Fighting for the Freedom to Live Together as a Family in Japan
A story about the residence status of a Japanese and American same-sex couple
On a still-hot summer night, we visited the apartment where Kohei and Andrew lived. Our sudden arrival startled their beloved dog, Lila, who started barking. While Kohei tried to calm Lila, Andrew made some iced tea and coffee. As I held the ice-filled, cold glass, the sweat quickly receded.
Sitting on the sofa of the air-conditioned study room, the two of them began recounting their journey of almost 20 years. Beside Andrew, who was explaining, Kohei quietly nodded in agreement. His hands looked gentle as he soothes Lila. Andrew usually entrusted Lila to Kohei, and they meticulously discussed matters like the air conditioning and whether to dim the lights because Lila might get excited.
Taking a sip of the iced tea, we wondered where this tranquil atmosphere comes from.
Lawsuit seeking the correction of discrimination and the right to family life
Kohei and Andrew are a married couple in the United States. However, because they are an international same-sex couple, Andrew is unable to stay in Japan as Kohei’s spouse.
Heterosexual couples can obtain a residence status (在留資格)* for their foreign spouses in Japan. However, as of 2019, Andrew was granted only a short-term stay visa, which allowed him to stay in Japan for approximately 30 to 90 days. It’s worth noting that in the case of same-sex marriages between two foreigners, if one partner has a valid residence status in Japan, the other partner can obtain a “designated activities (特定活動)” residence status. However, even this status was not granted to Andrew.
In 2019, Andrew initiated a lawsuit to challenge the decision denying his change of residence status and to seek the status of a “permanent resident (定住者).” At the same time, Kohei and Andrew filed a lawsuit for state compensation, demanding the correction of discriminatory treatment of a Japanese and American same-sex couple and the freedom to live as a family.
In response, the Tokyo District Court of the first instance recognized a violation of the constitutional right to equality concerning the fact that the Immigration Services Agency (Immigration Bureau) did not even grant Andrew the “designated activities” status, considering it as discriminatory treatment compared to same-sex couples of foreigners. This was a significant step, but Kohei and Andrew are currently in the process of appealing the case in the second instance.
* Residence Status refers to the legal qualifications needed for non-Japanese individuals to stay in Japan. It is a legal qualification under the Immigration Control and Refugee Recognition Act (commonly known as the Immigration Act), which grants the right to stay in Japan for the permitted period by obtaining the appropriate residence status that matches the purpose of the stay.
There are various types of qualifications within the status of residence, which can be broadly categorized into two main types: “Residence-based Qualifications” and “Activity-based Qualifications,” each with different eligibility criteria and purposes. “Residence-based Qualifications” are based on status or position and do not have employment restrictions. They include four types: “Permanent Resident,” “Spouse of a Japanese National,” “Spouse of a Permanent Resident,” and “Long-Term Resident.” The other “Activity Qualification” comes with employment restrictions and includes various categories like “short-term stay,” “study,” and “family stay,” where employment is generally not allowed. There are specific categories within this qualification, like “business management,” that allow limited employment. Additionally, the Minister of Justice can specify certain activities for individual foreigners to engage in as part of the “designated activities” qualification.
The journey of the two and the challenges they faced
Kohei and Andrew met in 2004 when Kohei was studying in the United States. Shortly thereafter, they began dating and lived together in the United States until Kohei completed his graduate studies in 2008.
“I had already been working for about 12 years at that time, but I was considering a career change to pursue a Ph.D.,” recalled Andrew, who was working at a university at the time.
“However, when I returned from a domestic business trip, Kohei, who had greeted me, mentioned that job prospects in the United States were tough, and he might have to return to Japan once he completed his graduate studies.”
This happened around the time of Lehman Shock. Kohei decided to return to Japan after finishing his graduate studies.
“From that moment, we realized that our options as a same-sex couple were limited. If we were a heterosexual couple, there would be a spousal visa, and we could consider various futures. But for us, the only option was each of us independently obtaining a visa, which was a challenging choice.”
From then on, they maintained a long-distance relationship for a year and a half, maintaining their relationship across the United States and Japan.
“But the time difference between Japan and the United States was a significant barrier. To continue our relationship, I felt that I had to make the choice to leave the United States and live with Kohei in Japan.”
Obtaining a Ph.D. in the United States usually takes about seven years. Andrew gave up the idea of pursuing a Ph.D. and decided to study in Japan.
“In retrospect, I’ve been forced to make choices since that time. Pursue a career or to throw away the relationship with Kohei. We have always had to weigh the future,” Andrew says.
In January 2010, Andrew left the United States to live with Kohei. However, after his student visa expired in 2012, the administrative procedures for him to live in Japan were endless and exhausting.
“I was working as a freelancer, and from 2014, I had to switch to a visa that required me to sponsor my own living expenses, and it became the ‘investment and management’ (now ‘management and administration’) residence status. The procedures were complex,” Andrew said.
“If we were in a heterosexual marriage, we wouldn’t have had to go through such hardships,” Andrew reflected.
Discrimination against same-sex couples
In the first place, in the case of heterosexual couples where one party is of foreign nationality, that individual can easily stay in Japan with a spouse visa. Additionally, even in the case of same-sex couples, when both partners are of foreign nationality, the issuance of a “designated activities” visa is permitted by the Ministry of Justice’s notification (formerly the Immigration Services Agency’s notification).
In September 2022, the first-instance judgment found the visa treatment towards Andrew to be discriminatory in comparison to at least the latter treatment. However, even after this court finding, it took about six months for a “designated activities” visa to be granted to Andrew.
“At that time, even though the judgment pointed out the violation of the constitution, the fact that they ignored it made me think, ‘What kind of country is this?'” Kohei reflected.
It wasn’t until March 2023 that Andrew was finally granted a “designated activities” visa. However, this visa is based on qualifications related to temporary “activities.” Andrew is also subject to employment restrictions, only allowing him to work a maximum of 28 hours per week.
Therefore, Andrew is seeking to obtain a “permanent resident” visa, which has no employment restrictions and is relatively easy to obtain for those who have settled in Japan. This type of visa is granted to individuals who have established themselves in Japan and is also available to foreign individuals who had married and subsequently divorced Japanese citizens of the opposite sex.
“There is no reasonable basis for distinguishing between the spouse of an opposite-sex marriage and the spouse of a same-sex marriage,” states the opinion provided by Professor Sota Kimura, submitted during the appeal hearing. The opinion goes on to argue that the essence of the activities of individuals with the status of a Japanese spouse is a “shared life,” not an activity involving “reproductive relationships,” and that altering the issuance of residence status based on the presence or absence of reproductive relationships would violate Article 14, Paragraph 1 of the Constitution, which establishes the principle of equality under the law.
They cannot plan their future as a family
In 2015, after the legalization of same-sex marriage in the United States, the two of them legally married there. However, upon their return to Japan as a legally recognized couple, they faced the prospect of Andrew’s work ending and the corresponding expiration of his “investment and management” visa.
“With the ‘investment and management’ visa, there’s a limited period during which you can have no income. If you don’t create a job during that time under this visa, you run out of time,” explained Andrew.
“I wanted to develop software, but in Japan, programming is done in a different language than in the United States, and it would take about six months to learn. I didn’t have that kind of time,” he continued.
“In the end, the fear of having our residence status expire at any moment means that we can’t make long-term business decisions.”
“Ordinary heterosexual couples aren’t forced into situations where one of them must earn money or attend school all the time. Even if one doesn’t work, they are recognized as spouses.”
“We are just a normal couple, yet we can’t plan our future in the way heterosexual couples can. It means our family can be torn apart.”
It is not just about the economic disadvantages due to employment restrictions and due to the inability to make long-term business decisions. It also demonstrates the “legal vulnerability” asthey do not know when they might be separated has already materialized.
“It’s painful to feel like we are considered inferior, unable to do things that heterosexual married couples can do as a matter of course.”
Andrew also shared, “We live in fear of being told to ‘go back to your own country.’” “People have said, ‘If you want to live together, just move to the United States.’,” added Kohei.
“We are emotionally hurt and psychologically pressured, living in fear of being kicked out at any moment. This is an issue related to the system that treats us as strangers despite spending almost 20 years together, and more than 10 years in this country, a problem with not even being able to obtain residence status. This is a problem with how the system is implemented, and it’s an issue that wouldn’t happen if we were in an opposite-sex marriage or not an international couple.”
The disregard for the human rights of foreign individuals hindering family life
They argue that this is also a disregard for the human rights of foreign individuals.
“The right to form a family and maintain family life is a fundamental personal right, guaranteed under Article 13 of the Constitution, and this applies to foreigners as well. International human rights law also guarantees the right to ‘respect for family life,'” they asserted.
In the opinion submitted during the appeal hearing by Professor Masahiro Sogabe, it is noted that denying Andrew a residence status restricts the “freedom regarding maintaining intimate human relationships” protected by Article 13 of the Constitution and goes against the international human rights law.
“In the United States, we all understand that telling African Americans to ‘go back to your own country’ is clear racial discrimination (racism). It’s a similar issue. Is it acceptable to tell foreign residents in Japan to ‘go back to your own country’? This is discrimination based on nationality.”
“At the same time, limiting the right of Kohei to live with his foreign partner because he is gay is a form of discrimination based on gender and sexual orientation (sexism).”
This is also a disregard for the human rights of Japanese citizens
In 2018, with the expiration of Andrew’s stay under his previous management visa looming, the couple tried various methods in an effort to “maintain family life.” They made five visa applications and also engaged in advocacy with members of parliament and local government officials. However, despite their efforts, Andrew was granted only a short-term stay visa with a maximum duration of 90 days, and each visa denial left him in an unstable position.
“We had no choice but to resort to administrative litigation as a last resort.”
“For us, this was an urgent issue on the brink of whether we could live together in Japan,” the two of them said in unison.
“And not just seeking a residence permit, but also the need to have our rights—such as the right to equality and the right to lead a family life—recognized in a visible way.”
“This is why I, as a Japanese citizen, filed a lawsuit against the government. I felt that this is not just an issue for Andrew, a foreigner, but also a Japanese issue. I felt that the right to lead a stable family life as a Japanese citizen is being taken away and we are being subjected to inequality,” Kohei reflected on the filing of the lawsuit.
“We, same-sex couples consisting of Japanese and foreign individuals like us, are in a position where we have to choose between giving up family life or leaving Japan,” Kohei emphasized.
“And there are many other people in the same position.”
This is a family issue, Kohei says.
“I thought that a lawsuit was a last resort. But I am fortunate to have stable employment in Japan today, and I had the capacity to speak up. However, there are many international same-sex couples who cannot even file a lawsuit, and some have had to leave Japan.”
“Including those people, as a Japanese citizen, I spoke up with Andrew .”
The outcome of the lawsuit and the changes they are seeking
“The Tokyo District Court’s ruling, stating that even the ‘designated activities’ qualification wasn’t granted, was a source of joy. However, true equality has not been achieved. While recognition of the ‘designated activities’ is granted to same-sex couples of foreigners, permanent resident status is not recognized, and visas as spouses, like those for heterosexual couples, are not provided.”
Kohei continued, “We don’t believe in a mindset that says, ‘Because it’s a gay couple,’ or ‘Because it’s a same-sex couple with one foreigner and one Japanese, it can’t be helped.’ Equality under the law is needed for gay couples, international couples, and everyone.”
“That’s why our lawsuit continues.”
“However, over the past four years, through the lawsuit, we have seen that there is hope. We realized that we can receive support from those around us, and there are people who stand by us. We receive messages from couples in similar situations, and a lesbian couple has created a website for this lawsuit and is handling public relations, providing us with constant support. It has been truly heartwarming.”
“Through this lawsuit, we hope that equality in the treatment of same-sex international couples is recognized, and we hope that couples in similar situations, or those who had to leave Japan, can return with their families and live comfortably.”
What is a family?
“What gave us hope for our future was when we talked about our situation during an extracurricular class for high school students. When we discussed the restrictions on our residency status and the discriminatory legal systems that make stable family life difficult, these teenagers, they all said it was strange and didn’t make any sense,” recalled Kohei.
“So I believe that there is hope in the future when these young people grow up. The institution of same-sex marriage might become a reality. However, for us, right now, we need a visa based on our ‘family’ relationship.”
As Kohei speaks, Andrew also added, “I would like the courts to focus on our case, not from a theoretical perspective, but first and foremost on the suffering we experience, not knowing when our family life will be torn apart. Ultimately, I hope they realize that it’s the issue of the national system that is fostering discrimination in the minds of ordinary people, suggesting, ‘Just go back to your own country’ or ‘Move to the United States.'”
As the conversation was drawing to a close, Lila, who had been quiet, began to bark again. The two of them chuckled and, as the room’s lights dimmed slightly, they watched Lila scurry around the room. The now-empty iced tea glass had formed condensation.
They brought Lila, who was just born in 2020, into their home after filing the lawsuit. Kohei explained, “Because she’s still small, she behaves like this, barking and getting spoiled. ” This describes the life of the two with their dog.
The essence of a family lies in the “shared life.” If there’s one way to describe a family, it’s their dog’s shyness around strangers, the study room with working air conditioning, and the couple’s thoughtful gestures when they have visitors, all combined in the calm atmosphere of their apartment. None of this can be diminished by the fact that they are a same-sex married couple, or an international couple.
Interview and text by Yuko Haraguchi
Photography by Akiko Sameshima
Editing by Orie Maruyama
Translation by Reiko Inoue and Tracey Cui