Being Right


(Second of two parts)

The decision of the Supreme Court to “acknowledge and honor” the LGBTQIA++ poses doubt as to the consistency of its judgment: in Ang Ladlad vs. COMELEC, it declared: “At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.” Having said that, at the United Nations level, almost 100 State members have either rejected or otherwise refrained from expressing support for the so-called LGBT “rights.”

Hence, this utterly relevant (and very true) insight by our Supreme Court (again from Ang Ladlad): “not everything that society — or a certain segment of society — wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. xxx [To do so will have] the effect of diluting real human rights.”

Even more importantly, the Supreme Court is duty bound (by Constitutional and legislative fiat) to protect the rights of women. However, the explicit celebration of the “T” (“transgender”) in LGBTQIA++ raises the question of whether the Supreme Court believes that a biological male should now be considered a “woman” and thus entitled to “women’s rights” simply because (as merely mentioned but not fleshed out in the Safe Spaces Act) such a biological male adopted a female identity.

But to do so would contradict the (correct) ruling by the Supreme Court in Silverio vs. Republic, in that while surgery may alter a person’s “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.” The Court went on to say (again correctly) that to recognize the sex change “will have serious and wide-ranging legal and public policy consequences.” First is its effect on marriage, which is a “special contract of permanent union between a man and a woman.” Furthermore, “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 … These laws underscore the public policy in relation to women which could be substantially affected” if sex changes were recognized.

As the Supreme Court wisely points out (in a great example of rejecting judicial legislation), “the sex of a person is determined at birth” and is “immutable.” Thus, “sex is defined as ‘the sum of peculiarities of structure and function that distinguish a male from a female’ or ‘the distinction between male and female.’ Female is ‘the sex that produces ova or bears young’ and male is ‘the sex that has organs to produce spermatozoa for fertilizing ova’.”

As an added note, the foregoing was implicitly bolstered later by the Supreme Court in Republic vs. Cagandahan, a sui generis case involving a hermaphrodite where the Supreme Court carefully noted that the person in question “has not taken unnatural steps to arrest or interfere with what he was born with,” letting “nature take its course” rather than “force his body into a categorical mold.”

The Supreme Court, by having a “tarpaulin, freedom wall, and Pride shirts,” with “cash advances” made available to “defray all expenses,” also raises the question of whether these fall under a legally enacted budget item. Because all the foregoing products (unless private donations or voluntary private spending are involved) require the disbursement of tax money, which can only be done if such was put under a specifically identified budget item by Congress. Thus, Article VI.25.2 provides: “No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates.” The foregoing Constitutional provision, in turn, is enforced by Congressional enactments, notably Section 220 of the Revised Penal Code.

In the end, it all goes back to the Constitution. Whatever your views may be on homosexuality or related sexual issues, the fact still remains that the Constitution has a clear declaration that “no person shall be deprived of life, liberty, or property without due process of law nor shall any person be denied the equal protection of the laws.” Are the LGBTQIA++ deserving of respect and dignity? Utterly so. They are definitely and assuredly within the ambit of Constitutional protection because every human being is inherently entitled to it. But what the Supreme Court did by celebrating Pride Month as it officially declared, is that it proffered treatment to a specific (albeit ambiguously defined) sector of society not available to any other.

This is all the more so considering that no specific Constitutional provision or law specifically authorizes, recognizes, or gives preference to the LGBTQIA++. It leads to a lot of unnecessary difficulties, particularly on bias and appearance of bias, especially if the Supreme Court is confronted with a legal case involving the LGBTQIA++ versus another party (e.g., a Catholic organization or independent news media), which the new Code of Professional Responsibility and Accountability proscribes and as has been long taught by the Supreme Court itself.

It also raises a question on Constitutional rights: the LGBTQIA++, ostensibly and as popularly seen, promotes a homosexual lifestyle which some religions disagree with. How are the faithful who are members of the judiciary supposed to respond to this? There is the question on free speech, particularly that of the “chilling effect” it may have on court personnel and the rest of the legal profession. If the Supreme Court itself is acknowledging and honoring the LGBTQIA++, even “encouraging” all personnel to wear Pride shirts, then how does that affect the ability of court personnel and all other lawyers to disagree with, protest, or criticize the LGBTQIA++? No matter how activities and wearing of Pride shirts are said be merely “encouraged” or “voluntary,” in our culture the moment one’s superior suggests something that is tantamount to an order. Then consider that the Supreme Court is the final authority as to who enters the legal profession, the disciplining of lawyers, and has administrative supervision (including hiring, promotion, and continued employment) of judges and court personnel. The complex difficulties brought about by the Supreme Court’s decision to celebrate Pride month is palpable, obvious, and foreseeable.

Which brings us to this reiterated point: the freedoms of religion and speech are expressly and specifically declared in the Constitution, enjoyable by all. To give the LGBTQIA++ treatment not available to others is not upholding equality, it is the imposition of a privilege. The Supreme Court — on terms of prudence alone — would have done well to refrain from making itself vulnerable to appearances of preference, especially when no Constitutional or legislative provision requires it.

All the foregoing queries are made with utter respect to and reverence for the Supreme Court.

Yet, being a Republic under our Constitutional system, such questions need to be raised to clarify every citizen’s understanding of rights, due process, and the rule of law.

It also must be said: the interpreting and upholding of the Constitution is not the exclusive domain of the Supreme Court but is also the function, authority, and responsibility of the Congress and the President (which they can definitely exercise by congressional enactment or resolution and presidential action or pulpit, respectively). Ultimately, it’s the People, the true holder of sovereignty and the Constitution’s author, that should be heard, deferred to, and have final say.


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