Diary of a Transgender Filipina

Archive for the ‘Translaw’ Category

What’s in a Supreme Court decision (Part 4)?

Posted by pinaytg on October 7, 2008

I think that the main reason why Jeff Cagandahan’s petition was granted by the Philippine Supreme Court (SC) is luck. He was lucky to have had that set of judges who decided to be compassionate to his situation and permit him to change his name and sex in his birth certificate. The SC ruling on Dr. Silverio’s case said it all: “[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law.”


So that is what exactly happened here. While with Dr. Silverio’s case the SC chose to affirm the “silence, obscurity or insufficiency of the law”, it chose to do the opposite with Cagandahan. The SC went out of its way to try to understand intersex conditions (albeit in a way that left much to be desired: by perusing Wikipedia entries) and ruled in a way that affirmed what legal expert Louis Swartz calls the common sense belief that that “the law should change with the times, be up to date, should be practical and realistic.”


In spite of the fact that the law is silent on both transsexualism and intersex, this did not stop the SC from making a ruling concerning the latter. And in the practical concern of resolving Jeff Cagandahan’s gender, the SC chose to be modern and realistic. Since Cagandahan’s CAH makes him male and since he presents and thinks of himself as one in spite of chromosomal and genital evidence to the contrary, then by all intents and purposes he is male.


Why did the same thing not happen in Dr. Silverio’s/Mely case? Simple. Homophobia. If you read the SC ruling on Mely, the first thing that will strike you is the fact that it begins with a quote from two creation stories, one from Genesis in the Bible and another from the Martial Law-manufactured Philippine creation myth, The Legend of Malakas (Strong) and Maganda (Beautiful).


The SC could have chosen to understand transsexualism. It is after all a medical condition recognized globally. (And there is a Wikipedia entry on it!) Add to that a ton of case law from all over the world that spotlights the issue. Just two years ago in 2006 even the South Korean Supreme Court allowed a female citizen who transitioned to male to change his gender in his registry. In his decision, ruling Justice Kim Ji-hyung said “If one is clearly recognizable as the opposite sex in both appearance and individual and social life after having sex-change surgery, he or she has the right to pursue dignity, value and happiness as a human and live humanely.”

In Europe, countries like Spain, Poland, Germany Lithuania, Romania, Netherlands, and Ireland grant legal recognition to their transsexual citizens. The UK, for instance, has a Gender Recognition Law in place that recognizes the gender of British transsexuals and their right to legal name and sex changes in documents. In Australia and New Zealand, marriages where one spouse is transsexual are now recognized. In Cuba, sex-reassignment surgery is sanctioned by the State. In some American states and jurisdictions, trans people are protected by gender-identity-and-expression-inclusive laws. In Asia, countries such as Singapore, Malaysia, China, HK and Japan all have trans friendly laws. The SC could have turned to all these to render an objective judgment but it did not.


Partly to blame in what happened is probably Mely’s own legal team. In Part 3, I said that even if Mely’s lawyer informed the court that she did not identify as the gender she was assigned at birth, he did not justify it properly. The main reason why Mely identifies as female is because that is her gender identity. And the reason why her gender identity is directly opposite to her birth-assigned sex is because she has a condition called transsexualism. They could have introduced the discourse of transgenderism/transsexualism into their argumentation but they did not. Instead they skirted the issue and simply attempted to appeal to the court’s sense of humanity. That tack did not serve them well. And in the end, unlike in Cagandahan’s case where the court was properly educated on intersex conditions like CAH, the SC in Mely’s case remained ignorant about transsexualism and its attendant issues and concerns.


So what you have here is a ruling that is clearly influenced by Judeo-Christian bias. If you compare the Cagandhan and Silverio rulings, you will see that in the former the SC uses gender-appropriate pronouns while the same could not be said of the latter. (It is mentioned somewhere also that perhaps it is the patriarchy at work in the Cagandahan decision: a female wanting to be male is preferable than a male wanting to be female.) In the SC ruling against Mely, she is repeatedly referred to as a he and is described as someone whose “female anatomy is all man-made. The body that he inhabits is a male-body in all aspects other than what the physician has supplied.” In denying Mely, the SC also touched on the issue of marriage. It said that Philippine law does not allow the marriage of a “man to another man who has undergone sex-reassignment.”


So where does this leave us, transsexual Filipinos? The only way out is through legislation. This is also what the SC said, in fact, in ruling against Mely. A law needs to be passed that will recognize the gender a transsexual person identifies as. Until that time comes, going to the courts may not be the most productive thing to do. Besides, this SC ruling on Mely puts all Filipino transsexuals in a precarious legal footing. Just last year, a trans woman’s case was also brought to the CA by the OSG. After reviewing her case, the CA overturned a favorable lower court decision on her petition for a name and sex change in her birth certificate. Clearly, the local courts now cannot serve as the sole venue to clarify our legal status. Thus, the time has come for the transgender and transsexual community to come together and ask our Congress to pass a law that will recognize us, our gender as people and our rights as citizens of this country.


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What’s in a Supreme Court decision (Part 3)?

Posted by pinaytg on October 4, 2008

           One of the major issues we, transsexual people, have to contend with is our legal status. Regardless of where we are in our transition (which I define here as the optional process of changing our gender expression and anatomy through hormones and surgeries), we as a community are in agreement that legal recognition of the gender we identify as and not the one wrongly assigned to us at birth should be available to all. Without a law that recognizes transsexualism as a physical and biological condition, however, many Filipino transsexuals have had no other recourse but to go to the courts for a legal change of name and sex.


Prior to the Supreme Court decisions on Jeff Cagandahan (Republic of the Philippines vs. Jennifer Cagandahan) and Dr. Mely Silverio (Silverio vs. Republic of the Philippines), there has been a substantial number of trans women whose petitions have been granted by local judges all over the Philippines. It is safe to assume that these cases were favored by the courts on the same grounds as Dr. Silverio’s was by the Manila Regional Trial Court (RTC) that heard her case: equity, the fact that the petitioner has undergone medical procedures resulting in significant bodily changes and the fact that the petitioner identifies as a gender directly opposite to the one assigned at birth.


Unfortunately, the first two reasons proved shaky when put through legal scrutiny as demonstrated in the Silverio case. The SC argued that granting Dr. Silverio’s request would raise public policy questions that equity alone could not justify. Moreover, even if there was no law that disallowed sex-reassignment surgery (SRS), there was also no law that legally recognized it. On these two points, Dr. Silverio’s petition was denied by the SC.


So it was shocking to see the SC rule in favor of Jeff Cagandahan because while the intersex and transgender rights movement agree that intersex conditions and transsexualism greatly differ, our issues do overlap. Nowhere is this truer than in the case of Cagandahan and Silverio. Both had biological conditions that invalidated the sex assigned to them at birth. Both were seeking the same judicial relief: a change of name and sex in the birth certificate. Both cases raised quality of life issues. Both were about gender identity.


The SC could have sided with the Office of the Solicitor General (OSG) which was questioning the lower court decision that favored Cagandahan’s request, easily taken its cue from the Silverio ruling and denied Cagandahan by citing the same reasons it did in Silverio’s case:

1)      there is no law that allows change of first name on the basis of intersex

2)      there is also no law that allows change of sex in the birth certificate due to intersex and

3)      that equity alone cannot justify a change in a person’s name and sex in the birth certificate


The SC could have also raised the same public policy questions it hoisted against Dr. Silverio but it did not. Instead it ruled in Cagandahan’s favor which for me, more than anything, emphasizes the arbitrariness of the law. In the Silverio ruling, the SC argued that sex as a status is permanent and that sex assignment at birth, based on genital inspection and when not attended by error, is immutable. The Cagandahan decision contradicts this. According to the SC, in Cagandahan’s case gender classification at birth is inconclusive. But the same argument could have been used to favor Dr. Silverio because she was assigned one sex at birth and grew up identifying as another. In fact because of her condition, recognized globally as transsexualism, Dr. Silverio availed of medical procedures to align her identity with her body. She underwent hormone replacement therapy and various gender affirming surgeries which should have been enough to show the court that her genitals were not only mutable her sex assignment at birth was inconclusive. Clearly, Dr. Silverio is living proof that genitalia alone do not determine gender.


In the Silverio decision, the SC defined male and female saying female is “the sex that produces ova and bears young” while male is “the sex that has organs that produces spermatozoa for fertilizing ova”. Cagandahan has internal female reproductive organs. His genitals are ambiguous. It is not known if he produces sperm. Where does he figure then in this SC definition of the sexes? Clearly, this definition is problematic because it is simplistic and unrealistic. There will always be people like Cagandahan and Dr. Silverio who will never fit such a narrow view. Does this mean that they will forever be in legal limbo? Apparently not as shown by the SC when it ruled in favor of Cagandahan. There are actually many other intersex conditions that will challenge the definition of what is male and female in the Silverio case. Cagandahan’s condition known as congenital adrenal hyperplasia (CAH) is just one example. I wonder though if someone intersex came forward and petitioned the court to recognize him/her as not male, nor female but intersex. Would the court have allowed it?


Finally, the SC in the Silverio case reiterated its duty of merely applying and interpreting laws and not creating or amending them. Because no law allows the recognition of the gender a transsexual identifies as, then Dr. Silverio’s sex assignment in her birth certificate cannot be changed. But the same facts apply in the Cagandahan case. There exists no legislation recognizing the gender chosen by people with intersex conditions! What’s more, there is also no law that mentions or even acknowledges their and their condition’s existence. So what gives?


I will try to answer this in the fourth and hopefully final part of this post. For now, I leave you these thoughts to ponder on. Happy weekend everyone!

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What’s in a Supreme Court decision (Part 2)?

Posted by pinaytg on September 29, 2008

           As I mentioned in Part 1, last year the Philippine Supreme Court (SC) issued a ruling on a case filed by Dr. Mely Silverio, a trans woman petitioning for a legal change of first name and sex in her birth certificate. Dr. Silverio initially filed her petition in 2002 at a Manila Regional Trial Court (RTC) which heard it and subsequently granted her request. The RTC ruled in her favor on the basis of her sex-reassignment and in the interest of justice and equity. In 2003 however, the Office of the Solicitor General (OSG) asked the Court of Appeals (CA) to review the RTC’s decision arguing that no law allowed any change of entry in a person’s birth certificate by virtue of sex re-assignment surgery (SRS).


            In 2006 the CA overturned the RTC decision which led the petitioner to bring her case to the SC. The year after in 2007 the SC released its decision on the matter. It did not only concur with the CA but also ruled that the petitioner’s case lacked merit. In the decision, penned by Associate Justice Renato Corona and agreed upon by Chief Justice Reynato Puno and Associate Justices Angelina Sandoval-Gutierrez, Adolfo S. Azcuna, and Cancio Garcia, the SC denied the petition on the following grounds:

  1. there is no law that allows change of first name on the basis of SRS
  2. there is also no law that allows change of sex in the birth certificate due to SRS and
  3. a person’s name and sex in the birth certificate cannot be changed merely on the basis of equity


No law allows change of first name due to SRS

In the Philippines, a Civil Code provision expressly forbids a person from changing his/her first or last name without judicial authority. This changed in 2001 upon the passage of Republic Act 9048 (RA 9048) also known as the Clerical Error Law, which allows the city/municipal civil registrar or consul general to correct a clerical/typographical error in an entry or change the first/nick name in the civil register without need of a judicial order.


            In the ruling against Dr. Silverio, the SC pointed out the fact that she filed her petition in the wrong venue. Instead, she should have gone to her local Civil Registrar and asked for a change of first name there on any of the following grounds (Section 4, RA 9048):

a)      The petitioner finds the first/nick name to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce

b)      The new first/nick name has been habitually and continuously used by the petitioner and s/he has been known by that first/nick name in the community

c)      The change will avoid confusion.


The SC also argued that because Dr. Silverio used her SRS as her primary reason for seeking a legal name change and nowhere in RA 9048 is SRS mentioned as a valid ground for a change of name, her petition was denied. And if Dr. Silverio had gone to the Civil Registrar she should have been able to demonstrate that using her original name caused her undue prejudice. The SC said she failed to do that. In sum, the SC overturned the RTC’s ruling because Dr. Silverio sought the wrong remedy by going to the courts instead of the Civil Registrar’s office. The SC said that she filed her petition in the wrong venue. Moreover, using her legally recognized name did not cause her undue prejudice so her petition lacked merit.


No law allows change of sex due to SRS

            Although RA 9048 allows changes in entry in the civil register in view of clerical or typographical errors, it expressly forbids any change in the petitioner’s nationality, age, status or sex. According to the SC, no error was entered in Dr.Silverio’s birth certificate therefore correcting her sex even after SRS is not necessary. Her SRS is not a valid reason for granting her request to have her sex legally changed as long as what is reflected in her birth certificate is the sex assigned to her at birth. The SC ruled that that assignment, if not attended by error, is immutable even post-SRS.


Further, the SC provides a definition of sex and what male and female is. According to the SC with no contrary legislative intent these terms are to be given their common ordinary meaning. Thus, sex is “the sum of peculiarities of structure and function that distinguish a male from a female”. Female, meanwhile, is “the sex that produces ova or bears young” while male is “the sex that has organs to produce spermatozoa for fertilizing ova”. These definitions, according to the SC, clearly exclude people who’ve undergone SRS.  And since no law recognizes their SRS, a request to change sex in the birth certificate has no legal basis.


Name and sex in the birth certificate cannot be changed on the basis of equity

            The SC also opined that the RTC’s favorable ruling toward Dr. Silverio on the ground that it would cause no one harm, injury or prejudice was wrong. In fact, the SC claimed that granting Dr. Silverio’s request would impact on Philippine marriage laws (as it would allow the marriage of a man to another man who has undergone SRS), provisions made for women in the Labor Code and the Revised Penal Code and presumption of survivorship in case of calamities (i.e., if two people die in a calamity, and both are under 15 or over 60, the male is presumed to have survive; if they’re of the same sex, the older is presumed to have survived). The SC argued that Dr. Silverio’s petition raised questions regarding matters of public policy which could only be addressed by legislation and not a judicial ruling. The SC added that it was not its responsibility to create or change law but to apply and interpret it. Although the SC recognized the hard life facing people like Dr. Silverio whose “preferences and orientation do not fit neatly into the socially recognized parameters of social convention” it still concluded that Dr. Silverio’s petition could only be remedied through legislation, that is if a law were passed recognizing the new gender of people who’ve undergone SRS.


            In the third installment of this post, I will compare these two SC rulings and argue for legislation as the best option for transsexuals in seeking legal change of first name and sex in their documents.


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What’s in a Supreme Court decision (Part I)?

Posted by pinaytg on September 18, 2008

           Last night no sooner had I caught my breath after a run at the University of the Philippines (UP) than I got a text message from Malu Marin, a long time advocate of lesbian, gay, bisexual and transgender (LGBT) rights in the country and now the Executive Director of Action for Health Initiatives (ACHIEVE), an HIV/AIDS NGO for Filipino migrant workers. Apparently word about a Supreme Court (SC) decision allowing someone intersex to have a legal name and gender change in his documents made it to the evening news and Malu was all too happy to break it to me. I wasn’t home last night but excitedly sent out text messages about the SC decision to some of my trans friends. Everyone was hopeful it would open the doors to trans recognition in law in the future.


            This morning when I got to work I accessed the SC decision online. Entitled The Republic of the Philippines vs. Jennifer Cagandahan, the September 12 ruling is nothing short of astounding. I had the same reaction as last night when I first heard about it: “OH MY GOD!” You see, Jennifer Cagandahan, the respondent has congenital adrenal hyperplasia (CAH), an intersex condition where a baby, born with XX (female) chromosomes, masculinizes during puberty. Due to CAH, the respondent has ambiguous genitalia (in this case, a swollen clitoris with a urethral opening at the base which the court describes as appearing more male than female) and internal female reproductive organs. The respondent has a uterus, ovaries, and fallopian tubes. But the respondent also developed male secondary sex characteristics during puberty such as facial hair and deepened voice and did not menstruate. Five years ago, the respondent petitioned a Laguna Regional Trial Court (RTC) seeking a legal change of name and sex. The petition was granted by the RTC but was challenged on a technicality involving the new Civil Registrar Law (Republic Act 9048) by the Office of the Solicitor General (OSG), which brought it to the SC. Six days ago, the SC ruled in favor of the respondent not only saying that the petition did not violate RA 9048 but also granting the request to change in the respondent’s birth certificate the name Jennifer to Jeff and the gender female to male.


            In the ruling, penned by Associate Justice Leonardo Quisumbing and agreed to by Associate Justices Conchita Carpio Morales, Dante O. Tinga, Presbiterio J. Velasco, Jr., Arturo Brion and signed by Chief Justice Reynato Puno, the SC says:


“Ultimately, we are 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.  Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male.  Sexual development in cases of intersex persons makes the gender classification at birth inconclusive.  It is at maturity that the gender of such persons, like respondent, is fixed.”


            Furthermore, the court argued that Jeff was competent enough to decide his gender for himself and with Nature on his side, Jeff had already been revealed to be male. Without a law that dealt with intersex conditions, the SC could not tell Jeff what to do. They could not ask him to choose genders nor could they ask him to correct his condition through medical means. According to the ruling “Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what course of action to take along the path of his sexual development and maturation.”


            OH MY GOD! This is almost too good to be true. It is breathtakingly unbelievable. I can hardly believe it. I am so shocked and yet so impressed as well by this. It is such a far cry from the 2007 SC decision on a case involving a trans woman who filed the same petition but was denied by the same court (composed of a different set of people, mind you, save for the Chief Justice). While this one is compassionate, logical, reasonable and scientific that one reeked of ignorance, ill logic, homophobia and transphobia. I will write more about that now infamous ruling in the next post.


For now, I just want to congratulate Jeff and his legal team on their victory which the court interprets as their giving respect to “(1) the diversity of nature; and (2) how an individual deals with what nature has handed out.” Alas, this is the exact same thing all gender advocates have been fighting for all along: for everyone to recognize diversity in gender and an individual’s agency to decide a matter as personal as gender identity! I hope that this ruling spells a brighter legal future for us transsexual Filipinos. Right now I need to catch my breath again. J

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