Saturday, November 10, 2007

Can a man who had a sex change operation have his birth certificate entry for gender changed from “male” to female”?

The Supreme Court ruled negatively on this question in the case of “Rommel Jacinto Dantes Silverio versus Republic of the Philippines”, G.R. No. 174689, promulgated last October 22, 2007.

Justice Renato C. Corona, speaking for the Court, asked rhetorically in his ponencia, “When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?”

(Note: Please read From “Jennifer ” to “Jeff ” and from female to male: correction of entries in birth certificate due to intersex condition)

The facts of the case

Rommel Jacinto Dantes Silverio (Silverio for brevity) alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as “Rommel Jacinto Dantes Silverio” in his certificate of live birth (birth certificate). His sex was registered as “male.”

Silverio further alleged that he is a male transsexual, that is, “anatomically male but feels, thinks and acts as a female” and that he had always identified himself with girls since childhood. Feeling trapped in a man’s body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a “woman” culminated on January 27, 2001 when he underwent sex reassignment surgery in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (Silverio) had in fact undergone the procedure. During trial, Silverio testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.

The favorable decision of the Manila Regional Trial Court

On June 4, 2003, the Manila RTC through presiding Judge Felixberto T. Olalia rendered a decision in favor of Silverio, that is, changing his first name from "Rommel" to "Mely" and his gender from "male" to "female". The trial court stated,

Firstly, the court is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioner’s misfortune to be trapped in a man’s body is not his own doing and should not be in any way taken against him.

Likewise, the court believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her fiancé and the realization of their dreams.
On August 18, 2003, the Republic of the Philippines, through the Office of the Solicitor General, filed a petition for certiorari in the Court of Appeals. It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.

Manila RTC decision overturned by the Court of Appeals

On February 23, 2006, the Court of Appeals rendered a decision in favor of the Republic. It ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Silverio moved for reconsideration but it was denied. He subsequently filed a petition with the Supreme Court questioning the decision of the Court of Appeals.

Reasons why the Supreme Court denied petition for change from “male” to “female”

The Supreme Court denied Silverio’s petition on the following grounds: [1] A person’s first name cannot be changed on the ground of sex reassignment; [2] No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment; and [3] Neither may entries in the birth certificate as to first name or sex be changed on the ground of equity.

The pertinent portions of the Supreme Court decision are posted below:

[1] The petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that court’s primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far as the change of his first name was concerned.

[2] While petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. There is no special law in the country governing sex reassignment and its effect. This is fatal to petitioner’s cause.

[3] In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based.

[4] The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman. One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual).

Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted.

(Note: Please read From “Jennifer ” to “Jeff ” and from female to male: correction of entries in birth certificate due to intersex condition)

P.S. If you know someone struggling with homosexuality, please ask him to surf to Living Hope Ministries. Here in the Philippines, he can communicate with Bagong Pag-asa, an ex-gay change ministry founded by Frank Worthen. Its office is located at Burgundy Corporate Tower in Buendia, Makati. I don’t know if Bagong Pag-asa’s cell phone numbers are still current but try 0927-578-8373 or 0921-295-2135.

I have worked with a pastor in a depressed community here in Metro Manila and he told me of the very serious problem of the sexual abuse of grade school children by their own fathers. Two of my former students in high school became homosexuals when they were sexually abused at a very young age. I wanted to learn how to help people in this kind of situation and so I invited Frank Worthen three years ago to give a seminar on the causes of homosexuality for the faculty and students of Asia Baptist Bible College, Sta. Mesa, Manila. His books on this topic are available at PCBS, OMF Lit and National Bookstore.

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