Thursday, September 18, 2008

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

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. :)


Monica Roberts said...

Pinay TG,
Too bad they didn't have the same enlightened attitude when Dr. Mely Silverio's name change case hit the Philippine Supreme Court a few months ago.

Here's hoping that this ruling is the first step for my Filipina sisters to get identity documents that match who they are now.

PinayTG said...

Indeed. I will talk more about Mely's case in Part 2 of this post when I get back from a weekend at the beach Monica. Just a quick update though, Jeff Cagandahan has been giving interviews on TV saying his issues are different from trans people's thereby distancing himself from the trans community.

We will try to reach him before any more damaging statements are made. In spite of this turn though, I am still hopeful this ruling can be cited in future trans cases brought to the courts.

By the way, it is good to see you're doing well after Ike. That was another scary storm. Keep my well always and best regards. :))