rica and Taiwan. In addition, more than 20 countries, such as Israel, Greece, Czech Republic and Venezuela, have established domestic partnership registration or comparable systems.
In light of such global trends, in 2003, Japan passed the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder, also known as"Gender Identity Disorder Act.”Local municipalities have also gradually introduced legal or quasi-legal systems to address sexual diversity issues, such as same-sex partnership systems. Also, the need to consider sexual minority issues in workplaces and schools has increasingly been recognized. The “sexual harassment guidelines”promulgated in January 2017,which are based on the Equal Employment Opportunity Law, clearly state that workplace sexual harassment against sexual minorities is also subject to the guidelines. In March 2017, the “Basic Policy on Prevention of Bullying” was amended by the government to include consideration of issues faced by sexual minority children and students. Additional efforts are being seen among the businesses sector and local governments to adopt policies and guidelines for equal treatment of sexual minorities in recruitment and social welfare systems. In Okinawa, various actions have been taken: the introduction of a partnership system by Naha City in July 2016; the "Rainbow City Urasoe Declaration" by Urasoe City in January 2017; introduction of the uniform-selection system at Urasoe High School in April 2018 and at Naha High School in January 2019; and the provision of honeymoon services for same-sex couples and the display of the rainbow flag by local companies.
However, such efforts are still limited. In Japan, for many years, social systems have been designed and operated in a standardized and uniform manner based on an assumption that a person’s sex assigned at birth matches that person’s gender identity, which denies the existence of some sexual minorities.Broadening societal understanding of sexual diversity and increasing legislative protections are challenges that must be addressed. The reality is that the lack of understanding of and discrimination against sexual minorities still causes various human rights violations and other serious problems. Our society forces sexual minorities to experience isolation, suffering, and hardship because many sexual minority members still have to hide their sexual orientation and gender identity due to fear of prejudice or discrimination in their homes, schools, workplaces, and communities. It is also noted that sexual minorities have higher risks of suicide and deterioration of mental health.
There are also many problems in the existing legal system. For example, the Supreme Court alluded to the possibility of a constitutional violation in the special appeal challenging the constitutionality of the de facto requirement for gender reassignment surgery in order to change a person’s gender under the Gender Identity DisorderAct (decision on January 23, 2019). Also, the domestic partnership systems generally do not have legal effect and divergence of rights compared to legal marriage is still large.
Issues concerning sexual minorities are important human rights issues
Sexual orientation and sexual identity (SOGI) are closely related to the essence of one’s personality and way of life, and are important themes to be respected as fundamental human rights.
However, as mentioned above, social prejudice and discrimination against sexual minorities is persistent and the protection of their rights is extremely inadequate. This situation should be considered a serious human rights issue that violates individual dignity (Article 13 of the Constitution) and the principle of equality (Article 14 of the Constitution). Enhancing the legal and de-facto systems and building support systems for resolving these human rights problems are urgent issues that need to be addressed. The UN Human Rights Council’s resolution on SOGI and Human Rights in 2016 recognizes protection from violence and discrimination based on sexual orientation and sexual identity as an international human rights challenge.
In Japan, a total of 13 pairs of same-sex couples filed a lawsuit on February 14, 2018, in Sapporo, Tokyo, Nagoya and Osaka, seeking legalization of same-sex marriage ("Freedom of marriage for all” lawsuit). Infringement of "freedom of marriage (Constitution 24.1)" and violation of "the principle of equality (Article 14 of the Constitution)" constitute the bases of the allegations of constitutional violations in these lawsuits. These constitutional principles apply not only to same-sex marriage but also to a wide range of cases that concern freedom of marriage and the principle of equality, such as allowing married couples to have different surnames or the applicability of the legal system to common law marriages. The various issues raised by these lawsuits need to be widely discussed throughout society, from multiple perspectives.
Need for the association and members to increase awareness
Attorneys, whose mission is to defend basic human rights and to realize social justice (Attorney Act Article 1), have a professional responsibility toacquire basic knowledge of the issues faced by sexual minorities, to conscientiously learn of their difficulties and problems, and to provide legal support. Yet, we are hard-pressed to say that most of us have sufficiently addressed human rights and legal issues faced by sexual minorities.
It is imperative for the association to position itself and proactively advance respect for sexual diversity and sexual minorities as fundamental human rights. Members of the association must learn from members of sexual minorities and their supporters, then endeavorto deepen understanding within and without the associationby providing learning opportunities for the local community, including by organizing seminars and other occasions to learn, by establishing a legal consultation desk, and by cooperating for the development and expansion of related legal systems.
Therefore, our association and its members propose this Declaration to reaffirm our awareness of our fundamental responsibilities, believing in and recognizing the necessity and impact of so declaring in order for our association and its members to reaffirm our commitment to fulfill our responsibilities and our mission.