Can a gender be judicially changed?

Can a petition for a change of sex (gender) be judicially granted on the basis of sex reassignment surgery (sex alteration)? In the case Silverio vs. Republic (G.R. No. 174689, 22 October 2007), the Supreme Court rejected the ruling of the Trial Court and pronounced to the effect that there is no law allowing the change of entry in the birth certificate as to sex on the ground of sex reassignment.

If an individual is an intersexual (hermaphrodite) or having both male and female reproductive organs, can a petition for a change of gender be judicially allowed on basis of his or her intersexuality? There is also no law allowing the change of entry in the birth certificate as to sex on the ground of intersexuality.

However, the Supreme Court, in the case of Republic vs. Cagandahan (GR No. 166676, 12 September 2008), affirmed the decision of RTC Laguna granting the Petition for Correction of Entries in Birth Certificate of Jennifer B. Cagandahan to change her name to Jeff Cagandahan and her gender to male. Jennifer was diagnosed of having a Congenital Adrenal Hyperplasia, a rare medical condition where afflicted persons possess both male and female characteristics.

To quote the article in the Supreme Court, the High Court considered “the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial.” It noted that Cagandahan “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.” It stressed that Cagandahan has let nature take its course in her develoment to reveal more fully his male characteristics.

Judicial petition for change of sex on the ground of sex reassignment

When is a man a man and when is a woman a woman? Does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex?

In particular, may a person successfully petition for a change of sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?

These questions were answered by the Supreme Court in the case of Silverio vs. RP, G.R. No. 174689, 22 October 2007.


On 26 November 2002, Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8.

He alleged that he is s a male transsexual, that is, “anatomically male but feels, thinks and acts as a female” and that he had always identified himself with girls since childhood. Feeling trapped in a man’s body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a “woman” culminated on January 27, 2001 when he underwent sex reassignment surgery in Bangkok, Thailand.

From then on, he lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from “Rommel Jacinto” to “Mely,” and his sex from “male” to “female.”

On June 4, 2003, the trial court rendered a decision in favor of petitioner. Its dispositive portion reads:

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioner’s first name from “Rommel Jacinto” to MELY and petitioner’s gender from “Male” to FEMALE.

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals. It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals rendered a decision] in favor of the Republic. It ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Rommel moved for reconsideration but it was denied. Hence, he elevated the case to the Supreme Court.

Supreme Court Ruling

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the statutes. In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes and corrections in entries in the civil register.

Section 2(c) of RA 9048 defines what a “clerical or typographical error” is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

(3) “Clerical or typographical error” refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied)

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:

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth. However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment.

To correct simply means “to make or set aright; to remove the faults or error from” while to change means “to replace something with something else of the same kind or with something that serves as a substitute.” The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, 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.

“Status” refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership.

The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status… include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued.

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.

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words “sex,” “male” and “female” as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary.

In this connection, 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.” Thus, the words “male” and “female” in everyday understanding do not include persons who have undergone sex reassignment.

Furthermore, “words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary.” 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.

Jurisdiction in habeas corpus involving custody of minors

Family courts are vested with original exclusive jurisdiction in custody cases, not in habeas corpus cases. The Court of Appeals (CA) and the Supreme Court (SC) had not been divested of their jurisdiction over habeas corpus cases involving custody of minors. This is the issue in the case discussed below.

Madrinan vs. Madrinan (G.R. 159374, July 12, 2007) - Digest

Facts:

Petitioner Felipe N. Madriñan and respondent Francisca R. Madriñan were married on July 7, 1993.Their union was blessed with three sons and a daughter. After a bitter quarrel, petitioner allegedly left their conjugal abode and took their three sons with him to Albay and subsequently to Laguna.

Respondent sought the help of her parents and parents-in-law to patch things up between her and petitioner to no avail. She then brought the matter to the Lupong Tagapamayapa in their barangay but this too proved futile.

Thus, respondent filed a petition for habeas corpus of the three sons in the CA, alleging that petitioner’s act of leaving the conjugal dwelling and going to Albay and then to Laguna disrupted the education of their children and deprived them of their mother’s care. She prayed that petitioner be ordered to appear and produce their sons before the court and to explain why they should not be returned to her custody.

Petitioner subsequently filed his memorandum alleging that respondent was unfit to take custody of their three sons because she was habitually drunk, frequently went home late at night or in the wee hours of the morning, spent much of her time at a beer house and neglected her duties as a mother. He claimed that, after their squabble, it was respondent who left, taking their daughter with her. It was only then that he went to Laguna where he worked as a tricycle driver.

He also questioned the jurisdiction of the CA, claiming that under Section 5(b) of Republic Act (”RA”) No. 8369 (otherwise known as the “Family Courts Act of 1997”), family courts have exclusive original jurisdiction to hear and decide the petition for habeas corpus filed by respondent.

For her part, respondent averred that she did not leave their home on May 18, 2002 but was driven out by petitioner. She alleged that it was petitioner who was an alcoholic, gambler and drug addict. Petitioner’s alcoholism and drug addiction impaired his mental faculties, causing him to commit acts of violence against her and their children. The situation was aggravated by the fact that their home was adjacent to that of her in-laws who frequently meddled in their personal problems.

The CA rendered a decision asserting its authority to take cognizance of the petition and ruling that under Article 213 of the Family Code, respondent was entitled to the custody of the two younger sons who were at that time aged six and four, respectively, subject to the visitation rights of petitioner. With respect to eldest son who was then eight years old, the court ruled that his custody should be determined by the proper family court in a special proceeding on custody of minors under Rule 99 of the Rules of Court. Petitioner moved for reconsideration of the CA decision but it was denied.

Issue:

Whether the CA had no jurisdiction to issue the writ of habeas corpus as jurisdiction over the case is lodged in the family courts under R.A. 8369.

Ruling:

RA 8369 did not divest the CA and the SC of their jurisdiction over habeas corpus cases involving custody of minors. The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the CA and the SC to issue said writ. Said law should be read in harmony with the provisions of RA 7092 (expanding the jurisdiction of the CA) and Batas Pambansa Blg. 129 (the “Judiciary Reorganization Act of 1980″) — that family courts have concurrent jurisdiction with the CA and the SC in petitions for habeas corpus where the custody of minors is at issue. This is in fact affirmed by Administrative Circular 03-03-04-SC, dated April 22, 2004.

In this case, after petitioner moved out of their residence, he twice transferred his sons to provinces covered by different judicial regions. By giving the family courts exclusive jurisdiction over habeas corpus cases will result in an iniquitous situation leaving individuals like the respondent without legal recourse in obtaining custody of her children. Individuals who do not know the whereabouts of minors they are looking for would be helpless since they cannot seek redress from family courts whose writs are enforceable only in their respective territorial jurisdictions. This lack of recourse could not have been the intention of RA 8369.

Moreover, under RA 8369, the family courts are vested with original exclusive jurisdiction in custody cases, not in habeas corpus cases. Writs of habeas corpus which may be issued exclusively by the family courts under said law pertain to the ancillary remedy that may be availed of in conjunction with the petition for custody of minors under Rule 99 of the Rules of Court.

Writ of Amparo

Concerned about the growing number of cases of disappearance in the country, the Supreme Court (SC) now contemplates introducing the writ of amparo into the legal system to give more protection to constitutional rights of a person as the petition for habeas corpus has proved not very effective remedy in compelling the state to produce person thought to be victim of disappearance.

In the Philippines, relative of missing person usually seeks legal remedy by filing a petition for habeas corpus, a special proceeding under Rule 102 of the Revised Rules of Court, to compel the state to produce person thought to be victim of disappearance.

However, the SC said recently that petitions for habeas corpus usually end up with state agents simply denying they had the missing person in their custody.
Chief Justice Panganiban explained that the writ of amparo would compel state agents to look for the missing person and the agents would be held liable if they did not exert adequate effort in finding the person.

The writ of amparo or amparo (literally means protection), which was asked in a previous bar exams, is typically Mexican having been first adopted in Mexico in 1857. It is broader in scope and application than the writ of habeas corpus in that it protects a person against illegal arrest and violation of human rights.

In Mexican jurisdiction, the amparo procedure has two parts. The preliminary one – suspension incident – tends to prevent the consummation of alleged violations. The court without emitting any opinion as to whether or not the acts stated really do violate an individual right, suspends their effects so that the final decision granting the amparo may have practical effect. In the other part of the procedure the facts alleged are proved and a study is made of them as to whether or not they violate the rights invoked (The Writ of Amparo, The Mexican Procedure to Protect Human Rights by Carlos Sabchez Mejorada).

Under Sec. 5(5) of Art. VIII of the Constitution, the SC is clothed with a law-making power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts. The provision is intended not only to underscore that constitutional rights are mere declaratory but also enforceable. By virtue of this constitutional grant of power, the SC may adopt the writ of amparo in order to effectively shield a person against the violation of human rights by arbitrary authorities.