Angeles University Foundation

School of Law
Mc Arthur Hi-Way, Angeles City 2009
A.Y. 2013-2014

LEGAL MEMORANDUM:
GENDER IDENTITY





By
Paul Christopher G. Pineda RN, MAN, MFR
JD1



A Research Paper Submitted to:
Atty. Javier Flores
In Partial Fulfillment of the Requirements for Legal Research



April 20, 2014

ISSUE

Whether or not there is hope in the Philippines for meaningful
change in the laws to accommodate gender-change in legal records
someday.

DISCUSSION

At present, the existing jurisprudence does not allow gender change
in legal orders as enunciated in the case of ROMMEL JACINTO DANTES
SILVERIO vs. REPUBLIC OF THE PHILIPPINES.
1
In this case, the petitioner is
asking the court to allow him to change his name and his gender in his birth
records on the basis of sexual reassignment surgery. He petitions to change
his gender from male to female so he could be allowed to marry his fianc.
As stated by the court, Petitioner pleads that the unfortunates are also
entitled to a life of happiness, contentment and the realization of their
dreams. No argument about that. The Court recognizes that there are
people whose preferences and orientation do not fit neatly into the
commonly recognized parameters of social convention and that, at least for
them, life is indeed an ordeal. However, the remedies petitioner seeks
involve questions of public policy to be addressed solely by the legislature,
not by the courts.
2


But in the case of REPUBLIC OF THE PHILIPPINES vs. JENNIFER
CAGANDAHAN,
3
wherein she pleads to change the gender in her certificate
of live birth from female-to-male on the basis of his congenital medical
condition known as Congenital Adrenal Hyperplasia
4
, it was allowed by the
high court. In the said case the court specified that The current state of

1
G.R. No. 174689. October 19, 2007
2
Ibid
3
G.R. No. 166676, September 12, 2008
4
Congenital adrenal hyperplasia is a collection of genetic conditions that limit your adrenal
glands' ability to make certain vital hormones. Congenital adrenal hyperplasia can cause
problems with normal growth and development in children including normal development of the
genitals. It affects both males and females. (http://www.mayoclinic.org/diseases-
conditions/congenital-adrenal-hyperplasia/basics/definition/con-20030910)

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. In the instant case, if we determine respondent to be a
female, then there is no basis for a change in the birth certificate entry for
gender. But if we determine, based on medical testimony and scientific
development showing the respondent to be other than female, then a
change in the subjects birth certificate entry is in order.
5


Also in the same case as pronounced by the high court, 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. In the absence of
evidence that respondent is an incompetent
6
and in the absence of
evidence to show that classifying respondent as a male will harm other
members of society who are equally entitled to protection under the
law.
7


If the court was able to allow flexibility in the rigid state of Philippine
statutes that compels that a person be classified either as a male or a
female by basing it on medical and scientific evidences, same jurisprudence
can also apply to those clients who suffer from Gender Dysphoria
8
, it being
a medical condition.


5
G.R. No. 166676, September 12, 2008
6
The word incompetent includes persons suffering the penalty of civil interdiction or who are
hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of
unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by
reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of
themselves and manage their property, becoming thereby an easy prey for deceit and exploitation. (See
Sec. 2 of Rule 92 of the Rules of Court)
7
G.R. No. 166676, September 12, 2008
8
Denotes strong and persistent feelings of discomfort with one's assigned sex, the desire to possess the
body of the other sex, and the desire to be regarded by others as a member of the other sex, Diagnostic
and Statistical Manual of Mental Disorders (DSM IV-TR) (4th ed., text rev.; APA, 2000), page 535
This decision of the Supreme Court gives a little hope for
transgenders
9
that there would be changes in the Philippines regarding the
view in gender change in legal records.

Such the case, the answer to the issue would be yes, there is hope in
the Philippines for meaningful change in the laws to accommodate gender-
change in legal records someday.

The Constitution is drafted not to be specific nor to enumerate
particulars to make it flexible and cover all the rights and duties of the
sovereigns with the changing times. In this context, even though protection
against sexual discrimination is not particularly mentioned in the Bill of
Rights of the Constitution, it does not mean that such right is not available
to the people.

The Bill of Rights of the 1987 Constitution provides an equal
protection clause
10
which prescribes discrimination on the basis of sexual
orientation or other status in the enjoyment of rights. As explained by a
well-known constitutionalist, the equal protection clause is the specific
constitutional guarantee of equality of the person.
11


The equal protection clause in the Bill of Rights prescribes protection
against discrimination on the basis of sexual orientation or other status in
the enjoyment of rights. In the case J.M. Tuason and Co. vs. The Land
Tenure Administration, it was reiterated that the equal protection clause
requires that laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same

9
Transgender is the state of one's gender identity (self-identification as woman, man, neither or both) or
gender expression not matching one's assigned sex (identification by others as male, female
or intersex based on physical/genetic sex): Gay and Lesbian Alliance Against Defamation. GLAAD Media
Reference Guide - Transgender glossary of terms", GLAAD, USA, May 2010. Retrieved on 2011-02-24.
10
Philippine Constitution, Article III, Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal protection of the laws.
11
J. Bemas, S.J., Constitutional Rights and Social Demands: Notes and Cases, Vol. I1 [1991], p. 48
manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed.
12


The State Policies also pronounces: [t]he State values the dignity of
every human person and guarantees full respect for human rights.
13

Furthermore, the Constitution imposes on the State the duty to ensure the
fundamental equality before law of women and men.
14


In addition, the Philippines ratified the International Covenant on
Civil and Political Rights (ICCPR) in 1986 and other international agreements
that seek to ensure respect for the human rights of all persons regardless of
sex, sexual orientation or other condition. The Universal Declaration of
Human Rights (UDHR) is part of the customary international law and is
binding to all members of the United Nations (UN). Being a responsible
member of the UN and pursuant to the dictates of our Constitution, it is a
must for the Legislative Department to provide a solid instrument for
protection against discrimination on the basis of sexual orientation in the
Philippines.

The treaties ratified by the Philippine government with the United
Nations can be used as a basis for the legislation to come up with the law
regarding gender identity. This will allow transgenders to change their
name and gender in legal documents, on the basis of preventing
discrimination and will allow them to enjoy the rights aligned to their sexual
orientation. The legal obligation of the State to safeguard the human rights
of LGBT and intersex people is well-established in international human
rights law on the basis of the Universal Declaration of Human Rights and
subsequently agreed to in international human rights treaties.
15



12
J.M. Tuason and Co. vs. The Land Tenure Administration, 31 SCRA 413
13
Isagani Cruz, Constitutional Law 2007, Philippine Constitution, Article II, Section 11, p395
14
Isagani Cruz, Constitutional Law 2007, Philippine Constitution, Article II, Section 14, p395
15
United Nations Human Rights, Office of the High Commissioner, Born Free And Equal: Sexual
Orientation and Gender Identity in International Human Rights Law, New York and Geneva 2012
All people, irrespective of sex, sexual orientation or gender identity,
are entitled to enjoy the protections provided for by international human
rights law. This includes respect for right to life, security of person and
privacy, the right to be free from torture, arbitrary arrest and detention,
the right to be free from discrimination and the right to freedom of
expression, association and peaceful assembly.
16
Such protection can be
attained if a legislation for gender identity would be passed, allowing
transgenders to align their sexual orientation with their legal documents.

The recent international jurisprudences are seated on the Universal
Declaration of Human Rights (UDHR) and International Covenant on Civil
and Political Rights (ICCPR). As stated in Article 2 of the UHDR, Everyone is
entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a
person belongs, whether it be independent, trust, non-self-governing or
under any other limitation of sovereignty
17
and, Article 7 states: All are
equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to
such discrimination.
18


The ICCPR, as laid down in Article 2(1), states that Each State Party
to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status and in Article 26, it states that
All persons are equal before the law and are entitled without any

16
Ibid
17
Universal Declaration of Human Rights, http://www.un.org/en/documents/udhr/index.shtml#a2, Time
and Date accessed: 02:11am, March 10, 2014.
18
Universal Declaration of Human Rights, http://www.un.org/en/documents/udhr/index.shtml#a7, Time
and Date accessed: 02:11am, March 10, 2014.
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.
19
(Emphasis Supplied)

The UDHR, the International Covenant on Civil and Political Rights,
and the International Covenant on Economic, Social Cultural and Rights all
include an enumeration of prohibited grounds of discrimination in their
non-discrimination clauses. Even though these enumerations do not
expressly include sexual orientation or gender identity, they
nonetheless conclude that the words other status covers those that are
not explicitly mentioned in the non-discrimination guarantees. The use of
the aforementioned phrase shows that the list was intended to be open-
ended and illustrative; in other words, the grounds on discrimination are
not limited. Thus, in the case of Toonen, the Human Rights Committee
stated that the reference to sex in article 2, paragraph 1 and 26 is to be
taken as including sexual orientation.
20


It is worthy to note that some countries have already allowed gender
identification acts that will allow a transgender or a transsexual to change
the entries in their respective birth certificate.

The state of Massachusetts General Laws, Chapter 46, Section 13(e)
states that:

In Massachusetts, a person can legally change his or her sex
marker as recorded on his or her birth certificate after undergoing sex
reassignment surgery. Sex reassignment surgery is not defined in the
Act; it is left up to the persons personal physician to determine the
appropriate measures.

19
United Nations Human Rights, Office of the High Commissioner, Born Free And Equal: Sexual
Orientation and Gender Identity in International Human Rights Law, New York and Geneva 2012
20
Toonen v. Australia, Comm. No. 488/1992, para. 8.7, U.N. Doc. CCPR/C/50/d/499/1992 (1994) (stating
that the reference to sex in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.)
Section 13(e): If a person has completed sex reassignment
surgery, so-called, and has had his name legally changed by a court of
competent jurisdiction, the birth record of said person shall be
amended to reflect the newly acquired sex and name, provided that
an affidavit is received by the town clerk, executed by the person to
whom the record relates, and accompanied by a physicians notarized
statement that the person named on the birth record has completed
sex reassignment surgery, so-called, and is not of the sex recorded on
said record. Said affidavit shall also be accompanied by a certified
copy of the legal change of name aforementioned above.
21


The above mentioned legislation does not cover the transgender who
has not undergone SRS. Unlike the law provided in Spain enacted in 2007
entitled, The Rectification of the Mentions of the Gender in Registries
22

which Outlines the requirements for changing ones gender entry and/or
name to reflect gender identity in the Civil Registrar. To change ones
gender, the individual must have a diagnosis of gender dysphoria and show
proof of medical treatment for at least two years. A diagnosis of gender
dysphoria requires a doctor or clinical psychological to affirm the existence
of a stable and persistent discrepancy between the sex and the gender
identity of the individual and to confirm the absence of personality
dysfunctions that could decisively influence the existence of this
discrepancy. The individual must also submit proof of having been medically
treated for at least two years to adapt his/her physical characteristics to
those corresponding to the claimed sex, although gender reassignment
surgery is not a prerequisite for a diagnosis of gender dysphoria.
23


Such legislation promote equality of opportunity, and provides
remedies in respect of discrimination, on gender history grounds in certain
cases and for connected purposes wherein persons who are able to change

21
The 188
th
General Court of Massachusetts, Section 13(e),
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVII/Chapter46/Section13, Time and Date
accessed: 02:11am, March 10, 2014.
22
University of Toronto, Faculty of Law, SPAIN - Sogi Legislation Country Report Produced: December
2012 p.5
23
Ibid
their name and gender corresponding their gender identity will be given a
chance to live a life free from discrimination or alienation from the society.

In line with this, there are two (2) pending bills in the senate that
pertain to anti-gender discrimination acts: Senate Bill No. 1738 ANTI-
GENDER DISCRIMINATION ACT
24
filed on August 23, 2004 by Ramon A.
Revilla Jr. and Senate Bill No. 1641 ANTI-DISCRIMINATION ACT
25
filed on
August 4, 2004 by Miriam Defensor-Santiago. This just shows that the
legislative department has already started to propose laws that pertain to
gender identity and the protection of the LGBT community. But still, the
issue regarding gender change in birth records is a topic left untouched.

CONCLUSION

The Supreme Court have upheld certain decisions in favor of a
petitioner to change his gender in his records, but only in cases similar to
that of Jeff Cagandahan
26
who suffers from a congenital condition. The
current rigid state of Philippine statutes which compels that a person be
classified either as a male or as a female, was interpreted by the court in a
more flexible way that accommodated the case of the petitioner stated
above, though technically he was still biologically female.

Also, the three pending Senate Bills authored by, Senator Revilla,
Senator Santiago and Former Senator Luisa Ejercito are positive signs that
may spearhead the breaking of the conservative view of the government
regarding sexual orientation. And the possibility of allowing changes on
legal documents of transgenders to allow them to align their sexual

24
AN ACT PROHIBITING DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION AND
GENDER IDENTITY AND PROVIDING PENALTIES THEREFOR,
http://www.senate.gov.ph/lis/bill_res.aspx?congress=13&q=SBN-1738
25
AN ACT PROHIBITING DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION AND
PROVIDING PENALTIES THEREFOR,
http://www.senate.gov.ph/lis/bill_res.aspx?congress=13&q=SBN-1641
26
G.R. No. 166676, September 12, 2008

orientation with their legal documents so as to exercise their rights and
protect them from discrimination.

Another is the international trend that some of the countries are
already changing their views on sexual orientation and are providing
legislations that will protect the rights of the LGBT community. Some of
these countries are: Argentina, Australia, Belgium, Bolivia, Botswana,
Canada, Chile, Colombia, Germany, Iran, Israel, Japan, Mexico,
Montenegro, Mozambique, Netherlands, Slovenia, South Africa, South
Korea, Spain, Sweden, Turkey, United Kingdom, and the United States of
America.
27


Based on this, there is hope that legislation will be passed by the
legislative department to answer the prayers of those who petition to have
their gender changed in their birth records, especially those who are
diagnosed with gender dysphoria.



27
International Commission of Jurist. SOGI Legislative Database. http://www.icj.org/sogi-legislative-
database/ Date and time retrieved: March 7, 2014, 12:46am