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!