There is no such thing as SOGI rights, just human rights

Trade Tripper
Jemy Gatdula

Posted on February 13, 2015

These are excerpts from my testimony before the House Committee on Women and Gender Equality on the proposed draft consolidated bill Prohibiting Discrimination on the Basis of Sexual Orientation or Gender Identity (SOGI), on Feb. 10. The full text of my statement can be found at my blog.

THERE IS NO binding international law obligation relating to sexual orientation or gender identity, or that which is designated as LGBT (lesbian, gay, bisexual, transgender) “rights.” Certainly no written international instrument that expressly mentions sexual orientation or gender identity “rights” constituting a binding international obligation has been entered into by States at the international level. Resolutions, whether of the General Assembly or the Human Rights Council, it must be emphasized, do not form binding obligations on States (and this includes the so-called Yogyakarta Principles). This is a fact recognized by the Supreme Court.

But even had there been, it is in the nature of international human rights law that States will have wide latitude as to its implementation. Many too readily presume the universality of international human rights, ignoring the fact that its relatively recent existence poses problems in implementation at the State level. Specifically for sexual orientation and gender identity, such (as pointed out by one commentator) “are vague and ill-defined, and have come to encompass a whole range of morally problematic ideas, including same-sex marriage, adoption by gay and lesbian couples, and presenting the homosexual lifestyle positively to schoolchildren.”

Furthermore, it would be apt to point out that Facebook alone identifies at least 51 genders. The opinions of gender experts, however, vary: there could be three or even as many genders as there are individuals. This is significant. Because in order for this draft law to be effective it must be able to: (a) identify properly those covered by the protections it offers; and (b) capable of being implemented by the police or judicial system in terms of evidence.

True, Section 3.b. and 3.c. of the draft law does define “gender identity” and “sexual orientation,” but it does so in an unfortunately ambiguous and superficial way. Much of what can constitute identity or orientation cannot be seen through clothing or even at skin level. And yet, we are to punish individuals (employers, faculty administrators, business owners, ordinary service employees, etc.) for failing to identify the very particular kind of people covered by a special law.

There is also the difficulty of proving that one has indeed been discriminated due to gender identity or sexual orientation (and not for any other reason), and proving that such a status of gender identity or sexual orientation did exist at the time of the supposed discrimination.

In other words, there is the failure to identify the evidence that must be presented to our courts that at the time of the supposed discrimination taking place, the person making the claim is indeed covered under the purview of the provisions of the draft law, and that the person or persons committing the discrimination did so because of that complainant’s sexual orientation or gender identity and not for another (justifiable) reason. This difficulty is heightened because of the possibility that sexual orientation can unilaterally change through time.

The eccentric thing about the draft law is that it purports to say that there is no difference between the rest of the Philippine population and the LGBT, and then proceeds to provide rights and protections to the LGBT that the rest of the community does not enjoy (which is the total absence of requiring overt qualifications and escape from legal discrimination). Not only is this against the essence of democratic rule, it also illogically violates the doctrine of equal treatment, as well as the idea of human rights being universal. Rather than equality of rights, we have a balkanization of rights for a small group of people rather than for all people.

Finally, the draft law sloppishly fails to consider the obvious effect it will have on other laws. Judging by the usual listing that LGBT advocates have regarding the “rights” they are pushing for, such will involve laws relating to employment, military service, adoption, marriage, student activities (such as attending school dances with same-sex dates or dressing in gender nonconforming ways), parenting, schools, and government identity documents.

In which event, the implications and possible conflicts such will have vis-à-vis the constitutional protections relating to religion, free expression, academic freedom, and contract will need to be examined and addressed, along with its relationship to family (including marriage, adoption, succession), labor, education, tax and social services, military, and health laws, among others. The affected stakeholders need to have a say and be consulted because, as pointed earlier, the possible unintended effect is discrimination in order to ostensibly rid of discrimination, a balkanization of rights for some rather than all.

Jemy Gatdula specializes in international economic law (WTO and ASEAN), and teaches international law and legal philosophy at the UA&P School of Law and Governance.



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