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537,OCTOBER19,2007
373
G.R.No.174689.October19,2007.
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SUPREMECOURTREPORTSANNOTATED
VOL.537,OCTOBER19,2007
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SUPREMECOURTREPORTSANNOTATED
Silverio vs. Republic
VOL.537,OCTOBER19,2007
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SUPREMECOURTREPORTSANNOTATED
Silverio vs. Republic
public policy consequences. First, even the trial court itself found
thatthepetitionwasbutpetitionersfirststeptowardshiseventual
marriage to his male fianc. However, marriage, one of the most
sacred social institutions, is a special contract of permanent union
between a man and a woman. One of its essential requisites is the
legal capacity of the contracting parties who must be a male and a
female.Tograntthechangessoughtbypetitionerwillsubstantially
reconfigure and greatly alter the laws on marriage and family
relations. It will allow the union of a man with another man who
has undergone sex reassignment (a maletofemale postoperative
transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on
employment of women, certain felonies under the Revised Penal
Code and the presumption of survivorship in case of calamities
under Rule 131 of the Rules of Court, among others. These laws
underscore the public policy in relation to women which could be
substantiallyaffectedifpetitionerspetitionweretobegranted.
Same; Same; Same; Separation of Powers; Judicial Legislation;
Article 9 of the Civil Code which mandates that [n]o judge or court
shall decline to render judgment by reason of the silence, obscurity
or insufficiency of the law is not a license for courts to engage in
judicial legislation; In our system of government, it is for the
legislature, should it choose to do so, to determine what guidelines
should govern the recognition of the effects of sex reassignment.It
istruethatArticle9oftheCivilCodemandatesthat[n]ojudgeor
court shall decline to render judgment by reason of the silence,
obscurityorinsufficiencyofthelaw.However,itisnotalicensefor
courts to engage in judicial legislation. The duty of the courts is to
applyorinterpretthelaw,nottomakeoramendit.Inoursystemof
government, it is for the legislature, should it choose to do so, to
determine what guidelines should govern the recognition of the
effects of sex reassignment. The need for legislative guidelines
becomes particularly important in this case where the claims
assertedarestatutebased.
Same; Same; Same; Same; Same; If the legislature intends to
confer on a person who has undergone sex reassignment the
privilege to change his name and sex to conform with his reassigned
sex, it has to enact legislation laying down the guidelines in turn
governing the conferment of that privilege; The Supreme Court
cannot enact a law
379
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PETITIONforreviewoncertiorariofadecisionoftheCourt
ofAppeals.
ThefactsarestatedintheopinionoftheCourt.
Benito R. Cuestaforpetitioner.
The Solicitor Generalforrespondent.
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SUPREMECOURTREPORTSANNOTATED
Silverio vs. Republic
CORONA, J.:
When God created man, He made him in the likeness of God; He
created them male and female.(Genesis5:12)
Amihan gazed upon the bamboo reed planted by Bathala and
she heard voices coming from inside the bamboo. Oh North Wind!
North Wind! Please let us out!, the voices said. She pecked the reed
once, then twice. All of a sudden, the bamboo cracked and slit open.
Out came two human beings; one was a male and the other was a
female. Amihan named the man Malakas (Strong) and the woman
Maganda (Beautiful).(TheLegendofMalakasandMaganda)
Whenisamanamanandwhenisawomanawoman?In
particular, does the law recognize the changes made by a
physician using scalpel, drugs and counseling with regard
to a persons sex? May a person successfully petition for a
changeofnameandsexappearinginthebirthcertificateto
reflecttheresultofasexreassignmentsurgery?
On November 26, 2002, petitioner Rommel Jacinto
Dantes Silverio filed a petition for the change of his first
nameandsexinhisbirthcertificateintheRegionalTrial
Court of Manila, Branch 8. The petition, docketed as SP
CaseNo.02105207,impleadedthecivilregistrarofManila
asrespondent.
Petitionerallegedinhispetitionthathewasborninthe
CityofManilatothespousesMelecioPetinesSilverioand
Anita Aquino Dantes on April 4, 1962. His name was
registered as Rommel Jacinto Dantes Silverio in his
certificate of live birth (birth certificate). His sex was
registeredasmale.
Hefurtherallegedthatheisamaletranssexual,thatis,
anatomically male but feels, thinks and acts as a female
and that he
had always identified himself with girls since
1
childhood. Feeling trapped in a mans body, he consulted
several
_______________
1 Petitioner went for his elementary and high school, as well as his
BachelorofScienceinStatisticsandMasterofArts,intheUniversityof
thePhilippines.HetookupPopulationStudiesProgram,
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oschiectomy[ororchiectomywhichisthesurgicalexcisionofthetestes]
penileskininversionvaginoplasty[plasticsurgeryofthevagina]clitoral
hood reconstruction and augmentation mammoplasty [surgical
enhancementofthesizeandshapeofthebreasts].Id.
3OnJanuary23,2003,January30,2003andFebruary6,2003.
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Silverio vs. Republic
4
OnJune4,2003,thetrialcourtrenderedadecision infavor
ofpetitioner.Itsrelevantportionsread:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive but
solely for the purpose of making his birth records compatible with
hispresentsex.
Thesoleissuehereiswhetherornotpetitionerisentitledtothe
reliefaskedfor.
The[c]ourtrulesintheaffirmative.
Firstly, the [c]ourt is of the opinion that granting the petition
would be more in consonance with the principles of justice and
equity.Withhissexual[reassignment],petitioner,whohasalways
felt,thoughtandactedlikeawoman,nowpossessesthephysiqueof
a female. Petitioners misfortune to be trapped in a mans body is
nothisowndoingandshouldnotbeinanywaytakenagainsthim.
Likewise,the[c]ourtbelievesthatnoharm,injury[or]prejudice
will be caused to anybody or the community in granting the
petition. On the contrary, granting the petition would bring the
muchawaited happiness on the part of the petitioner and her
[fianc]andtherealizationoftheirdreams.
Finally,noevidencewaspresentedtoshowanycauseorground
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JusticesMarinaL.BuzonandAuroraSantiagoLagmanconcurring.Rollo, pp.
2533.
9ResolutiondatedSeptember14,2006,id.,pp.4546.
10 An Act Authorizing the City or Municipal Civil Registrar or the Consul
GeneraltoCorrectaClericalorTypographicalErrorinanEntryand/orChange
of First Name or Nickname in the Civil Register Without Need of a Judicial
Order,AmendingforthePurposeArticles376and412oftheCivilCodeofthe
Philippines.
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SUPREMECOURTREPORTSANNOTATED
Silverio vs. Republic
records
Petitionerbelievesthatafterhavingacquiredthephysical
featuresofafemale,hebecameentitledtothecivilregistry
changessought.Wedisagree.
The State has an interest in the names borne11 by
individuals and entities for purposes of identification.
A
12
change of name is a privilege, not a right. Petitions
for
13
change of name are controlled by statutes. In this
connection,Article376oftheCivilCodeprovides:
ART. 376. No person can change his name or surname without
judicialauthority.
RA9048nowgovernsthechangeoffirstname. Itveststhe
powerandauthoritytoentertainpetitionsforchangeof
_______________
11
2005,454SCRA155.
12Id.
13 K
371,560P.2d1070(1977).
14 Under Section 2 (6) of RA 9048, first name refers to a name or
nicknamegiventoapersonwhichmayconsistofoneormorenamesin
addition to the middle names and last names. Thus, the term first
namewillbeusedheretoreferbothtofirstnameandnickname.
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Silverio vs. Republic
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firstnametothecityormunicipalcivilregistrarorconsul
general concerned. Under the law, therefore, jurisdiction
overapplicationsforchangeoffirstnameisnowprimarily
lodgedwiththeaforementionedadministrativeofficers.The
intentandeffectofthelawistoexcludethechangeoffirst
namefromthecoverageofRules103(ChangeofName)and
108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an
administrativepetitionforchangeofnameisfirstfiledand
15
subsequently denied.
It likewise lays down the
16
correspondingvenue,
_______________
15ThelastparagraphofSection7ofRA9048provides:
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SUPREMECOURTREPORTSANNOTATED
Silverio vs. Republic
17
Allpetitionsfortheclericalortypographicalerrorsand/orchangeof
firstnamesornicknamesmaybeavailedofonlyonce.
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387
20
SCRA189.
19Supranote11.
20Id.
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SUPREMECOURTREPORTSANNOTATED
Silverio vs. Republic
_______________
21In
re Ladrach, 32OhioMisc.2d6,513N.E.2d828(1987).
22Lee
23
v. Court of Appeals,419Phil.392;367SCRA110(2001).
Id.
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UnderRA9048,acorrectioninthecivilregistryinvolving
the change of sex is not a mere clerical or typographical
error. It is a substantial change for which the applicable
procedureisRule108oftheRulesofCourt.
The entries envisaged in Article 412 of the Civil Code
and correctable under Rule 108 of the Rules of Court24are
thoseprovidedinArticles407and408oftheCivilCode:
ART. 407. Acts, events and judicial decrees concerning the civil
statusofpersonsshallberecordedinthecivilregister.
ART.408.Thefollowingshallbeenteredinthecivilregister:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void
from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgmentsofnaturalchildren;(10)naturalization;(11)loss,
or (12) recovery of citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary emancipation of a minor;
and(16)changesofname.
423SCRA420.
25Id.
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SUPREMECOURTREPORTSANNOTATED
Silverio vs. Republic
v. Republic,120Phil.114;11SCRA109(1964).
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tion,marriage,divorce,andsometimesevensuccession. (emphasis
supplied)
Apersonssexisanessentialfactorinmarriageandfamily
relations. It is a part of a persons legal capacity and civil
status. In this connection, Article 413 of the Civil Code
provides:
ART. 413. All other matters pertaining to the registration of civil
statusshallbegovernedbyspeciallaws.
Edition,RexBookstore,p.238.
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SUPREMECOURTREPORTSANNOTATED
Silverio vs. Republic
and412oftheCivilCodewhichauthorizestherecordingofacts,events
and judicial decrees or the correction or change of errors including
those that occur after birth. Nonetheless, in such cases, the entries in
thecertificatesofbirtharenotbecorrectedorchanged.Thedecisionof
the court granting the petition shall be annotated in the certificates of
birth and shall form part of the civil register in the Office of the Local
CivilRegistrar.(Co v. Civil Register of Manila,supranote24)
30Theerrorpertainstoonewherethebirthattendantwritesmale
orfemalebutthegenitalsofthechildarethatoftheoppositesex.
31Moreover,petitionersfemaleanatomyisallmanmade.Thebody
that he inhabits is a male body in all aspects other than what the
physicianshavesupplied.
32BlacksLawDictionary,8thedition(2004),p.1406.
33WordsandPhrases,volume39,PermanentEdition,p.106.
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ovaorbearsyoung andmaleisthesexthathasorgansto
35
producespermatozoaforfertilizingova. Thus, the words
male and female in everyday understanding do not
include persons who have undergone sex reassignment.
Furthermore,wordsthatareemployedinastatutewhich
had at the time a wellknown meaning are presumed to
havebeenusedinthatsenseunlessthecontextcompelsto
36
the contrary. Since the statutory language of the Civil
Register Law was enacted in the early 1900s and remains
unchanged,itcannotbearguedthatthetermsexasused
then is something alterable through surgery or something
that allows a postoperative maletofemale transsexual to
beincludedinthecategoryfemale.
For these reasons, while petitioner may have succeeded
in altering his body and appearance through the
intervention of modern surgery, no law authorizes the
changeofentryastosexinthecivilregistryforthatreason.
Thus, there is no legal basis for his petition for the
correctionorchangeoftheentriesinhisbirthcertificate.
Neither May Entries in the Birth
Certificate As to First Name or Sex
Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in
consonance with the principles of justice and equity. It
believed that allowing the petition would cause no harm,
injuryorprejudicetoanyone.Thisiswrong.
The changes sought by petitioner will have serious and
wideranging legal and public policy consequences. First,
even
_______________
34
55L.Ed.619.
394
394
SUPREMECOURTREPORTSANNOTATED
These are Articles 130 to 138 of the Labor Code which include
nightwork
prohibition,
facilities
for
women,
prohibition
on
discriminationandstipulationagainstmarriage,amongothers.
40
qualifiedseduction,simpleseductionandactsoflasciviousnesswiththe
consent of the offended party and Articles 342 and 343 on forcible and
consentedabduction,amongothers.
41Section3(jj)(4).
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conferonapersonwhohasundergonesexreassignmentthe
privilege to change his name and sex to conform with his
reassigned sex, it has to enact legislation laying down the
guidelines in turn governing the conferment of that
privilege.
ItmightbetheoreticallypossibleforthisCourttowritea
protocol on when a person may be recognized as having
successfully changed his sex. However, this Court has no
authority to fashion a law on that matter, or on anything
else.TheCourtcannotenactalawwherenolawexists.It
canonlyapplyorinterpretthewrittenwordofitscoequal
branchofgovernment,Congress.
Petitioner pleads that [t]he 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
remediespetitionerseeksinvolvequestionsofpublicpolicy
tobeaddressedsolelybythelegislature,notbythecourts.
WHEREFORE,thepetitionisherebyDENIED.
Costsagainstpetitioner.
SOORDERED.
Puno (C.J., Chairperson), SandovalGutierrez,
AzcunaandGarcia, JJ.,concur.
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SUPREMECOURTREPORTSANNOTATED