Northwestern University

College of Law
Laoag City, Ilocos Norte

A Research to the Rights of a Member

of the LGBT Community to Higher
Education

By:
AGUSTIN, KENNETH PAUL CHRISTIAN M.
BARENG, JOEMAR EMIL
DANCEL, JAKE BRYSON R.

INTRODUCTION
Everyone has the right to education.1
Preparatory Statement
The Philippines is one of the most gay-friendly countries of the world. The
rights of the members of the gay community has been embraced by majority
of the Filipinos and are generally accepted in the society. The country
recognizes their contribution in various sectors; from politics, academe, media,
corporate, and various industries. As persons, they are afforded with equal
rights that should not be undermined by no other persons. The due process
and equal protection clauses of the 1987 Constitution provides:
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 law.2

Thesis Statement
The right to education is inherent in every person regardless of his age,
sex, sexual orientation, class, and religious beliefs. A person should be
accepted and respected in the exercise of his rights, particularly, the right to
be educated and the right to pursue his profession.
Background of the case
The case before us involves a college student who was enrolled in a
private non-sectarian higher education institution that expelled him due to
alleged violation of the school policy, among others, violation of the school
dress code.
The client is a homosexual male who took hormones for him to grow
breasts and to look more like that of a woman. As his physical appearance
started to change, he started using bras and eventually, started using uniforms
of the other sex. The institution prohibits crossdressing among their students and
since the client continuously violated the dress code, he was expelled. The
client claims that he was unjustly expelled and was discriminated due to his
sexual preference.
Definition of Terms
Transgender a person who have undergone medical procedure to
alter or modify his or her reproductive organ.
Homosexual a person who feels that he or she belongs to the opposite
sex without having to undergo medical procedure. It is usually rooted to the
psychological aspect of a human being.
Cross-dressing the act of wearing the attire generally used by the sex
opposite to that person performing such act.

1
2

Article 26, Universal Declaration of Human Rights

Section 1, Article III, 1987 Constitution

Discrimination the undermining of a persons to another on the basis of

gender, sexual orientation, age, political and religious beliefs, color, or race.
Education the process of acquiring knowledge by way of completing
a curriculum set forth by competent authorities.
LGBT a community of persons who feels that they belong to the sex
opposite to them. It includes both homosexuals and bisexual individuals.
PROBLEM STATEMENT
The Issues
1. Whether or not the institution can validly expel the client due to academic
freedom.
2. Whether or not the client should be allowed to wear the attire of the
opposite sex while enrolled in the institution.
POSSIBLE COUNTER-ARGUMENTS
It is indispensable to a nation's well-being, especially in view of the rapid
growth of knowledge and the complexity of modern life, that education on
the collegiate and university level be not only maintained but also improved.
The standard of instruction must be kept rigorous and exacting.3
The institution, therefore, has the constitutional right to academic
freedom. It can adopt policies so as to provide quality education and personal
development to its students. The No Cross-dressing Policy is one of these
policies. Cross Dressing in either gender (male or female) may lead to
confusion to certain kinds of action like access to public comfort rooms, dress
codes of occasions, etc. It may also lead to the school being criticized for
tolerating immorality. Even prior to the client being admitted to the school, the
policy had been longstanding and had met no oppositions. The client must
therefore conform with this practice. Notwithstanding the Clients knowledge
of this policy, he opted to deliberately consume the drugs that would alter his
physical appearance. He is therefore estopped from claiming exemption from
the aforesaid school policy.
The policy is the law of the school in the exercise of its right to academic
freedom and as such, it should be understood that it is binding to every student
who enrolls in the institution. Deviance from the policy would violate the Latin
maxim: Dura Lex Sed Lex, The law may be harsh, but it is the law. The Client
was well-equipped with this policy as the school conducts annual orientation
to all its new students. It is elementary in statutory construction that when the
law speaks in a clear and unequivocal manner, there is no room for
interpretation. The school had expressly provided for this rule and therefore, it
has eliminated all ambiguity or vagueness to the application of the policy.
Homosexual conduct, and perhaps homosexuals themselves, have
borne the brunt of societal disapproval. Nonetheless, we recall that the
Philippines have not seen fit to criminalize homosexual conduct. Evidently,
Academic Freedom as A Constitutional Right, Enrique M. Fernando, Philippine Law Journal,
Vol. LII, Number 3, 1977, p. 290
3

therefore, these "generally accepted public morals" have not been

convincingly transplanted into the realm of law. Manila Representative
Bienvenido Abante, also a bishop of the Metropolitan Bible Baptist Church,
opposed the passage of House Bill 637 or the "Act Prohibiting Discrimination on
Basis of Sexual Orientation and Gender Identity and Providing penalties
thereof". Abante blocked the passage of the bill by claiming that it would
promote "same-sex marriage." Abante also stated that LGBT rights are not
fundamental human rights issues, and he claimed that as the chairman of the
human rights committee, he is not even aware of the bill.4
ARGUMENTS
No less than Article XIV of the 1987 constitution provides: Section 1. The
state shall protect and promote the right of all citizens to quality education at
all levels x x x.5
It must be noted that a constitutional provision is self-executing if the
nature and extent of the right conferred and the liability imposed are fixed by
the constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject
is referred to the legislature for action.6
The equal protection clause guarantees that no person or class of
persons shall be deprived of the same protection of laws which is enjoyed by
other persons or other classes in the same place and in like circumstances.7
The sexual preference of a student should not be a hindrance for him to
pursue his education. More importantly, his choice to wear the attire or uniform
of the other gender so as not to scandalize the institution is only but proper.
The primary reason why a person seeks education is to acquire knowledge; to
apply such knowledge in his future career or profession; and to contribute to
the society.
There is no indication that the client aims to deviate from the institutions
dress code. Apparently, he is still complying with the policy by wearing their
school uniform. Besides, it is not ones appearance that matters, it is his
persistence to achieve his dream of becoming successful.
A person may cross dress of his gender or of that of a different gender;
there is great divide between thoughts and action. The Latin Maxim nullum
crimen, nulla poena sine lege which means that there is no crime where there
is no law punishing it. No law exist that has been penalizing or criminalizing
homosexual behavior or expressions like cross dressing.
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are
favorably received but also to those that offend, shock, or disturb. Any

House Rights chair hit for blocking bill on gay rights, Philip Tubeza, Philippine Daily Inquirer, 2
November 2002, p. A2
5 Section 1, Article XIV, 1987 Constitution
6 Manila Prince Hotel vs. GSIS, 78 SCAD 764
7 Abakada Guro Party vs. Executive Secretary, 469 SCRA 11
4

restriction imposed in this sphere must be proportionate to the legitimate aim

pursued. The client should not be deprived of this freedom.
Poverty is a societal problem that is usually associated to lack of
education. In the Philippines, a large number of students, of all levels,
experience poverty. Most of them would barely have enough money to pay
for their school dues, school supplies, allowance, or transportation, and yet,
schools would still require them to comply with the requirement of using the
school uniform and/or following the dress codes. Here, we have an example
of a more fortunate student who only desires to be happy by following his
heart. If the students who can barely or not even afford to buy their uniform
are allowed to be educated, why would someone who can afford and is
religiously wearing the school uniform be deprived of the same? To do so
would defeat the aforesaid equal protection clause of the constitution.
It must also be noted we are living in the contemporaneous world;
where a significant number of people, who may be classified as LGBTs, are
playing a major role in the society; politicians, celebrities, educators, laborers,
and other professionals. We cannot deny the fact that the world had evolved
a lot and that there is nothing that we can do but to embrace these changes.
The problem with the society is there are too many decent people. But
what are the standards that were set for them to be qualified to be called
decent? Was it because they have eradicated all the indecencies that they
have with themselves, or is it how they look into the indecencies of others for
them to be called more decent, and ultimately claim to be decent. If that is
the case, then the term indecent would be improper; the proper term is
either more decent or less decent.
The institution cannot validly claim the so-called academic freedom. A
close inspection to the spirit of the provision on academic freedom shows
nothing about strict adherence to school policies. The academic freedom as
contemplated in the UP Law Journal, either in the institutional level or the
teacher level has nothing to do with this case. Thus, should not be given any
merit as it is irrelevant to the case at bar. It must be noted that we are living in
a democratic society, as manifested in the Constitution:
Section 1. The Philippines is a democratic and republican state.
Sovereignty resides in the people and all governmental authority emanates
from them.8

Our international obligation is to protect and promote human

rights. International human rights law, in particular, has grown dynamically in
its attempt to bring about a more just and humane world order.
Article 26 of the International Covenant on Civil and Political Rights
(ICCPR) provides:
All persons are equal before the law and are entitled without any
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,

Section 1, Article II, 1987 Constitution.

colour, sex, language, religion, political or other opinion, national or social

origin, property, birth or other status.9

The principle of non-discrimination requires that laws of general

application relating to equal protection 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.10

The Anti SOGI (Sexual Orientation or Gender Identity)

Discrimination Bill11 seeks to define, prohibit and penalize situation and
practices wherein discrimination on the basis of sexual orientation and gender
identity occur. It also aims to protect members of the Lesbian, Gay, Bi-sexual,
Transgender (LGBT) community and guarantee their rights as citizens of the
Republic of the Philippines and their rights as a human being.6 The definition of
gender identity states in House Bill No. 267:
Section 3. Definition of Terms. As used in this Act, the following
terms shall be defined as follows:
(a) Discrimination x x x ...
(b) Gender Identity refers to the personal sense of identity
as characterized, among others by manner of clothing, inclinations,
and behavior in relation to masculine or feminine convention. A
person may have male or female identity with the psychological
characteristics x x x 12

The President Rodrigo Roa Duterte has also firmly condemned

discrimination against the LGBT community in the Philippines. He has said that
as President, he would protect every right of his people. In an appearance on
a Philippine talk show last summer, he said that hed have no issue with his son
if he came out as gay, and said that everyone deserves to be happy.13
CONCLUSION
Everybody has been afforded with his right to education and should
not be deprived of such as it would defeat the very purpose of the
Constitution; to provide every person of the right to be educated, regardless
of his gender, sexual orientation, age, political and religious beliefs, color, or
race.
Academic freedom as a right as aforecited does not include the right
to sanction a student on the basis of his sexual orientation, such right does not
Article 26, International Covenant on Civil and Political Rights
Toonen vs. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994)
11 House Bill No. 267
12 Id.
13 Four Things You Didnt Know About the New Philippine President Rodrigo Duterte, Nash
Jenkins, time.com, 11 May 2016
9

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even exist. The penalty imposed by the institution is too harsh as it would
disturbingly violate the right of such student to the equal opportunity or access
to education. It would also inflict additional pressure to students because such
act would question if the feelings the student have is wrong or not accepted.
Expulsion should be strictly construed against the institution and liberally in
favor of the student, it being a derogation of rights. Expulsion should be
backed with a showing of grave misconduct or palpable violation of the
institutions policies and the burden of proof rests on the institution itself. This was
not shown by the institution. It should therefore set aside its earlier decision of
having the client expelled from the institution.
However, the right of the institution to discipline its students should not
be completely disregarded. The client may be allowed to be reinstated in the
institution provided that he will refrain from cross-dressing. This is so as not to
disturb public order and public policy within the confines of the institution. It is
heretofore advised that the client adopt the method employed by lesbians in
concealing their lactation organs. The exercise of his freedom of expression is
only limited by the school campus or any activity associated with academic
gatherings. His right to exercise such freedom shall not be deprived to him
while he is out in the society. As mentioned earlier, the Philippines is a
democratic country and has even been regarded as one of the most gayfriendly countries in the world.