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Thursday, October 23, 2014

MARIE YUVIENCO | Is Laude a 'he' or a 'she'? Jurisprudence and the SC may clarify - or maybe not


By: Marie Yuvienco
InterAksyon.com
The online news portal of TV5
I may have an explanation - I can't be sure so don't quote me on this - why ex-Chief Justice Renato Corona got only silver medal honors for activity awards when he was in high school.  It may be because the school found out that the future Chief Justice believed in creationism.
That would have been fine, except that the activity involved was membership in the science club. Today, belonging to the science club will automatically brand one a geek, but the sixties, when Corona was in high school, was the decade when the United States Supreme Court decided Epperson v. Arkansas, wherein it held that the teaching of the theory of evolution in public schools, though it may contradict religious beliefs about the origins of the human race, cannot be prohibited and made criminal by state legislatures because it would violate the Establishment of Religion clause. In the science club, clinging to creationism would have labeled the clinger a dogmatic, and even the Jesuits would have been hard-pressed to award a gold medal to that one.
Wisecracking aside, apparently, old beliefs die hard. Jennifer Laude's death impelled me to brush up on LGBT jurisprudence, principally because of the hue and cry over Jennifer's identity.
Jennifer, though born Jeffrey, self-identified as a female although she had not undergone the surgical procedures that would have anatomically made her one. Media, however, were having a hard time figuring out whether Jennifer should be treated as a he or a she, settling eventually on using her birth name Jeffrey followed by Jennifer in quotation marks.
Into the confusion, jurisprudence steps in. One is Republic of the Philippines v. Cagandahan, a 2008 case involving a private respondent whose birth certificate listed her as female but who, growing into adulthood, started exhibiting male characteristics due to a biological condition. "He" then filed a petition to change the entry in his birth certificate from "female" to "male," and his name from "Jennifer" to "Jeff." 
The decision, rendered by its Second Division, is noteworthy because it respected the private respondent's self-identification, referring to him as "he."  The ponencia of Justice Leonardo A. Quisumbing observed that Jeff Cagandahan had "not taken unnatural steps to arrest or interfere with what he was born with," that "nature [had] instead taken its due course in respondent's development to reveal more fully his male characteristics." Accordingly, the Court allowed the amendment of Jeff's birth certificate to reflect the changes in his life, adding rather pointedly:
In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out.  In other words, we respect respondent’s congenital condition and his mature decision to be a male.  Life is already difficult for the ordinary person.  We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case.
A year before, however, the First Division of the Court had reached a different conclusion in Silverio v. Republic of the Philippines, which involved a petitioner, born a male and reflected as such in his birth certificate, who underwent sexual re-assignment surgery and wanted the entries in her birth certificate amended to reflect the change in her gender and change her name from "Rommel" to "Mely." Unlike Jeff in Cagandahan, though, Mely had no biological condition. The Court ruled, however, that sexual re-assignment surgery is not a ground that will justify ordering changes to entries in one's birth certificate as to name and gender.
This is where Renato Corona makes his entrance. His ponencia in Silverio opens with a quotation from the Book of Genesis, to wit: "When God created man, He made him in the likeness of God; He created them male and female." 
This Biblical excerpt is then followed by a short recounting of the Malakas at Maganda origin story from Philippine mythology. At once, the foundation is laid that the ratio decidendi is not only Catholic, it is Filipino. These quotations reminded me immediately of Ang Ladlad v. Comelec, the 2010 case where the Court castigated the Comelec for citing verses from the Bible and the Koran to deny the application of Ang Ladlad, an LGBT party, for accreditation as a party-list organization. (Incidentally, Corona vigorously dissented in Ang Ladlad, disputing the majority's finding that LGBTs constitute a marginalized sector for purposes of election laws.)
We can agree to disagree about religious convictions intruding into judicial opinions, but clearly, in Silverio, we can already discern where Corona, and by implication, the Court itself, stands on transgenders, and marriage in particular, which the opinion describes as "one of the most sacred" - not "respected" or "honored"; even "special" would have sufficed, but "sacred" is the word used with all the heavenly sanction the word implies - "social institutions," which can only involve a biological male and a biological female. And then Corona worries about what a contrary ruling would have on Articles 130 to 138 of the Labor Code, which I found to be rather silly. For example, post-Silverio, Congress enacted Republic Act No. 10151 repealing article 130 of the Labor Code re nightwork prohibition for women. The other provisions relate to pregnancy, maternity leave benefits, facilities for women such as seats and nurseries - well, just read the provisions and determine for yourself if you share the ponente's angsts. 
The preceding discussion seems to have sidelined Jennifer Laude, which is not the intention here. My point is that she had self-determined as a female despite what her birth certificate says, and where the law and jurisprudence are concerned, a male she will always be. 
So if her right of self-determination, expressed later in life, cannot be reflected in her birth certificate, although the issue has never arisen and in any case is moot now, then perhaps that right can be reflected in her certificate of death. The Civil Register Law requires that death certificates must state both the name and sex of the decedent - similar to birth certificates.  I see no danger in allowing Jennifer's name and chosen gender to be reflected in her death certificate as a gesture of last respect to her self-determination.
Granted, there is no specific law which apparently would allow it, but perhaps those geniuses in Congress who have been in a snit over Jennifer’s death and the Visiting Forces Agreement could be moved to enact such a law, one that will respect transgenders' choices after their deaths.

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