Vancouver: UBC Press, 2023. US$27.00, paper. ISBN 9780774868167.
Given the 2024 announcement by the Sapporo High Court that Japan’s ban on same-sex marriage violated the country’s Constitution, the book Sex, Sexuality, and the Constitution: Enshrining the Right to Sexual Autonomy in Japan by Shigenori Matsui provides a timely discussion on how the Japanese experience engages with the debate on sex and sexuality.
The author embarks on a critical examination of how reproductive rights and sexual autonomy are framed within constitutional contexts. The book explores the changing perspectives on sex and sexual autonomy, from Meiji era law to modern legal reforms in Japan, highlighting how traditional views that regard sex and childbirth as community affairs rather than individual rights are ultimately linked to broader population policies. By comparing Western court cases and verdicts (mainly from the US and Canada) with the Constitution of Japan and relevant laws, the author focuses on the legitimacy and limits of policies related to various sex-related crimes and social practices. The book questions the justification for limiting decisions regarding sexual identity and the right to consensual sex, the use of assisted reproductive technologies (ART/MAR), and examines the constitutional issues surrounding kinship recognition in these contexts.
The book is structured into six chapters, opening with the question of why issues of sex and sexuality should be examined from a constitutional perspective rather than merely through legislative or policy lenses. The author asserts that the right to sexual autonomy at the constitutional level is the only framework that can integrate the various discussions surrounding sex, marriage, childbirth, and related issues. This reframing is crucial as it addresses the normalization of these rights within the legal discourse. In chapter 2, the author points out the ambiguities in current laws, noting that many sex-related behaviours lack clear definitions in law. To implement constitutional protection for sexual freedom, establishing a constitutional basis for sexual autonomy becomes important. In chapter 3, the author delves into a discussion of rape, questioning how the government can protect people from rape in a male-dominated Japanese society, and tests the legitimacy and limits of the consent approach in judging rape cases under current laws and prosecution processes.
In chapter 4, the author elaborates on childbirth-related issues, including the use of ART/MAR and parenthood under current laws. It is interesting to note that the courts observe the inconsistent intrinsic logic of the law regarding parenthood, yet no constitutional framework is provided to protect the rights of parents. Chapter 5 showcases an exceptional autonomy regarding abortion. Although abortion is strictly controlled by law, “illegal” abortions in Japan are tolerated, and the government shows no interest in enforcing the related laws in everyday life. In chapter 6, the author attempts to extend and connect the previous discussions to population policy. The author asserts that affirming individual sexual autonomy at the constitutional level could be a solution to alleviating the demographic pressure of an aging population in Japan.
The book posits that sexual and reproductive rights should not be viewed as isolated issues but rather as part of a coherent framework governed by the principle of sexual autonomy. This approach raises questions about the legitimacy and limits of government policies, particularly in contexts where sexual behaviour and reproductive decisions are considered personal freedoms.
Japan serves as a focal point for the book’s analysis, as the government has never formally recognized sexual freedom and choice as individual sexual rights. Historically, Japanese society has accepted governmental regulation of sex and reproduction from moral and population policy perspectives, viewing these as societal rather than individual rights issues. The book discusses Japan’s demographic challenges, such as the declining birth rate and its implications for women, emphasizing the need for women to retain the choice of a child-free life.
In the United States, restrictions on sexual behaviour or reproductive rights are often framed as privacy rights violations, necessitating strict scrutiny by courts. The book argues for viewing sexual behaviour and reproduction as constitutional issues, given their foundational role in personal life and societal survival. The author critiques the reasoning in landmark cases like Roe v. Wade and Dobbs v. Jackson Women’s Health Organization, suggesting a shift towards discussing these issues through the lens of sexual autonomy rather than privacy rights.
The book explores various legal and social implications of sexual and reproductive rights, including the paternalistic nature of certain policies that deprive individuals of the freedom to consent. It traces the historical evolution of sexual and reproductive rights in Japan. The author notes that Japan has not adopted either the dual framework of the US Supreme Court or the proportionality review of the Canadian Supreme Court, resulting in an unclear and unpredictable analytical framework. The lack of discussion on the judicial standards for reviewing restrictions on sexual autonomy highlights the need for a more defined approach.
Sex, Sexuality, and the Constitution provides a foundational background for understanding sex and gender issues from the perspective of the Japanese Constitution, as well as through comparative landmark cases from the US. This book will be of interest to both students and specialists. The case discussions are particularly useful for students to comprehend the background of key debates surrounding issues such as rape, childbirth, and abortion. However, the book largely draws from Western cases and primarily juxtaposes Japan with the US to support the usefulness of the sexual autonomy framework at the constitutional level; the logic of comparison is not well elaborated. Readers may find it confusing that the book sets up these comparisons, given that there are significant differences in social and political contexts between Japan and the West. Notably, the Sinosphere shares similar legal debates on sex and sexuality issues. How are the debates and the framework proposed by the author comparable and beneficial to discussions in other Asian countries? Nevertheless, the author’s proposal of constitutional reform to establish the position of sexual autonomy extends the reader’s imagination in debating the controversies around sex and sexuality. It is original and merits further exploration and academic discussion.
Javier Pang
The Hong Kong Polytechnic University, Hong Kong