Sunday, September 28, 2008

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

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:
a) there is no law that allows change of first name on the basis of SRS
b) there is also no law that allows change of sex in the birth certificate due to SRS and
c) 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 SRSIn 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 equityThe 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.


Monica Roberts said...

Hey Sis!
Thanks for the additional information concerning Dr. Silverio's case.

If there any discussion in the Philippines TG community about bring up another case to reverse Silverio that points to other favorable international SC cases that tackle name change issues such as South Korea for example?

PinayTG said...
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