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LGBTI rights in the Philippines are in limbo

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Lloyd Nicholas Vergara
Supreme Court of the Philippines, Manila
lloydndv@gmail.com

 

The definitive case law in the Philippines on LGBTI issues is Ang Ladlad LGBT Party (Ladlad) v Commission of Elections (COMELEC).* Ladlad,[1] an organisation composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs), applied with the COMELEC to be registered as a party-list organisation in 2006. Its application was denied on the ground of lack of substantial membership base. In 2009, Ladlad applied again, yet this time, the COMELEC refused registration on moral grounds. COMELEC reasoned in part that ‘as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some moral precepts espoused by said religions have [seeped] into society and these are not publicly accepted moral norms’.   

The Supreme Court (SC), in reversing the COMELEC decision, reasoned: ‘Our Constitution provides “[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof”. At bottom, what our non-establishment clause calls for is “government neutrality in religious matters”. Clearly, governmental reliance on religious justification is inconsistent with this policy of neutrality.’

It further said, ‘under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its position through normal democratic means. It is in the public square that deeply held convictions and differing opinions should be distilled and deliberated upon’, and that:

‘freedom of expression constitutes one of the essential foundations of a democratic trsociety, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb... This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning one's homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well’.

Most importantly, the SC emphatically ruled:

‘the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to “sex” in Article 26 should be construed to include “sexual orientation”. Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements’.

As it stands, Philippine jurisprudence disregards religious opposition to promotion of LGBTI rights, abides by the principle of non-discrimination, does not consider homosexuality as illegal, and upholds expressions of homosexuality as a protected constitutional right.

It should be borne in mind, however, that the Philippines is primarily a civil law jurisdiction. Rights and privileges are determined through its written Constitution, domestic laws, and international treaties.

In Silverio v Republic,[2] the SC denied the petition of Rommel Silverio (a trans woman) to change her name to ‘Mely’ and the entry for sex from ‘Male’ to ‘Female’ on her birth certificate. The SC explained that the Civil Code covers correction of entries as to acts, events or factual errors that occur after birth. No reasonable interpretation can justify the conclusion that it covers the correction on the ground of sex reassignment.

Interestingly, in Republic v Cagandahan,[3] the SC granted the petition of Jennifer Cagandahan to change his first name to ‘Jeff' and his sex from ‘Female’ to ‘Male’. Jennifer had developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH), while he was growing up. At age 13, tests revealed that Jennifer’s ovarian structures had minimised, he had stopped growing and had no breast or menstrual development. Jennifer alleged that for all interests and appearances as well as in mind and emotion, he had become male.

The SC acknowledged that, ‘the current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification’. It also ruled that it is, ‘of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex’Then the SC concluded:

‘In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH... To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation.’

Regarding marriage, the 1987 Constitution recognises the ‘Filipino family as the foundation of the nation’ and promotes ‘marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State’. The only definition of marriage that exists is in the Family Code, which characterises marriage as a social contract between a man and a woman. Tellingly, there is no clear constitutional prohibition to change this current definition of marriage as to be more inclusive.

In 2015, a petition was filed with the SC. The petition sought to declare Articles 1[4] (definition of marriage) and 2[5] (the contracting parties must be male and female) of the Family Code as unconstitutional and, as a consequence, nullify Articles 46(4)[6] (concealment of homosexuality or lesbianism vitiates marital consent) and 55(6)[7] (homosexuality or lesbianism is a ground for legal separation) of the Family Code.

In Falcis, III v Civil Registrar General,[8] which was decided in September 2019, the SC dismissed the petition for failing to raise a justiciable controversy and that the petitioner had no legal standing. Nonetheless, the SC discussed the legal ramifications of marriage such as: 1) the rights and legal obligations of spouses to each other and their children under the Family Code; 2) succession rights under the Civil Code; 3) rights under the adoption law; 4) sanctions under criminal laws; 5) the effect of marital status under taxation, labour, social security, insurance, and civil service laws; and 6) the presumptions that attach to marital status under the Rules of Court. The SC proceeded to state:

‘This Court must exercise great caution in this task of making a spectrum of identities and relationships legible in our marriage laws, paying attention to “who and what is actualized when the LGBT subject is given a voice”. We must be wary of oversimplifying the complexity of LGBTQI+ identities and relationships, and even render more vulnerable “a range of identities and policies that have refused to conform to state-endorsed normative homo- or heterosexuality”.

Thus, an immediate announcement that the current marriage laws apply in equal and uncalibrated measure to same-sex relationships may operate to unduly shackle those relationships and cause untold confusions on others. With the sheer inadequacies of the Petition, this Court cannot arrogate unto itself the task of weighing and adjusting each of these many circumstances. …

This Court sympathizes with the petitioner with his obvious longing to find a partner. We understand the desire of same-sex couples to seek, not moral judgment based on discrimination from any of our laws, but rather, a balanced recognition of their true, authentic, and responsive choices.

Yet, the time for a definitive judicial fiat may not yet be here. This is not the case that presents the clearest actual factual backdrop to make the precise reasoned judgment our Constitution requires. Perhaps, even before that actual case arrives, our democratically-elected representatives in Congress will have seen the wisdom of acting with dispatch to address the suffering of many of those who choose to love distinctively, uniquely, but no less genuinely and passionately. …’

Currently, LGBTI couples may avail of the rules on co-ownership, partnership, trusts, and contractual stipulations to govern their property relations. However, no law exists governing their relationships or recognising their civil status as such.

There is a civil partnership bill, which legalises civil unions of same-sex couples, pending before the House of Representatives. The Magna Carta for Public Social Workers gives public social workers protection from discrimination based on sexual orientation. The Magna Carta for Women promotes all human rights and fundamental freedoms of women without discrimination as to sex or gender. The SOGIE Equality Bill (which seeks that all persons regardless of sex, sexual orientation or gender identity be treated the same as everyone else, wherein conditions do not differ in the privileges granted and the liabilities enforced), was passed by the House of Representatives and is now pending before the Senate. The implementing rules and regulations of the Anti-Bullying Law includes sexual orientation and gender identity as prohibited grounds for bullying. A number of provinces, cities, and municipalities have passed ordinances prohibiting discrimination against LGBTI people.

In June 2017, the Department of Education issued its Gender-Responsive Basic Education Policy.[9] The Policy recognises that the concept of ‘gender’ includes relations between women and those between men.[10] The Policy further recognises the concepts of ‘gender awareness’, ‘gender-based violence’, ‘gender-based discrimination’, ‘gender expression’, and ‘gender identity’, among others.[11]

In March 2020, the Insurance Commission issued a legal opinion stating that members of the LGBTI community may designate their partners as beneficiaries in their insurance plan.[12]

After a cursory survey of relevant laws and jurisprudence in the Philippines, it is clear that there is a growing but uncoordinated recognition of LGBTI rights within the Philippine legal system. The SC has recognised a constitutional policy on non-discrimination of LGBTI people. Yet, the state has yet to fully implement a definite legal framework within which LGBTI rights are recognised, enforced, and upheld.

 


* A Tagalog word for ‘being out’.

[1] GR No 190582, 8 April 2010.

[2] GR No 174689, 19 October 2007.

[3] GR No 166676, 12 September 2008.

[4] Art 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.

[5] Art 2. No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female; and

(2) Consent freely given in the presence of the solemnizing officer.

[6] Art 46. 'Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

... (4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.'

[7] Art 55. 'A petition for legal separation may be filed on any of the following grounds:

... (6) Lesbianism or homosexuality of the respondent.'

[8] GR No 217910, 3 September 2019.

[9] Republic of the Philippines: Department of Education, DepEd Order No 32, s, 2017 ‘Gender-Responsive Basic Education Policy’, www.deped.gov.ph/wp-content/uploads/2017/06/DO_s2017_032.pdf accessed 18 January 2019.

[10] Gender-Responsive Basic Education Policy, IV. DEFINITION OF TERMS, paragraph b).

[11] Ibid, paragraphs d), e), f), i), and k).

[12] Kristine Joy Patag, Philstar Global, ‘Insurance Commission: LGBTQ members can designate partners as insurance beneficiary’ www.philstar.com/business/2020/03/05/1998381/insurance-commission-lgbtq-members-can-designate-partners-insurance-beneficiary accessed 10 March 2020.