CONSTITUTIONAL RIGHTS AND FREEDOMS OF SEXUAL AND GENDER MINORITIES IN JAPAN: LESSONS FOR THAILAND

Abstract

          This study analyzes the status and development of constitutional rights and freedoms for gender-diverse individuals in Japan through comparative constitutional law methodology to extract lessons for Thailand. The research employs documentary analysis and judicial decision examination on same-sex marriage rights, covering the period from the post-World War II constitution establishment (1947) to developments since the 2010s.

          The findings reveal that while the Japanese Constitution provides robust fundamental rights protection under Articles 13 and 14, the interpretation of Article 24 regarding marriage "between both sexes" remains a significant barrier to recognizing same-sex couples' rights. Since 2010, Japan has entered a "new age of visibility" for gender-diverse individuals, driven by three major transformations: the emergence of an LGBTQ+ economic market, the expansion of activities to regional areas, and the shift from social to legal advocacy.

          The Sapporo District Court's ruling on March 17, 2021, declaring the denial of same-sex marriage rights unconstitutional, represents a significant legal milestone. However, challenges persist through conservative opposition, uncertain government positions, the shift from homophobia to transphobia, and limitations in anti-discrimination legislation.

          The study of gender-diverse individuals' vulnerability during disasters reveals issues of identity verification, access to facilities, relationship recognition, and healthcare access, reflecting the failure of public protection systems to provide equal services.

          For Thailand, lessons from Japan highlight the importance of developing legislation that balances protection of gender-diverse individuals' rights with maintaining equality principles and proportionality. The study recommends that Thailand focus on developing comprehensive anti-discrimination laws, improving public service systems, and creating fair protection mechanisms without establishing special rights that may conflict with equality principles.

          The study concludes that successful development of gender-diverse individuals' rights requires adherence to constitutional principles of proportionality, comprising appropriateness, necessity, and balance between competing interests. Thailand's stronger constitutional foundation for protecting gender diversity compared to Japan provides an opportunity to create a balanced and sustainable development model for the global community.