TOKYO -- Osaka District Court on Monday ruled that it is "constitutional" for Japan not to allow same-sex unions, in a setback for LGBT+ rights advocates in the only Group of Seven nation that does not recognize marriage equality.

The ruling was Japan's second on marriage equality after a landmark judgment by the Sapporo District Court last year that found the country's failure to recognize same-sex marriage was unconstitutional, saying it violated Article 14 of the top law that states "all the people are equal under the law."

In the Osaka ruling, presiding judge Fumi Doi argued that the elimination of discrimination and prejudice will be realized through the "establishment of systems based on unfettered discussions in the democratic process." The judge also said that "marriage-like" systems can recognize such unions.

The court went on to say that the purpose of marriage is for society to protect relationships between a man and a woman for giving birth and raising children -- an opinion that differs greatly from the Sapporo ruling, which said that marriage is also to protect cohabiting partners. The Osaka ruling also said that the difference between benefits enjoyed by same-sex and heterosexual couples is being narrowed.

Taijiro Ohata, the plaintiff's lawyer, told the media after the ruling that "the court abandoned its role as a judicial branch."

Yasuhiko Watanabe, a law professor at Kyoto Sangyo University, said the depth to which judges understand the tough situations in which LGBT people have to live is the difference between the two rulings. "The Osaka court ... simply left the matter to the Diet to handle," Watanabe said.

Watanabe argued that the ruling gave room for the public to interpret that applying partnership systems instead of marriage to same-sex couples is sufficient. "It gave the wrong impression that the challenges that same-sex couples may face are somewhat solved, thus negating the need for same-sex marriage."

Machi Sakata, one of the plaintiffs who joined the lawsuit with her American partner, described the ruling as a "disappointment."

"Marriage equality has not been discussed thoroughly and that's why we asked for a judicial judgment on it," said Sakata. "To us, the court seems to have run away from doing it."

Plaintiffs hold hands each other after a district court ruled on the legality of same-sex marriages outside Sapporo district court in Sapporo, Hokkaido, northern Japan, on March 17, 2021,   © Reuters

The LGBT+ community in Japan shared her dismay.

"It's quite shocking and I feel like we made three steps forward after the Sapporo ruling and four steps back with the fresh ruling," said Yu Shinohara, an openly lesbian engineer at Goldman Sachs. Shinohara remembered how much hope the Sapporo ruling gave her last year, saying it gave her a sense of reassurance that she was finally accepted by society.

Like many other LGBT+ couples, she has felt insecure because of the lack of legal protection. For example, same-sex couples are often denied by hospitals to see their partner as their relationship is not legally binding. Shinohara worries the same thing could happen to her and her partner.

While progress at the national level remains slow, more municipalities are starting to recognize same-sex unions. However, such recognition is not legally binding and does not extend the same legal rights open to heterosexual couples. Same-sex couples cannot access legal rights such as custody of their partner's children, inheritance rights and tax benefits.

"This partnership recognition is far away from fair treatment," wrote Miyuki Fujii and Rie Fukuda, a female couple in Tokyo, in a note sent to Nikkei Asia. "It's like we are told that we are people who can be discriminated against and we cannot access the same freedom and equality to marry as heterosexuals."

Hiroshi Ikeda, co-leader of the Same-sex Partnership Net, a network that promotes legal protection to same-sex couples, said the court failed in its role to protect minorities. "The ruling did not take into account the disadvantages that LGBT+ people have incurred," Ikeda told Nikkei Asia.

There is a series of ongoing lawsuits in five major cities -- Tokyo, Osaka, Nagoya, Fukuoka and Sapporo -- across Japan that began in 2019. As of June, 36 plaintiffs have participated in lawsuits asking for judgments on the constitutionality of the current law under which same-sex partners cannot marry. A Tokyo District Court will deliver a ruling in November.

The focus of the lawsuits are two questions: "Is it unconstitutional that same-sex couples cannot marry?" and "If so, is it against the law for the Diet to leave alone a law that violates the Constitution?"

Plaintiffs are seeking rulings on both questions to clarify that not recognizing same-sex unions is unconstitutional and thus against the law. They hope they can nudge national lawmakers to respond quickly on the matter.

The government argues that not recognizing same-sex marriage is constitutional because the top law does not envisage such unions and therefore does not mandate that marriage between same-sex couples must be guaranteed to the same extent as between heterosexual couples.

Lawyers of the plaintiffs said on Monday that they will appeal the court ruling.

As the visibility of the LGBT+ community has progressed, more companies have recognized same-sex partnerships and expanded their own benefit programs to their LGBT+ employees, said Masa Yanagisawa, a board member of advocacy group "Marriage for All Japan" and head of Prime Services Japan at Goldman Sachs.

But Yanagisawa added that there is a limit to what individual companies can do, and legal protection by the state is necessary.

"At the moment, we rarely see discussion over marriage equality," Yanagisawa said. "It remains important that the Diet discuss the matter."