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 depending on 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 and/or transphobia. 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 as well that perhaps it is the patriarchy at work in the Cagandahan decision: a female wanting to be male is preferable and more laudable 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 in fact 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 be the wrong 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.