Samson, Charisma: Legal Issues concerning Sex Reassignment Surgery

Introduction

Wikipedia has defined sex reassignment surgery (initialized as SRS; also known as genital reconstruction surgery, sex affirmation surgery, or sex-change operation) as a term for the surgical procedures by which a person’s physical appearance and function of their existing sexual characteristics are altered to resemble that of the other sex. Other term for SRS that the site has stated are gender reassignment surgery, sex reconstruction surgery, genital reconstruction surgery, gender confirmation surgery, and more clinical terms, such as feminizing genitoplasty or penectomy, orcidectomy and vaginoplasty are used medically for trans women, with masculinizing genitoplasty often similarly used for trans men [1].

This kind of medical technology has gradually gained acceptance in the society most especially in the European countries. The first known male-to-female sex reassignment surgery was done in Germany on 1930 to a certain Lili Elbe. Lili Elbe went through five surgeries and died three months after the fifth operation [2]. This was followed by other successful surgeries, mostly male to female, in various part of the world. In the US, sex reassignment surgery first took place in 1966 at John Hopkins University and was performed by Dr. Elmer Belt [3]. In other countries also, they have already introduced guidelines governing Sex Reassignment Surgery which is only an indication of their willingness to accept transexualism and transgenders in their society. One example is Thailand. Most number of sex reassignment procedures had been done in Thailand, which must be the reason why it has already drafted laws governing the said procedure. In Iran, Filmmaker Tanaz Eshaghian discovered that the Iranian government’s “solution” for homosexuality is to endorse, and fully pay for, sex reassignment surgery [4]. The leader of Iran’s Islamic Revolution, Ayatollah Ruholla Khomeini, issued a fatwa declaring sex reassignment surgery permissible for “diagnosed transsexuals” [5]. In the United States, it is now a valid legal procedure for someone to have her name and sex in his birth record be changed on the basis of undergoing sex reassignment procedure.

In the Philippines, being a Christian country, there is difficulty in gaining popular acceptance in the introduction of this kind of technology. As of the moment, this kind of medical procedure has not yet been performed in this country. However, taking into account the increasing number of homosexuals and the influence of other countries to the Filipinos, sex reassignment surgery, is slowly penetrating into the Filipino society. Taking the moral issues aside, other matters that should be look into, in case sex reassignment surgery has finally taken its place in this country, are its legal implications and how our laws, specifically those governing the legal status and rights of a person will cope up to this kind of technology.

What are the legal reasons why a person who had undergone a sex reassignment surgery can’t just change his name and sex classification? What rights of a person that can be possibly affected? Will it be possible and fair to just have “transgender” sex classification, in addition to “male” and “female” classification in order to properly classify members of third sex who has undergone sex reassignment surgery? Is this the answer to eradicate the discrimination transgenders are experiencing right now? Will this violate fundamental laws and principles of the land? Can the Filipinos accept this kind of innovations? These are the issues that will be tackled in this paper.

Can a person validly change his first name and sex classification on the basis of having undergone a sex reassignment surgery under our jurisdiction? If so, what are the legal consequence attached to it?

The case of Silverio vs. Republic

The above given questions as to the legal matters concerning the issue of Sex Reassignment Surgery such as the validity of change of name and sex on the ground of undergoing the said procedure and the rights of a person that could be affected by the said change were properly addressed by the Supreme Court in its decision [6] rendered on 22 October 2007 on the petition filed by Rommel Jacinto Dantes Silverio to change his first name and sex classification in his birth certificate.
The petition was filed before the Regional Trial Court of Manila, Branch 8. In the said petition, petitioner Rommel Jacinto Dantes Silverio sought that his first name be change to “Mely” and his sex from male to “female” on the ground that he had successfully undergone sex reassignment surgery and had been living as a woman since then. The lower court granted the petition stating that the same would be more in consonance with the principles of justice and equity. It was further provided that “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.”

The said decision by the lower court was reversed by the Court of Appeals. Upon reaching the Supreme Court, the decision of the CA denying the petition became final and executory.

On the cited case of Silverio vs. Republic, the Supreme Court ruled that a person cannot change his first name on the ground of sex reassignment. According to the court, before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. In this case, petitioner failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. The court also added that the use of petitioner’s true and official name does not prejudice him at all.

As to the change of his sex, the court likewise ruled in the negative. It reasoned that Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court. The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code. However, the court concluded that the said articles do not cover the correction on the ground of sex reassignment. Sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly. Moreover under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth. Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable. Further, since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term “sex” as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category “female.” For these reasons, 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. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

The issues on the rights of a person that can be affected in case petitioner has successfully changed his name are likewise discussed in the said case. It is worthy to note that the lower court granted the petition on the ground of equity believing that the change sought by the petitioner would cause no harm, injury or prejudice to anyone. However, Supreme Court disagreed on the said ruling arguing that allowing the petition will have serious and wide-ranging legal and public policy consequences. The court cited as the first example the eventual marriage of the petitioner to his male fiancé. Under our law, marriage is a special contract of permanent union between a man and woman and as such, one of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. The court said that to grant the change sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations because it will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual).

Second, the court likewise pointed out various laws that will be greatly and substantially affected by the grant of the petition, which consist mainly of those granting special rights to women. Examples given are 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”, the court said. In conclusion, the court said that, in our jurisdiction, there is no law conferring to a person who has undergone a sex reassignment surgery the privilege to change his name and sex on such ground.

The case of Republic vs. Cagandahan

People who are familiar and sympathetic with the case of Silverio has mistakenly compared it with another case which is seemingly related to Silverio vs. Republic. The said case was entitled Republic vs. Cagandahan [7] and was decided on 12 September 2008. In this case, petitioner Jennifer B. Cagandahan seeks to change her first name to “Jeff” and gender from “female” to “male”. Her basis was that, while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff. The petition was granted by the lower court in its decision rendered on 12 January 2005 reasoning that the petitioner has convinced the court that he is entitled to the reliefs prayed for. This decision by the trial court was upheld by the Supreme Court. According to SC “in deciding this case, they considered the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. “It has been suggested that there is some middle ground between the sexes, a `no-man’s land’ for those individuals who are neither truly `male’ nor truly `female’.” The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but the Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification. The Court is of the view that that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed”.

Be it noted that in the instant case, the Court emphasized the fact that the respondent did not take any unnatural procedure or treatment in order to correct or to, as the court has worded, interfere with what he was born with. He let the nature take its own course, in other words. In this case, the Court recognized and acknowledged the choice of the respondent to live in his preferred gender which is as a male. The Court further said “to him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation”.

Evaluation of Silverio vs. Republic and Republic vs. Cagandahan

Although both case deals with the issue of changing of first name and gender, I think their big difference lies with the basis of their petitions. In Silverio vs. Republic, the petitioner sought to change his name and gender on the ground that he has undergone a sex reassignment surgery. Silverio wants to make his name and gender be compatible with his present identity after undergoing the said procedure. Silverio is originally a male. Although in emotion and mind petitioner is like a female, there is nothing wrong or unusual with his anatomical structure. Without the human intervention, based on the manner the person is to be classified, Silverio is still considered, without any doubt, as a male.

On the other hand Cagandahan wants to change his name and gender on the ground that he has the so called Congenital Adrenal Hyperplasia (CAH) wherein a person thus afflicted possess both female and male characteristics. When he was born maybe it was his female organ that is more apparent and that is what the midwife or the nurse saw and as such he was classified as female. While he is growing up however, his body started to produce more androgen, a male hormone, and thus giving him characteristics and appearance of that of a male.

Obviously, the matter that is being settled in both cases is that as a general rule, under our jurisdiction, no person can change his first name and gender upon his own “desire”. No one is allowed to change his identity from someone to another one or from female to male because he opted so or he feels so. There must be a valid basis before such change be allowed and such basis is cannot be manipulated by any procedure in order to be considered as valid by the court. However, this rule accepts an exception which is if the person seeking for the change of name and gender is an intersex individual like the case of Cagandahan.

I think Cagandahan’s case was considered as an exception because in his situation, it was the nature that took its own course in his development. It was something that is not his fault and beyond his control. It was very different from the case of Silverio. Silverio was not an intersex individual. He is a transgender/transexual. His body structure was clearly that of a male when he was born. His anatomical structure does not possess any female characteristic. He achieved his female appearance only by way of a medical procedure. And such unnatural procedure of transforming one’s self from one gender to another is not honored under this jurisdiction. Hence, Silverio’s case should not be compared with Cagandahan. They are distinct with one another.

Response with the decision on Silverio case

The question can a person validly change his first name and gender on the ground of sex reassignment was answered by the court in the negative. I agree with this decision by the Court.

The identity of a person is impressed with public purpose, hence must be regulated by the State. That is the reason why our law provides that such change can only be done with judicial authority – meaning must be approved by the court. If sex reassignment surgery be considered as a ground for change of name and gender, then it will be very easy for some to change his name and gender just by undergoing the procedure. The purpose of regulating the change of such will no longer be served. It can be used as tool for others for them not to be identified or to change identity in order to escape obligations.

Moreover, it will make possible for a man to acquire rights granted only to a woman. One of the reasons why our laws provide special rights and privileges to a woman because it consider the fact that women are having more physical ordeals to deal with than men. They became pregnant, physically men are stronger than them, they are having monthly menstrual cycle which sometimes causes them pain and other sickness. Admittedly, the nature has granted more physical strength to men than women. The way our God or to others, the nature has molded man and woman’s bodies are different. Men are created to do task for a man, same with women who are molded to do task handed over to a woman. However, our changing time admits that in spirit, emotion and intellectually, man and woman are equal. And in order to make things more equal for both species, our society has created laws acknowledging the physical difference of man and woman and thus granting special rights and privileges to women. Going straight to the point, what I mean to say is that if change of gender will be allowed on the ground of sex reassignment surgery, it will make possible that a person having the physical strength and abilities of a man will be granted with a right entitled only to person having the physical built, strength and abilities of a woman. A person who has undergone the sex reassignment procedure will still be a man, although in appearance he will loss all the distinguishing marks of him being a man, he will still possess that physical strength and abilities God has purposely given to a man. In the end, the law that was created to make the playing field equal for man and woman will not be equal anymore, if somebody, through the intervention of modern science can just change his or her gender. And I believe that no medicine or treatment can totally and wholly change a person’s body, the way the nature has molded it, from one gender to another.

Will it be possible and fair to just have “transgender” sex classification, in addition to “male” and “female” classification in order to properly classify members of third sex who has undergone sex reassignment surgery? Is this the answer to eradicate the discrimination transgenders are experiencing right now? Will this violate fundamental laws and principles of the land?

Let me quote some passages that were laid by the Court in Silverio case:

“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.
To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress”.

As pronounced by the Supreme Court, it could only be possible for transgenders in this country to have their name and sex in their birth record be changed if the legislature has already passed the law covering the said issue. As of now, our laws pertaining to the permissibility of changing one’s name and sex does not include as a ground the sex reassignment surgery. I think the reason for this is that this kind of procedure has not really taken its place in our society considering the fact that the procedure has not yet been done in this country. Most Filipino trangenders has undergone the procedure in other countries such as Thailand.
In line with the above pronouncement, it can be deduced that having “transgender” as a gender classification in addition to “male” and “female” is an issue that can only be addressed by the Congress. If this idea will be given realization, our country will be first in the world to have a three gender classification. At first glance, it can be said that having “transgender” as an additional gender classification will not violate any fundamental laws and principles of the land being only a mere method of identifying and classifying one’s gender.

However, if the changing of one person’s gender is already considered by the Supreme Court as a serious and wide-ranging legal and public policy consequences, I think more so with having “transgender” sex classification. One legal consequence that will be raised if this idea is pursued is the issue on Marriage. Marriage is defined under this jurisdiction as 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. If we allowed transgender to be classified as such – being neither a male nor a female, will they be entitled to contract marriage? Moreover, what rights or privileges that should be applicable to them and what should not be since they have needs that should be addressed differently? These are only few of the many legal confusion that the idea will create.

I also think that classifying transgender as such will not eradicate the discrimination transgenders are experiencing. More so, classifying them would only be a manifestation that they cannot be accepted in both sexes.

Transexualism is really a very sensitive area of discussion. Being a Christian country, it is very difficult for us to accept this kind of modern technology more so, to formulate laws that will give way to its gradual acceptance in this society. Recently, the Supreme Court granted the petition of Ang Ladlad to be considered as a party list representing our brothers and sisters belonging to the so-called third sex. This is an indication that we are willing to accept innovations. Provided however that such innovations will not highly contradict our moral values as a Christian.


Endnotes

[1] Sex Reassignment Surgery. Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Sex_reassignment_surgery

[2] Sex Reassignment Surgery (male to female). Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Sex_reassignment_surgery_%28male-to-female%29

[3] Ibid.

[4] Sex Reassignment Surgery. Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Sex_reassignment_surgery

[5] Ibid.

[6] Silverio vs. Republic, 537 SCRA 373

[7] Republic of the Philippines vs. Jennifer B. Cagandahan, G.R. No. 166676, September 12, 2008, http://elibrary.supremecourt.gov.ph/decisions.php

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