Being Right

Congress, whose job is to make laws, should familiarize itself with the law of unintended consequences: an act causing outcomes unforeseeable or unpredicted. This is natural, particularly in a world populated by human beings. But unfortunately, President Rodrigo Duterte may have inadvertently signed a law of profound negative consequence for the country. That law is Republic Act No. 11313, An Act Defining Gender-Based Sexual Harassment in Streets, Public Spaces, Online, Workplaces, and Educational or Training Institutions, Providing Protective Measures and Prescribing Penalties Therefor, or the “Safe Spaces Act.”

The words “safe space” alone should have sent red flags. But the law doesn’t provide for a safe space but rather a privileged one. And Congress just made the Republic take a fundamentally radical shift on social issues, particularly gender.

Section 3. (d) of the law defines “gender” as “a set of socially ascribed characteristics, norms, roles, attitudes, values and expectations identifying the social behavior of men and women, and the relations between them.”

This departs from longstanding Philippine historical, legislative, and even judicial understanding of gender being intrinsically connected to one’s sex.

Even the Supreme Court (in Silverio, 2007) declared that “the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable.”

In effect, Congress — with the minimum of notice to everyone — made the Philippines take the hugely confused liberal progressive step of detaching gender from the reality of one’s biological sex, and identifying the former as a mere “social construct.”

Sec. 3. (f) further compounds this: “gender identity… refers to the personal sense of identity as characterized, among others, by manner of clothing, inclinations, and behavior in relation to masculine or feminine conventions. A person may have a male or female identity with physiological characteristics of the opposite sex, in which case this person is considered transgender.”

This effectively renders the “male” and “female” categorization of no practical meaning. The law also gives official recognition to “transgenders,” including privileged status. This coming precisely at a time of worldwide debate as to what exactly transgenderism is and how is it to be responded to.

Essentially, what Congress has done is to elevate and recognize something utterly subjective, contrary to centuries of Philippine social, cultural, religious, and official norms, so subjective it’s creatable purely in the mind of the subject individual, and yet criminal liability is imposed on the basis of that subjectivity.

And the criminal acts listed are horrendously vague: an “act” of “unwelcome sexual advances,” cursing, catcalling, wolf-whistling, leering, intrusive gazing, taunting, unwanted invitations; misogynistic, transphobic, homophobic, and sexist slurs; persistent unwanted comments on one’s appearance; relentless requests for personal details such as name, contact, destination, or social media; use of words, gestures, or actions that ridicule one’s sex, gender, or sexual orientation, identity and/or expression including sexist, homophobic, transphobic statements and slurs; persistent telling of sexual jokes, use of sexual names, comments, and demands; or any statement that has made an invasion on a person’s personal space or threatens the person’s sense of personal safety.

Catcalling was the only act defined by the law and it goes like this: “unwanted remarks directed towards a person, commonly done in the form of wolf-whistling and misogynistic, transphobic, homophobic, and sexist slurs.”

But the key words here are “unwanted” and “unwelcome.” How is “unwanted” and “unwelcome” signified? Is there a de minimis level? Or possible chance of rectification by the transgressor? A deadline for a party to change one’s mind as to what was welcome/unwelcome, knowing how fickle people can be?

As mentioned, RA 11313 provides a privilege and the reason that is said is because we already have laws on cybercrime, libel, slander, coercion, acts of lasciviousness, unjust vexation, and sexual harassment — providing protection to all citizens (and even non-citizens).

But at a time when we’re still finding the true extent of our legal system’s effectivity, as well as certain laws’ propriety, particularly on sexual harassment, Congress comes up with another law carving out a special set of offenses to specifically protect an undefinable mutable sector.

Interestingly, RA 11313 does not only hold employers, teachers, or any person in authority accountable. It threatens everyone that does not subscribe to the idea of gender fluidity and transgenderism.

It makes everyone: colleagues, male or female, the elderly or minors, government officials, teachers and school administrators, even complete strangers, liable.

No exemption is made for religious beliefs, academic freedom, and even the military or police. In fact, higher responsibility is placed on schools and the police.

And a mere “act” “remark against any person regardless of motive” or “conduct that is unwelcome and pervasive and creates an intimidating” environment” could land anyone in jail.

This is the problem when legislators go woke.

And again: the road to hell is paved with good intentions.


Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula