(Photo by Proxima Studio via Bigstock)
In recent years, some of Asia’s most significant legal developments involving LGBTQ rights have unfolded not in parliamentary chambers but in courtrooms. From marriage equality lawsuits in Japan to litigation over same-sex spousal benefits in South Korea and constitutional challenges in countries including India and Nepal, courts across the region have increasingly been asked to decide questions that lawmakers have yet to resolve. The trend raises a broader question: Why has constitutional litigation become a recurring pathway for LGBTQ people seeking legal recognition in parts of Asia?
The pattern has unfolded over nearly two decades.
In 2007, Nepal’s Supreme Court issued one of Asia’s earliest landmark rulings recognizing the rights of sexual and gender minorities, directing the government to end discriminatory laws and examine legal recognition for same-sex couples. A decade later, Taiwan’s Constitutional Court ruled that denying same-sex couples the right to marry violated the constitution, paving the way for the region’s first marriage equality law. In India, the Supreme Court recognized transgender people as a third gender in 2014 before striking down a colonial-era ban on consensual same-sex relations four years later.
The pattern continued across Asia.
Japan’s courts repeatedly questioned the exclusion of same-sex couples from marriage. The rulings intensified pressure for legal reform. Parliament, however, has yet to act.
South Korea’s judiciary expanded legal protections for same-sex couples. It recognized spousal health insurance benefits. A recent district court also awarded damages after a same-sex relationship ended. The ruling added momentum to the country’s marriage equality movement.
China’s courts took a different path.
Landmark constitutional rulings never emerged. Still, litigation prompted the Supreme People’s Court to acknowledge anti-LGBTQ discrimination. The developments reflected courts’ growing role in LGBTQ rights disputes.
The Philippines added another dimension.
Marriage equality remains unresolved, yet the Supreme Court recently recognized property rights for some same-sex couples. The ruling stopped short of recognizing marriage. Still, it acknowledged legal protections for LGBTQ relationships. The decision reflected another way courts have shaped LGBTQ rights across Asia.
Constitutional courts occupy a distinct place in democratic systems. Legislatures enact laws. They also respond to political priorities and public opinion. Constitutional courts serve a different function. They decide whether laws or government actions comply with constitutional guarantees. They resolve legal disputes brought before them. Their role is not to measure a policy’s popularity. It is to determine whether it is constitutionally valid. That distinction has placed constitutional courts at the center of many of Asia’s most consequential LGBTQ rights disputes.
Nepal offers an early example.
In 2007, LGBTQ activists turned to the Supreme Court through a public interest petition. They argued that discriminatory laws and government practices violated constitutional guarantees of equality. They also sought legal recognition for gender and sexual minorities. The government urged the court to dismiss the petition. It argued existing laws already protected all citizens. It also said the claims relied on assumptions rather than specific instances of discrimination. The court disagreed. It held that sexual orientation and gender identity are natural variations of human identity. It directed the government to eliminate discriminatory laws and policies. The ruling also ordered a study on legal recognition for same-sex couples, laying the foundation for future reforms.
“Since it is the absolute jurisdiction of the legislature to decide as to what type of law should be made and amended on a particular issue, and as this matter does not fall under the jurisdiction of this office, therefore, there does not seem any pertinent reason and valid ground to make this Office a respondent,” said Office of Prime Minister and Council of Ministers in its 2007 affidavit. “Let the writ petition be dismissed on the ground that the unconcerned office is being made as an opposite party in the case.”
In India, a prominent leader of the ruling Bharatiya Janata Party, Subramanian Swamy, described homosexuality as a “genetic disorder” in 2015. He also wrote on social media that it was a “genetic handicap,” reflecting the political discourse surrounding LGBTQ rights before the Supreme Court’s landmark ruling in 2018.
The Supreme Court’s landmark 2018 ruling decriminalized consensual same-sex relations. The decision did not end the debate. Soon afterward, the Rashtriya Swayamsevak Sangh, a right wing, Hindu nationalist volunteer and paramilitary organization, an ideological parent of the ruling Bharatiya Janata Party, said it did not consider same-sex relationships a crime. It added, however, that it did not support such relationships.
After the Supreme Court’s landmark 2018 ruling, Arun Kumar, a senior Rashtriya Swayamsevak Sangh leader, told the media that same-sex relationships and marriage were neither “natural” nor “desirable.”
During the 2023 marriage equality hearings, the Indian government repeatedly argued that the issue belonged before Parliament, not the judiciary. Solicitor General Tushar Mehta told the Constitution Bench that the case involved a “very complex subject” with “profound social impact” and that “all the questions in this case must be left to the Parliament.” He argued that recognizing same-sex marriage through judicial interpretation would require rewriting the Special Marriage Act and could have unintended consequences across multiple laws. During the hearings, Mehta also questioned how existing marriage laws would operate for same-sex couples, asking, “Who will be the wife in a lesbian relationship?”
The Washington Blade covered these arguments as the hearings unfolded.
Three years have passed since the Supreme Court declined to recognize same-sex marriage, holding that creating such a legal framework was a matter for Parliament. Marriage equality, however, remains unrecognized in India. Parliament has not enacted legislation extending civil marriage to same-sex couples. The legal position has remained unchanged since the court’s 2023 ruling.
Similar tensions have surfaced elsewhere in Asia.
In Japan, a growing number of courts have questioned the constitutionality of denying marriage to same-sex couples, even as Parliament has yet to amend the law. In South Korea, courts have steadily expanded legal protections for same-sex couples, while the government has argued that recognizing same-sex marriage is up to lawmakers. In the Philippines, marriage equality and civil partnership bills have repeatedly failed to secure congressional approval amid religious and political opposition. The legislative stalemate has prompted advocates to pursue constitutional litigation before the Supreme Court.
Indonesia presents a different picture.
Rather than debating legal recognition, much of the political discourse has focused on restricting LGBTQ rights. In a landmark 2017 case, however, rights groups successfully opposed a petition that sought to criminalize all consensual same-sex relations nationwide. The Constitutional Court rejected the petition, ruling that creating new criminal offences was a matter for Parliament, not the judiciary.
The National LGBT Media Association represents 13 legacy publications in major markets across the country with a collective readership of more than 400K in print and more than 1 million + online. Learn more here: NationalLGBTMediaAssociation.com.
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