CHAPTER I

INTRODUCTION

“Born with both male and female characteristics, born predominantly

female and later on developed male characteristics, born with male physical

characteristics but hormones are predominantly female, these are the common

descriptions of what we now come to know as intersex. Intersexuality is an

occurrence where an individual does not fit to the binary system of classification

of a person’s sex.”1 The ordinary notion on classification of gender is that a

person is either male of female. This system leaves no room for those who are

biologically neither or both.2 Although, the recognition of intersex rights is

advocated in the field of law for being absent, it should be noted that throughout

history intersexuality is recognized. In ancient cultures a third sex was

acknowledged, a Greek myth for example tells the story of Hermaphroditus, who

became half male and half female when his body fused with a nymph. 3 In Native

American cultures intersex individuals enjoy a special status, function as neither

male nor female and are called two-spirit (Berdache).4 India also recognize a third

sex, either intersex or transgender, called hijras.5 Intersexuality, therefore, is not a

1
Statement on intersex by UN High Commissioner for Human Rights OII Australia, Intersex Australia (Aug
24, 2017 11:38 p.m.), https://oii.org.au/29966/statement-hrc30-intersex/
2
Anna Chiles, Classification and the Gender Binary: Understanding, Serendip Studio (Aug 26, 2017 2:16
p.m),http://serendip.brynmawr.edu/exchange/achiles/classification-and-gender-binary-understanding-
intersexuality.
3
Luc Brisson, Sexual ambivalence: androgyny and hermaphroditism in Graeco-Roman antiquity, 42 (2002).
4
Sue-Ellen Jacobs, Two-spirit people: Native American gender identity, sexuality, and spirituality, 100
(2005).
5
Serena Nanda, The Hijras of India: 11 Journal of Homosexuality 35–54, 35-54 (1986).
new occurrence but rather a rarely talked occurrence because of the lack of

awareness in the international and local community.

In the Philippines there are no specific laws recognizing, protecting and

granting rights to intersex individuals. The failure to address such, results to

ambiguity in the treatment of the intersex minority. One of the effects is the

ambiguity in the registration and change of registered sex in their birth

certificates, the latter being dependent on a binary standard. Such standard was

developed before the acknowledgement of the LGBTQ (Lesbian, Gay, Bi-sexual,

Transgender and Queer), now LGBTQIA (Lesbian, Gay, Bi-sexual, Transgender,

Queer, Intersex and Asexual), sector of the society. The lack of conversation,

awareness and acknowledgement of the presence of intersex minorities created a

gap in the law that should be addressed. Philippine statutes provide for a change

in the registered sex when there is clerical or typographical error 6 provided that

the error is visible to the eyes and obvious to the understanding, said law does

not accommodate the unique situation of intersex individuals when the error is

due to biological causes. The closest related standard set is by Philippine

jurisprudence, in the case of Republic v. Cagandahan7 where the Supreme Court

allowed the change of name of an intersex individual from Jennifer to Jeff and the

gender from female to male. The Supreme Court considered “the compassionate

calls for recognition of the various degrees of intersex as variations which should not be

6
An Act Further Authorizing the City or Municipal Civil Registrar or the Consul general to Correct Clerical
or Typographical Errors in the Day and Month in the Date of Birth or Sex of a Person Appearing in the Civil
register Without Need of a Judicial Order, Amending for this Purpose Republic Act Numbered Ninety Forty-
Eight, R.A. No. 10172 § 2 (2012)
7
Republic of the Philippines vs. Jennifer B. Cagandahan, G.R. No. 166676 (2008)

1
subject to outright denial.” It is in the case of Cagandahan that the Supreme Court

provided certain standards in recognizing the diverse and unique situation to

warrant the change of registered sex in the birth certificate of an intersex person.

In contrast, in the case of Silverio v. Republic8, the court denied the petition of

Silverio to change his registered sex from male to female because the law does not

allow the change in entry of birth certificate on the ground of sex reassignment.

In the future, one may rely on the case of Cagandahan to petition a change

of registered sex but it is uncertain whether or not the Supreme Court rules the

same way. In contrast, in common law countries the court decisions are largely

based on precedents, meaning the judicial decisions that have already been made

in similar cases are relied on. When in comes to Philippine jurisprudence, the

status of the doctrine of stare decisis is indeterminate. The Supreme Court applied

the doctrine in the part although recent cases have been decided to the contrary.

There is no specific standard set on applying the doctrine of precedent, in some

cases the Supreme Court even rule contrary to the decision already established. 9

Thus, the main purpose of this study is to propose for the creation of a statutory

right from the ruling set in the Cagandahan case for the benefit of intersex

individuals who would want to petition a change of their registered sex. This

study will also aim to provide for adequate guidelines in the correction of entries

in the civil registry with regard to the change in sex though natural causes.

8
Rommel Jacinto Dantes Silverio vs. Republic of the Philippines. G.R. No. 174689 (2007)
9
Emiliano M. Lazaro, The Doctrine of Stare Decisis and the Supreme Court of the Philippine Islands,16 PLJ.
404 (1935)

2
STATEMENT OF THE PROBLEM

Taking into consideration the complex nature of being intersex and the

lack of legal standards as to account for variable change, the following legal

questions are presented:

1) Did the Supreme Court, in Republic vs Cagandahan, exceed its authority

when it created a new right by allowing the change of registered sex,

despite not being a clerical or typographical error?

2) Is it necessary that congress pass a law confirming the rule in Cagandahan

case considering the availability of current law and jurisprudence on the

matter?

A. In relation to the right to change the registered sex, how should the

law treat the correction, with respect to its substantial and

procedural aspect?

B. What should be proved in order to grant the change on registered

sex and what are the standards needed in accordance with the

ruling in the case of cagandahan?

3) Is the choice to change registered sex a constitutionally protected right

inherent to an intersex individual?

A. Is the change of registered sex free from any state interference or

compulsion?

3
 B. Is the right to change the registered sex personal to the intersex

individual, which cannot be encroach upon by parental authority?

4) What is the effect of the change of registered sex? Is there an effect to the

validity of a prior contracted marriage by an intersex individual?

OBJECTIVES

The main objective of this study is to determine the right of intersex

individuals with respect to the choice to change of their registered sex upon

reaching the age of maturity. This study also aims to recommend necessary

legislation to accommodate intersex individuals both in substantial and

procedural aspects.

I. Discuss current Philippine laws and jurisprudence, its substantial and

procedural aspect, on the change of registered sex and its applicability to

intersex person.

II. To prove that the Supreme Court validly exercised judicial power by

supplying a gap in the law in the Cagandahan case, with regard to the

proceedings required in the change of the registered sex on the birth

certificate of an intersex person.

4
III. To prove that there is a need for congress to pass a law adopting the ruling

in Republic vs. Cagandahan, in order to set standards in the change of

registered sex. Discussing that:

A. The passage of RA 10172 does not affect the ruling in

Cagandahan because the former only applies to clerical and

typographical error.

B. The change of registered sex shall be made in a judicial

proceeding as provided in rule 108 of the ROC and along with

the standard set in the proposed law.

C. The person seeking to change their registered sex must first prove

to be biologically intersex and the grant of change shall likewise

be based thereof.

IV. To discuss the right of an intersex individual to change their registered sex

is based on the Constitutionally protected Right to Privacy, further

discussing that:

A. The choice to change the registered sex is purely personal to the

intersex individual. The state, therefore, shall not interfere with

such choice absent any compelling state interest.

B. The determination sex is, being personal and inherent, not subject

to Parental authority.

5
 V. To determine the effect of the change of registered sex to the rights of the

intersex individual.

A. The change of registered sex shall not affect the validity of

marriage contracted prior to the petition.

B. Upon the grant of the petition to change, the individual shall

acquire all the rights of the newly registered sex and the effects of

such decree shall apply prospectively.

VI. To recommend a law granting the right of intersex people to change their

registered sex; incorporating the standard set in the Cagandahan case

ruling and providing for procedural details with respect to who should

file, when and where to file, the grounds and limitations, proof required

and the proceedings of the change.

SIGNIFICANCE OF THE STUDY

To provide standards in a proposed law, which grants intersex individuals

the right to change their registered sex. The significance of this study is to prove

that such right must be statutory and not merely provided for in jurisprudence.

That the gap in the law with regard to the treatment of the intersex must be

addressed because the latter is a protected minority and must be given

6
recognition and due treatment in order to address the unique situation in the

development of intersex individuals.

SCOPE AND LIMITATIONS

This research is conducted to determine the need for a statute that

provides for standards in the change of registered sex of an intersex person. It

focuses on the Cagandahan case in relation to the necessity of the legislature to

adopt jurisprudence into law in relation with current laws on change of entries

appearing in civil register. The research looks into the aspects that are to be taken

into consideration when setting statutory standards for change of registered sex,

which are the biological and physiological aspect of an individual. The cultural,

psychological and social aspects are not to be taken into account in this study.

The application of the study and proposed law is limited on the situation of an

intersex individual with ambiguous sexual attributes, both having male and

female characteristics, and not applicable to transgender with congruent and

determinable sex from birth. The discussion on the effect of the change in

registered sex to marriage is limited only to the extent of its validity. The scope

and bounds of parental authority when it comes to an intersex child is discussed

to be able to provide a clear delineation on when an intersex individual, who

undergone medical intervention, is allowed to file a petition and shall limit its

7
discussion to the effect on the petition for the proposed law and shall not delve

deeper into the liability of the parents.

DEFINITION OF TERMS

A. Intersex- Intersex people are born with sex characteristics including

genitals, gonads and chromosome patterns that do not fit typical binary

notions of male or female bodies.

B. Transgender- According to Merriam-Webster dictionary is relating to, or

being a person whose gender identity differs from the sex the person had

or was identified as having at birth; especially:  of, relating to, or being a

person whose gender identity is opposite the sex the person had or was

identified as having at birth. It should be distinguished from intersex, that

is the subject of this paper, because transgender is defined to have a certain

binary classification upon birth.

C. Binary Classification System- This paper uses the plain, ordinary and

popular sense of Binary Classification System which is defined as

consisting of two gender, male and female, and based on biological or

one’s sex upon birth.

D. Registered sex- The use of registered sex in this paper refers to the entry of

sex in an individual’s birth certificate in the Civil Register. The use of “sex”

8
 as supposed to “gender” is to delineate that the former involves and refers

to the biological aspect rather than cultural and social aspect, which the

latter is commonly associated with.

CHAPTER II

REVIEW OF RELATED LITERATURE

A. The nature of being Intersex

Intersex people are born with sex characteristics including genitals, gonads

and chromosome patterns that do not fit typical binary notions of male or female

bodies. 10 This is a rare occurrence, nonetheless, still present in the Philippines but

rarely advocated and talked about. Because their bodies are seen as different,

intersex children and adults are often stigmatized and subjected to multiple

human rights violations, including but not limited to their right to health and

physical integrity, to be free from torture and ill-treatment, and to equality and

non-discrimination.11 A popularly misinterpreted and old prevalence statistic

says that intersex people make up 1 in 2000 or .05% of the population, which is

erroneous because it refers only to one specific intersex trait that is the ambiguous

genitalia. When in fact, combined with other medical diagnostics would

10
 Statement on intersex by UN High Commissioner for Human Rights OII Australia, Intersex
Australia (Aug 24, 2017 11:38 p.m.), https://oii.org.au/29966/statement-hrc30-intersex/
11
Id.

9
constitute an estimated 1.7% of the population which makes being intersex about

as common as having red hair (1%-2%).12

A.1. The Different Intersex Conditions

As for the factors to the determination of a person’s sex, medical experts

provide typical criteria in doing so, such as the genetic or chromosomal sex (XY

for male or XX for female), gonadal sex (reproductive sex glands; testes or

ovaries), internal morphologic sex (seminal vesicles prostate/vagina/

uterus/fallopian tubes), external morphologic sex or commonly known as

genitalia (penis/scrotum /clitoris/labia), hormonal sex (androgen/estrogens)

phenotypic sex (secondary sexual features; facial and chest hair/breast) 13 all these

factors are commonly harmonious for most people therefore one’s status as a man

or woman is uncontroversial. For an intersexual, however, some factors may be

inconsistent or an ambiguity within a factor may exist. Intersex individual have

incongruent sexual attributes and takes combination of male and female

characteristics, either in just one or multiple factors. 14 In chromosomal ambiguity

certain intersex individuals have a variety of combination such as: XXX, XXY,

XXXY, XYY, XYYY, XYYYY and XO rather than the common chromosomal
12
Hida, Intersex Campaign for equality, intersexequality.com, https://www.intersexequality.com/how-
common-is-intersex-in-humans/ (last visited January 19, 2018)
13
John Money, Sex Errors of the Body and Related Syndromes: A guide to Counseling Children, Adolescents
and their Families (2d ed. 1994)
14
John Money & Patricia Tucker, Sexual Signature: On Being a Man or a Woman 6 (1975)

10
characteristic of XY or XX.15 Some individuals, may have gonadal ambiguity by

having both male and female gonads, others have one ovary and one testis, or

may even have “streak” gonads that do not function as either. In external

morphologic sex some intersex women have clitoral hypertrophy, wherein their

clitoris is larger than the typical clitoris and may resemble to a penis but

accompanied by an internal vagina.16 Others have incomplete internal sex organs

or a complete absence of internal sex organs that causes ambiguity in their

internal morphological sex. As for the hormonal sex factor, normally, men and

women have both androgens (male) and estrogen and progesterone (female) but

there are cases wherein different medical disorders occurs that are caused by

abnormal hormone production. The phenotypic sex of an individual may vary in

combination such that one may have characteristics that are typically male (heavy

facial hair) and also have characteristics that are typically female (developed

breast).17

There are many variations of intersex conditions18 among them and the

most prevalent is Congenital Adrenal Hyperplasia (CAH), which is the

overproduction of hormones in the adrenal gland causes masculinization of the

15
Robert Pool, Eve’s Rib: Searching for the Biological Roots of Sex Differences 80 (1994)
16
See Money, supra note 3, at 49-57
17
Julie A Greenberg. Defining Male and Female: Intersexuality and the Collision Between Law and Biology. 
41(2) ALR, 282 (1998).
18
(1)Congenital Adrenal Hyperplasia (2) 5-alpha-reductase deficiency (3) Partial androgen insensitivity (4)
Penile agenesis (5) Complete androgen insensitivity, (6) Klinefelter syndrome (7) Turner syndrome (8)
Vaginal agenesis. See APA Task Force on Gender Identity, Gender Variance, and Intersex Condition,
Margaret Schneider, et. Al., Answers to Your Questions About Individuals with Intersex Conditions.
American Psychological Association (2006) See Appendix A

11
genitals in female infants.19 A person with this condition, usually has a swollen

clitoris with the urethral opening at the base, an ambiguous genitalia often

appearing more than male than female, normal internal structures of the female

reproductive tract such as ovaries, uterus and fallopian tubes, as the child grows,

some features start to appear male, such as deepening of voice, facial hair, and

failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born

with CAH.20

A.2. Tests to determine the Intersex Condition

Numerous medical tests can be availed of to determine the intersex

condition, herein enumerated are some of the reliable tests that can be resorted to

in order to ascertain the intersex condition and as well as the dominant traits

upon maturity. The testing and diagnosis of an intersex condition are performed

by experts, for example a child’s doctor may make the first determination

through a visual physical examination but beyond the visual the physician may

perform blood test in order to conduct a genetic test, usually known as

Karyotyping. Aside from blood test, an endocrinologist (a specialist in gland and

hormone diseases) may conduct testing to determine the hormonal levels of a

person. An Ultrasound, Reproductive Biopsy or other tests may also be

performed to examine the genital and internal organs of a person. 21

19
Id.
20
See Republic vs. Cagandahan. supra note 7
21
Ambiguous Genitalia and Intersex Condition, Internal Medicine and Pediatric Clinic (2007),
http://www.impcna.com/intranet/Nelson Pediatric/Newborn/Ambiguous Genitalia[1].pdf (last visited
Feb 25, 2018). See Appendix B

12
B. Philippine Setting: The law relating to change of entries in the civil registry.

Article 408 of the New Civil code provides for entries that shall be entered

in the civil register22 and that any change or correction in the latter shall be made

in a judicial order under Article 412 of the same code. 23 The cancellation or

correction of entries in the civil registry to implement Article 412 of the civil code

must me made in accordance with Rule 108 of the Rules of Court. 24 Although as a

general rule, actions filed under Rule 108 are summary in nature, the fact that the

petition is published once a week for three consecutive weeks and the civil

registrar or any person having claiming interest in entries sought to be cancelled

and/or corrected files and opposition and is actively prosecuted makes it an

adversarial proceeding.25 A change or correction may be made, Under R.A. No.

9048 as amended by R.A. 10172, through an administrative proceeding when it

involves clerical or typographical errors of a person’s First Name, Nickname, Day

and Month in the birthdate and Sex. 26 The law contemplates only errors, which

are visible to the eyes or obvious to the understanding, and can be corrected or

changed only by reference to other existing record or records. 27

22
Civil Code, Book 1, Title XVI, Article 408.
23
Id. Art. 412.
24
Cancellation or Correction of entries in the Civil Registry. Rules of Court, Rule 108
25
Magdangal M. De Leon & Dianna Louise R. Wilwayco, On Special Proceedings: Essential for Bench and
Bar (Rex Book Store, Manila, 2015) (2015).
26
See R.A. No. 10172, supra note 6
27
Id.

13
C. Philippine Setting: Jurisprudence on Change of Registered Sex in the civil

Registry.

As for jurisprudence, the only standard in the Philippines relating to the

issue of the change in registered sex marker in the civil registry, are Silverio vs.

Republic and Republic vs. Cagandahan. In the former case, the court denied the

petition for change of register sex while the latter was granted.

C.1 Silverio vs. Republic , G.R. No. 174689 October 22, 2007

In the case of Silverio vs. Republic28, Rommel Jacinto Dantes Silverio was born

male, after undergoing a sex reassignment surgery in Thailand, petitioned the

Trial Court for change of his sex from male to female and first name from

“Rommel” to “Mel” in his birth certificate. The Supreme Court denied the

petition because no law allows the change of entry of sex in the birth certificate by

reason of sex reassignment; that Changes sought by Silverio will have serious

legal and public consequences. To grant the petition will greatly alter the laws on

marriage and family relations and there will be major changes in statutes that

underscore the public policy in relation to women.

C.2. Cagandahan vs. Republic, G.R. No. 166676, September 12, 2008

In the case of Cagandahan vs Republic, the Supreme Court allowed the

change of name from Jennifer Cagandahan to Jefff Cagandahan and gender from

female to male. Jeff was registered female at birth and later on developed
28
G.R. No. 174689 (2007)

14
secondary male characteristics. Jennifer, now Jeff, was diagnosed with Congenital

Adrenal Hyperplasia (CAH) that is an intersex condition where a person

produces too much androgen, a male hormone causing ambiguity in the genitalia

and of the sex characteristics. The Supreme Court ruled “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.” (Emphasis supplied)

In deciding the case, the Court considered the various degrees of intersex

variations which should not be subject to outright denial; that there is some

middle ground where individuals are neither truly male nor truly female.

Considering medical testimony, scientific development and the biological nature

of Jeff, the Court ruled that a change in the birth certificate is proper: “that Jeff

simply let nature take its course and has not taken unnatural steps to arrest or interfere

with what he was born with and has already ordered his life to that of a male.”(Emphasis

supplied)

The Court, in its decision, did not consider that Jeff erred in not choosing

to undergo treatment in order to become or remain female and neither did the

former forced the latter to undergo treatment to take medication in order to fit the

mold of a female. As held by the Supreme Court “the human right to pursuit

15
happiness and of health belongs to Jeff and primordial choice of what courses of action to

take along the path of his sexual development and maturation.” (Emphasis supplied)

It is important to distinguish between Silverio, who is a transgender, and

Cagandahan, who is intersex, in order to differentiate the crux of the ruling of the

Supreme Court. The former altered what is biologically natural by undergoing

sex reassignment surgery while the latter, being biologically intersex, allowed

nature to take its course. By the mere fact of being intersex, there indeed is an

error in the registration of Jeff’s sex marker that warrant the change of its entry.

The condition was not apparent at birth and was developed latter on in life, most

often during puberty.

C.3. Philippine setting of Intersex Individuals

Dr. Margarita Holmes in her article explores the nuances within the

experience of someone who identifies as an intersex person with Partial

Androgen Insensitivity Syndrome in the Philippines. 29 In another article written

by Rey Ty, a political observer and lecturer, who received his doctorate from

Northern Illinois University and his Master’s degrees from the University of

California at Berkeley and Northern Illinois University. He posed that it is Due to

ignorance; many doctors and parents decide to make a baby exclusively male or

29
Margarita Holmes, Clinical Notes Identifying as intersex, Rappler.com https://www.rappler.com/life-
and-style/relationships/98343-clinical-notes-identify-intersex (last visited January 22, 2018)

16
exclusively female, by performing “normalizing” surgery on the genitalia. 30

Mentioned in such article how one in 2,000 people will be uncomfortable to check

the box of choosing between male or female because they were never really truly

one or the other. And that peers and support group may help the LGBTQ people,

when it comes to the I (intersex) they often times time need more than that; they

need to consult specific knowledgeable and high skilled medical team that

understands their biological conditions, social construct, gender identity and

sexual orientation.31

D. Studies on Binary Classification of Sex.

The Binary classification in birth registration and lack of legal framework

to accommodate the intersex group is prejudicial to diversity movement. Julie

Greenberg, of San Diego's Thomas Jefferson School of Law, examines binary

assumptions in the law and offers a brief discussion of how biology confounds

those assumptions. Greenberg then examine cases which have produced legal

definitions of the terms "male," "female," and "sex," and analyzes the legislative

intent underlying laws which differentiate, based upon sex in order to determine

to what extent presumed legislative goals are actually accomplished. By clinging

to a binary system that blindly ignores the existence of intersexual and the

30
Rey Ty, Female, male, or both? We need to talk about intersex persons, Rappler.com,
https://www.rappler.com/move-ph/101988-intersex-persons-awareness (last visited January 22, 2018)
31
Id.

17
importance of self-identity, reinforces the perception that intersexuality is

unacceptable.32

In a mixed-method study by Katrinka Schweizer et. al on divergence of sex

development Of the 69 participants with a number of divergences of sex

development (DSD), gender allocation at birth was female in 83% and male in

17%. Seventy-five per cent were satisfied with gender allocation. As adults, 81%

lived in the female gender role, 12% in the male role and 7% chose other roles.

Nine per cent reported gender change or reallocation. Twenty-four per cent

reported an inclusive ‘mixed’ two-gender identity, including both male and

female elements, and 3% reported a neither female nor male gender identity.

Twenty-six per cent were highly uncertain about belonging to a specific gender,

14% received increased transgender scores on the gender identity questionnaire

(GIQ). The dichotomous categorization of gender fails to capture the gender

experiences of a significant proportion of the participants. A reconsideration of

the medical approach towards intersexuality, which is currently based on a

binary categorization, is discussed.33

D.1 Intersex Recognition in International Law and Jurisprudence

32
Id. at 265-328.
33
Gender experience and satisfaction with gender allocation in adults with diverse intersex conditions
(divergences of sex development, DSD), Taylor & Francis (Aug 25, 2017 1:23 a.m.),
http://www.tandfonline.com/doi/abs/10.1080/19419899.2013.831216

18
 Currently, there is an international movement that law should not be

limited to the binary system in the determination, recognition and registration of

an individual’s sex. Several legislatures have adopted statutes that authorize the

issuance of a new birth certificate indicating a sex marker other than the one

designated on the original certificate. Theses statutes generally authorize the

issuance of a new birth certificate upon presentation of an affidavit from a

physician stating that the sex designated on the original birth certificate was

incorrect or have changed overtime different from that at birth. While other states

require a court order.

In Japan the Gender Change Bill (2003) allowed people with “Gender

Identity Disorder” to ask a family court for a change of gender on the family

registry but only if they were (1) diagnosed by at least two medical experts as

having “Gender Identity Disorder” (2) older than 20 years of age (3) single and

childless (4) have already completed sex reassignment surgery. 34

In Indonesia change of gender after reassignment surgery can be legally

effected by a district court.35 One of the most important legislative changes of

recent times is the enactment of the Argentinian Gender Identity Law 2011, a

comprehensive law that allows for persons to change their gender identity in all

34
Makiko Matsumoto, What has been achieved with the Bill of Gender Change for People with Gender
Identity Disorder?, 11 Women’s Asia 21: Voices from Japan 51, 52 (2003).
35
Asia Pacific Forum, Asia Commission of Jurists Report: Human Rights, Sexual Orientation and Gender
Identity (August 26, 2017 2:47 p.m.)
http://www.asiapacificforum.net/support/issues/acj/references/sexualorientation/

19
documents including the national identity document. While the law applies to

adults (persons above eighteen), minors can also use the provisions of the law

provided that there is explicit consent from the minor through the minor’s legal

representatives. The Argentinean model, and current debates within the gender

minority community shows that best practices involve self-certification, where

the state need not vet a person’s gender claims.36

In 2013, Australia adopted the Sex Discrimination Amendment (Sexual

Orientation, Gender Identity and Intersex Status) Act; the first law to include

intersex status as a stand-alone prohibited ground of discrimination. The

Australian Senate has also carried out an official inquiry into the involuntary or

coerced sterilization of intersex people. In 2015, Malta adopted the Gender

Identity, Gender Expression and Sex Characteristics Act – the first law to prohibit

surgery and treatment on the sex characteristics of minors without informed

consent. It also prohibits discrimination on the basis of sex characteristics. 37

As for international jurisprudence with regard to the change of name and

sex designation indicated on birth certificate usually brought by transsexuals

after sex modification surgery. There are fewer cases that mention intersex

individuals being the subject of the controversy. In U.S. case decided in the year
36
English Translation of Argentina’s Gender Identity Law as approved by the Senate of Argentina
(Alejandra-Sarda Chnadiramani and Radhika Chandiramani trans., 2012), available at
http://globaltransaction.files.wordpress.com/2012/05/argentina-genderidentity-law.pdf.
37
United Nations Human Rights Office of The High Commissioner, Free and Equal United Nations For
LGBT Equality,unfe.org, https://unfe.org/system/unfe-65-Intersex_Factsheet_ENGLISH.pdf (last visited
March 6, 2018)

20
1968, a post-operative transsexual brought an action requesting a change in the

name and sex designation on the birth certificate in the case of In re Anonymous38

wherein the court refused to recognize transsexuals and hermaphrodites as a

third sex and adopted that if disharmony exist between the psychological sex and

the anatomical sex, sex will be determined by anatomy.39 If the physiological sex

and anatomical sex are matched, then the sex should reflect the harmonized

status of the individual. Thus, if the transsexual undergoes modification surgery,

official sex should change as well.40

D.2. Intersex Athletes Case: Caster Semenya and Dutee Chand

Caster Semenya, a South African middle- distance runner and 2016

Olympic Gold medalist, has hyperandrogenism, which is a condition that means

her testosterone levels are three times that of the average woman, giving her a

broad, muscular frame. Despite being female, she is also said to have internal

testes. Then 18 years old, Semenya called the leak of the information regarding

her intersex status as ”an unwarranted and invasive scrutiny of the most intimate

and private details of my being.” Semenya identifies as female, but some argue

that her hormones give her an unfair advantage over other women and that for

the purposes of the Olympic Games she should not be classified as such. The

International Association for Athletics Federations (IAAF) decided it would

impose a limit on the levels of testosterone a person could have in their body and

38
239 N.Y.S.2d 834 (N.Y. Civ. Ct. 1968)
39
Id.
40
Id.

21
be able to compete in women’s events. This forced Semenya to take drugs, which

lowered her hormone levels, reducing her muscle mass and affecting her

performance. But in July of 2015, the Court of Arbitration for Sport (CAS)

overturned the ruling after a complaint from Indian athlete Dutee Chand, who

has the same condition as Semanya. CAS ruled that there is insufficient evidence

to link hyperandrogenism to a competitive advantage, freeing Semenya to stop

taking the hormone-limiting drugs.41

Dutee Chand, the Indian athlete, with the same condition of Semanya was

disqualified in 2014 by the Athletic Federation of India (AFI) as per Association

for Athletics Federations (IAAF) hyperandrogenism policy after tests revealed

that her body produced natural levels of testosterone above permissible range.

She challenged the regulations and the decision of the Athletic Federation of

India (AFI) to ban her in September 2014. In the CAS ruling of July 27, 2015 had

said that there was no clear evidence that she might have benefited from her

condition of having enhanced testosterone levels than others. It had said that the

Hyperandrogenism Policy will be deemed null and void if the IAAF does not

present more scientific evidence establishing that naturally high testosterone

levels provide an unfair athletic advantage to hyperandrogenic female athletes as

compared to their peers.42 On January of 2018, by virtue on an appeal made by

41
Reiss Smith, Who is Caster Semenya? Should the ‘intersex’ athlete be ALLOWED to compete as a
woman?,express.co.uk,https://www.express.co.uk/sport/olympics/700091/rio-2016-olympics-caster-
semenya-intersex-runner-gender (Last visited January 22, 2018)
42
Dutee Chand’s ‘gender case’ to be re-opened, IAAF to return to CAS
hindutimes.comhttps://www.hindustantimes.com/other-sports/dutee-chand-s-gender-case-to-be-re-
opened-iaaf-to-return-to-cas/story-vqQ77jYyIECGaJkIksiVTI.html (last visited Janruary 22, 2018)

22
IAAF, the Court of Arbitration for Sport (CAS) suspended proceedings in the

hyperandrogenism case involving India's sprinter Dutee Chand for six months.

The hyperandrogenism regulations of the International Association of Athletics

Federations (IAAF) remain suspended for the said period.43

E. Jurisprudence into law: Judicial process in common law countries

In relation to the issues presented, it is important to take a look into the

process of adopting jurisprudence into law in order to support the notion that

there is a necessity for legislature to create a law adopting the Cagandahan case

ruling. Common law is generally uncodified. While common law does rely on

some scattered statutes, which are legislative decisions, it is largely based

on precedent, meaning the judicial decisions that have already been made in

similar cases. These precedents are maintained over time through the records of

the courts as well as historically documented in collections of case law known as

yearbooks and reports. The precedents to be applied in the decision of each new

case are determined by the presiding judge. As a result, judges have an enormous

role in shaping American and British law. 44 As compared to civil law that is

generally codified and operates in areas of family relations, inheritance, contracts,

43
CAS puts off Dutee Chand hearing by six months, indiatimes.com,
https://timesofindia.indiatimes.com/sports/more-sports/athletics/cas-puts-off-dutee-chand-hearing-by-
six-months/articleshow/62577700.cms (last visted January 22, 2018)

44
R.C. Van Caenegem, The Birth of the English Common Law (Cambridge, 1988).

23
criminal law in the Philippines. On the other hand, principles of common law are

also evident in constitutional and procedural law in the Philippines. 45 Therefore,

Philippines’ hybrid legal system has blended together the underlying

philosophies of the principle of stare decisis of the common law system, and the

evolving principles of judicial precedents of the civil law systems. 46 According to

Cesar Villanueva the theory on judicial precedents in the Philippines are

attributable to 5 factors: (1) the adoption of the American court system; (2) the

constitutional powers vested in the Supreme Court; (3) the transplant of Anglo-

American principles in the Philippine legal system; (4) the continuing influence of

civil law; and (5) the cultural, social, and economic demands of Philippine

society.47 The Supreme Court referred to the principle of stare decisis and accepted

its applicability in Philippine jurisdiction. However, other statements of the high

Court that it refuses “blind adherence to precedents.” 48 The Supreme Court even

held that its decisions by themselves are not law but are merely evidence of the

meaning of the law.49

45
Myrna S. Feliciano, Law, Gender, and the Family in the Philippines, 28 Law & Society Review, 547-560
(1994)
46
Cesar Villanueva, Comparative Study of the Judicial Role and Its Effect on the Theory on Judicial
Precedents in the Philippine Hybrid Legal System 5 Phil. L.J. 42 (1990-1991) 
47
Id. at 45
48
See Villanueva, supra, at 59
49
People v. .Licera, G.R. No. L-39990 (1975).

24
 CHAPTER III

ANALYSIS AND DISCUSSION

I. The Supreme Court validly exercised judicial power in Republic vs

Cagandahan by merely supplying a gap in the law in setting standards in a
petition for change of registered sex of an intersex individual.

A change in registered sex is not expressly provided for under the New

Civil Code in relation to the Rules of Court. Article 412 of the Civil Code

provides: “No entry in a civil registrar shall be charged or corrected without a

judicial order.” The entries referred to in the latter article are enumerated under

Art. 408 of the Civil Code, which are:

“(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)

annulments of marriage; (6) judgments declaring marriages void

25
 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.”

Changes allowed under Art. 412 in relation to Art. 408 are made through a

judicial proceeding as prescribed under Rules 10350 and 10851 of the Rules of

Court. While, there may be no mention of a change of registered sex in the above-

mentioned set of rules, Republic Act. No. 9048 allows correction or change of

entries in civil registrar in so far as clerical or typographical errors are involved. 52

In effect, R.A No. 9048 removed the correction of such errors from Rule 108 and

now the latter applies only to substantial changes and corrections of entries in the

civil register.53

When Republic vs. Cagandahan was decided, no law was provided explicitly

allowing the change of registered sex. One of the issues presented in said case is

the propriety of the Courts’ ruling in allowing the change of Cagandahan’s

registered sex, when no law explicitly allows such.

50
The Rules of Court, Part II, Rule 103. See Appendix
51
Id. Rule108. See Appendix
52
RA. 9048 amended by RA 10172. Refered in the thesis as RA 9048. See appendix
53
Republic vs. Cagandahan, G.R. No. 166676 (2008). It is important to note that during the time the Supreme
Court ruled in Republic v. Cagandahan R.A 9048 was not yet amended by R.A. 10172 which is the law
which expanded the coverage and allowed the change for clerical and typographical of the registered sex in
the civil registry.

26
 In Republic v. Cagandahan, the Court properly exercised its judicial powers

as provided for in Sec. 1 Article VIII of the Philippine Constitution: “The Supreme

Court is vested with judicial power to settle actual controversies involving rights,

which are legally demandable and enforceable.” In order to settle the controversy

in the Cagandahan, the court must supply a gap in the law. The gaps in this case

are: how law treats the petition to change registered sex and as to its basis in

granting the petition.

Article 9 of the new Civil Code states that "No judge or court shall decline

to render judgment by reason of silence, obscurity or insufficiency of the laws."

Supported by Articles 11 and 12 of the Civil Code, which regulate customs,

jurisprudence must play a part in evolving the customary laws and integrating

them into the legal system provided that the custom must be proved as a fact,

according to the rules of evidence.54 The court in Cagandahan merely exercised its

power in supplying the gap in the law by interpreting the laws applicable to the

case, and in no way legislated (judge-made law) by allowing the change of

registered sex.

54
Ceasar Villanueva. Comparative Study of The Judicial Role and Its Effects on the Theory on Judicial
precedents in the Philippines Hybrid Legal System. 65 Phil. L.J. 61 (1990-1991) citing Tolentino, Civil Code of
the Philippines 41-42 (1984)

27
 A law established purely by jurisprudence would be a judge-made law, 55

which is not allowed in our government system that mandates separation of

powers, inasmuch as the sole function of our courts is to apply or interpret the

laws.56 But even as Philippine commentators deny the concept of judge made law,

they acknowledge the creative role of the Philippine judiciary. 57

Philippine civil

law commentator and member or the Code Commission, Arturo M. Tolentino

opined:58

“While a judge cannot create abstract rules of law, because

that would be an invasion of legislative power, he certainly can

formulate and declare the law as applied concretely to the case

before him. Courts are not limited to the automatic and mechanical

function of interpreting the law. They have, furthermore, a double

function: First, to fill the deficiencies of legislation and provide a

rule for the facts of a given case for which there is neither positive

provision of law nor established custom; and second, to adapt and

adjust rigid and inflexible provision of law, rendered inadequate

by time and circumstances, to the changing conditions of life and

society, so that the law may accomplish its social mission. Because

55
Judge made law is defined as “the legal doctrines established by judicial precedents rather than by a
statute wherein judge interprets a law in such a way to create a new law. They are also known as case law.
See Inc. US Legal, US Legal Judge Made Laws Law and Legal Definition, US Legal, Inc.,
https://definitions.uslegal.com/j/judge-made-laws/ (last visited Sep 30, 2017).
56
Villanueva. Supra note 5 At 60 Citing Tolentino, Civil Code of the Philippines 38 (1987)
57
Id. at 60 Citing Pascual, The Legal System of the Philippines. 7 (1970);
58
Id. at 60 Citing Tolentino, Civil Code of the Philippines 38 (1984)

28
 of this, jurisprudence must necessarily be flexible, capable of

receiving impressions from without, so that it can be an advance

guard in the equitable application of law and an active

instrumentality in the progressive development of the law.”

The Supreme Court gives utmost respect and primacy to legislative

enactments and in areas in which the legislature has laid down its policies,

judicial decisions can develop but are not confined within the legal framework

established by legislation. In areas or situations where there are legislative

lacunae (gap in the law) the judiciary in effect becomes the "lawmaker". Without

a gap in the law, judgment by the court expanding and exceeding from the

codified law amounts to judicial legislation (judge made law). This is engendered

by the general principles clauses in the Civil Code and other statutory

enactments, which allow greater discretion on the part of the judiciary to develop

the law.59

Therefore, the court in Republic vs. Cagandahan did not expand the

coverage of article 412, nor add to what was already intended by the legislature.

Article 412 of the Civil Code cover all entries in the civil registry and although

“sex” is not among the enumeration in Art. 408, in construing the all the above

mention articles of the Civil Code and Rule 108 of the Rules of Court, the court

determined that “sex” is intended by the legislature to be among the enumeration

59
Id. at 74

29
and that the change also applies to acts, events or factual errors that occur after

birth.60

A. The ruling in Republic vs.

Cagandahan remains applicable
and is not deemed nugatory,
since R.A. 10172 only applies to
clerical and typographical error.

The case of Republic vs. Cagandahan was promulgated on September 12,

2008 while R.A. 10172,61 which allows correcting clerical and typographical error,

was enacted on August 15, 2012. At the time of promulgation of the Cagandahan

case (2008) a person cannot change the registered sex through administrative

proceeding because the law in force was still R.A. 9048.62 The court even went to

the extent of supplying the gap in order to ascertain whether Cagandahan has a

right, being an intersex, to change the registered sex even if the event

contemplated—when condition fully developed—occurred after birth. Since prior

to such ruling, in Silverio v. Republic, the court ruled that the facts contemplated

under the law are those occurring at the time of birth.63

60
CAGANDAHAN supra
61
An act further authorizing the city or municipal civil registrar or the consul general to correct clerical or
typographical errors in the day and month in the date of birth or sex of a person appearing in the civil
register without need of a judicial order, amending for this purpose republic act numbered ninety forty-
eight. R.A. No. 10171 § 1 (2012)
62
An Act Authorizing The City Or Municipal Civil Registrar Or The Consul General To Correct A Clerical
Or Typographical Error In An Entry And/Or Change Of First Name Or Nickname In The Civil Register
Without Need Of A Judicial Order, Amending For This Purpose Articles 376 And 412 Of The Civil Code Of
The Philippines. R.A. No. 9048 § 1 (2001)
63
SILVERIO

30
 There is a need to emphasize that the right contemplated in the case of

Cagandahan cannot also be asserted in RA. 9048 as amended by R.A. 10172

because the latter only allows for correction of clerical and typographical errors,

which is defined as:

“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, mistake in the entry of day and month in

the date of birth or the sex of the person 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, or status of the petitioner.”64

This discussion is provided in order to illustrate that the current law (R.A.

10172) and the proposed law are not in any way contradictory and the former

does not render the latter nugatory. Being intersex, the change of a persons’ body

might be seen externally or it might not. Some Intersex individuals have a

condition that can only be ascertained internally through tests, such as

Karyotyping, hormonal test or even ultrasound. Therefore, a petition for change

of registered sex under R.A. 10172 only an intersex individual whose condition
64
Id. Sec. 2(3)

31
can be ascertained through visual examinations can be eligible. The law does not

apply similarly to an Intersex Individual with a condition that is purely dictated

by the chromosomes or hormones, which would need medical testing to

ascertain.

Furthermore, R.A. 10172 contemplates errors that are clerical or

typographical which existing records can prove. This will not apply to an Intersex

individual whose records prior to the petition for change are in fact true and

correct, as the person indeed posseses the sex indicated in the birth certificate

sought to be changed. Let’s take for example a person with Androgen

Insensitivity Syndrome (AIS), 65 who was born with XY Chromosomes (Male) with

internal Testes but looks entirely like a girl since the male reproductive organ did

not manifest upon birth. This person with AIS later on discovered, upon

maturity, that he is male but was registered female and wishes to change the

registered sex to male in order to reflect his true sex even if his physical

appearance is inclined to being a woman. R.A. 10172 then cannot apply to such

scenario since the recording of sex upon a child’s birth is based on the visual

physical examination and the physical examination conducted was correct in

saying that the child is physically female looking, but internally the person posses

XY Chromosomes and Internal Testes. This error cannot, therefore, be considered

as a mistake committed in the performance of clerical work, since it is not clerical

in nature and must be ascertained based on medical examinations and blood

65
See American Psychological Association, supra note 17. See Appendix A

32
drawing, which is beyond the ambit of the power granted to the administrative

agency authorized by R.A. 10172.

II. It is necessary to create and pass a law adopting the rules established in
Republic v. Cagandagan.

The principle of stare decisis enjoins adherence by lower courts to doctrinal

rules established by the Supreme Court in its final decisions. It is based on the

principle that once a question of law has been examined and decided, it should be

deemed settled and closed to further argument. 66 Basically, it is a bar to any

attempt to relitigate the same issues necessary for two simple reasons: economy

and stability.67 In our jurisdiction, the principle is entrenched in Article 8 of the

Civil Code.68

The rule regarding the applicability of stare decisis is discussed in the case of

Ting vs. Velez-Ting. 69

The case was between Benjamin Ting and Carmen Velez-

Ting wherein, after 18 years of marriage, Carmen went to court to have their

marriage be declared void on the ground that Benjamin was psychologically

66
Tings vs Velez-Ting G.R. No. 166562 (2009). Citing De Mesa v. Pepsi Cola Products Phils., Inc., G.R. Nos.
153063-70, August 19, 2005, 467 SCRA 433, 440.
67
Id. at 448
68
Art. 8 of the Civil Code provides in full: Judicial decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the Philippines.
69
Id.

33
incapacitated. In a motion for reconsideration of the case, Carmen argued that

the Molina70 guidelines should not be applied to this case since

the Molina decision was promulgated only on February 13, 1997, or more than

five years after she had filed her petition with the Regional Trial Court. She

claimed that the Molina ruling could not be made to apply retroactively, as it

would run counter to the principle of stare decisis. The Supreme Court in the case

of Ting discussed when the doctrine of stare decisis finds no application,

incorporating Chief Justice Reynato S. Punos’ discussion on the historical

development of this legal principle in his dissenting opinion in Lambino v.

Commission on Elections:71

“…[T]he court should (1) determine whether the rule has

proved to be intolerable simply in defying practical workability; (2)

consider whether the rule is subject to a kind of reliance that

would lend a special hardship to the consequences of overruling

and add inequity to the cost of repudiation; (3) determine whether

related principles of law have so far developed as to have the old

rule no more than a remnant of an abandoned doctrine; and, (4) find

out whether facts have so changed or come to be seen differently,

70
The Molina provides for the Set of Strict Standards in the Interpretation of Art 36 of the Famiy Code;
burden of proof to show the nullity of the marriage belongs to the plaintiff and there must be personal
evaluation by the psychologists . See Republic vs. CA and Molina, G.R. 108763 (1997)
71
See Ting vs Velez-Ting, supra note 66. citing the dissenting opinion of Justice Reynato Puno in Lambino v.
Commission on Elections G.R. Nos. 174153 and 174299, October 25, 2006, 505 SCRA 160. See also Planned
Parenthood vs. Casey 505 U.S. 833 (1992).

34
 as to have robbed the old rule of significant application or

justification.”

The doctrine of Stare Decisis cannot be applied to future cases following

Cagandahan since after the promulgation of the case (2009) a related principle of

law has developed, which is the enactment of R.A. 10172 (2012) expanding the

coverage on the change or correction of clerical and typographical errors to

include “sex.” The Court, now, is not prevented from ruling that certain intersex

conditions even may fall under R.A. 10172 and should be filed administratively

instead of in Court.

To illustrate, a hypothetical scenario is provided and will be used although

out this chapter discussion:

An Intersex child (Individual A) born with enlarged clitoris resembling a

penis72 registered as “male” in the birth certificate and later on, upon maturity,

said person wants to change the registered sex to “female” claiming that there

was merely an error in the writing of the “sex” in her birth certificate. If she is to

be physically examined, she would in all purports be visually female with an

enlarged clitoris then such error is clearly visible to the eye. It can therefore be

argued that this would find application in R.A. 10172.

72
Appendix A

35
 On the other hand An Intersex person (Individual B) with Androgen

Insensitivity Syndrome who is genetically male (XY chromosome) is resistant to

male hormones (called androgens). As a result, the person has some or all of the

physical traits of a woman, but the genetic makeup of a man. 73

Then, Individual

B cannot petition a change from “female” to “male” administratively under

R.A.10172 considering the condition cannot be ascertain visually and is not

obvious to the understanding, in this case, medical testing—Karyotyping through

blood letting—is required. So there is a need for the court to hear such petition

being considered as substantial, following the precedent of the Cagandahan case.

Both situations involve intersex individuals but in the first situation

Individual A can assert a change of registered sex under R.A. 10172, while in the

second situation Individual B cannot and must file a petition in court in

accordance with the case of Cagandahan. The latter can assert that the application

of R.A. 10172 violates his Constitutional right to Equal Protection. 74

The Equal protection Clause of the Philippine Constitution guarantees

legal equality of all persons before the law. However, such guarantee does not

deny to the state the inherent right to legislate carries with it the right to classify. 75

73
See American Psychological Association, supra note 17. See also discussion of this thesis on: A. The ruling
in Republic vs. Cagandahan remains applicable and is not deemed nugatory, since R.A. 10172 only applies to
clerical and typographical error.
74
Section 1, Article III of the 1987 Philippine Constitution provides that “(n)o 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 law.
75
Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, REX
Printing Company Inc., Quezon City (2009)

36
The case of People vs. Cayat76 summarized jurisprudence on equal protection

stating:

“It is an established principle of constitutional law that the

guaranty of the equal protection of the laws is not violated by a

legislation based on reasonable classification. (1) must rest on

substantial distinctions; (2) must be germane to the purposes of the

law; (3) must not be limited to existing conditions only; and (4) must

apply equally to all members of the same class.”

Applying the hypothetical illustration given, there is no reasonable

classification Between Individual A and B since both are intersex, however one

(Individual A) can assert her right under R.A.10172 while the other (Individual

B) cannot. Then, R.A. 10172 violates the equal protection clause because it cannot

apply to all members of the intersex community. The mere difference in intersex

condition cannot be considered a substantial distinction as to warrant a

reasonable classification.

Therefore it is necessary to pass a law because the law in stare decisis is

flexible as to allow the court discretion, in exercising such discretion, the court

may or may not grant the petition of intersex individuals, taking into

consideration the passing of R.A. 10172. Consequently, R.A. 10172 does not apply
76
G.R. No. L-45987 (1939)

37
equally in all cases of intersex conditions. If present situation subsist, some may

find application in R.A. 10172 but some may need to file a petition in Court

relying on the ruling of Cagandahan as precedent. Passing a law that would

incorporate the rules set in Cagandahan, respecting the unique biological nature

of being intersex and accommodating to all its spectrum, will then harmonize

current laws and jurisprudence so as to comply with the Equal protection Clause

of the Bill of Rights of the 1987 Philippine Constitution.

In line with the current global trend of recognizing diversity of individuals

in society, the Philippine legislature should enact a law that would recognize and

accommodate the unique conditions of being Intersex. In several international

statutes the current trend is the acknowledgement and the accommodation of

diverse groups of society in both cultural and legal aspects. 77 Australia allows the

change of registered sex in an administrative proceeding and treats it as a

registered “gender” instead of “sex.” It further allows “x” as a gender marker in

passports and official documents. However, some are also skeptical of allowing a

third gender classification because of its possible impact to other aspects of the

law, i.e. marriage, passport and other official documents. In one opinion by the

co-director of Global Action for Trans Equality, Mauro Cabral, indicated that:

77
Council Of Europe. Commissioner for Human Rights: Human rights and intersex people, Issue Paper
(September 22, 2017, 10:33 p.m.) https:/rm.coe.int./16806da5d4

38
 “[A]ny recognition outside the “F”/”M” dichotomy needs to be

adequately planned and executed with a human rights point of view,

noting that: ‘People tend to identify a third sex with freedom from the

gender binary, but that is not necessarily the case. If only trans and/or

intersex people can access that third category, or if they are compulsively

assigned a third sex, then the gender binary gets stronger, not weaker”78

In consideration of such fact, the law proposed in this study will not be

assigning a third gender or assigning both gender to one person, but rather a

framework to provide flexibility of the dichotomous classification under the law.

Considering the current status of laws and jurisprudence on marriage and family

relations, it is preferable to provide a framework for an intersex person to assert

the right to change or correct the registered sex, rather than assign as third sex

marker and such right shall be exercised through the court subject to minimum

evidence requirements.

A. The change of registered

sex shall be made in a
judicial proceeding as
provided in rule 108 of the
ROC and along with the
standard set in the
proposed law.

78
Id.

39
 The proposed law contemplates that the petition for change of sex shall be

made in a judicial proceeding, in accordance with article 412 of the New Civil

Code and applying the rules set in Rule 108 of the Rules of Court. This is to

follow the standards set by the Supreme Court in Republic v. Cagandahan as well

as to avoid deviating from the rules already established. Rule 108 of the Rules of

Court allows the state or other interested party to oppose the petition in order to

prevent the perpetuation of fraud in filing, since through a judicial proceeding,

the court can ascertain proper compliance of the law and the reliably of the

evidence presented.

A salient feature of the proposed law is that the Intersex Individual must

personally file the petition upon reaching the age of majority. The Philippine age

of Majority was lowered from 21 to 18 years old by R.A6809 79 that amended

article 234 of the Family Code 80 the “age of majority” is a requirement upon filing a

petition to change registered sex of the proposed law. The requirement of the age

of majority is also based on biological and scientific reasons taking into great

consideration the development of a person, which is known as puberty81:

79
An Act Lowering The Age Of Majority From Twenty-One To Eighteen Years, Amending For The
Purpose Executive Order Numbered Two Hundred Nine, And For Other Purposes. R.A. No. 6809 § 1 (1989)
80
Article 234 of the Family Code provides: Emancipation takes place by the attainment of majority. Unless
otherwise provided, majority commences at the age of eighteen years.”
81
Stanley J. Swierzewski, III, M.D, Sexual Development in Adolescents, Health Communities,
http://www.healthcommunities.com/sexual-development/puberty.shtml (last visited March 24, 2018)

40
 “Most sexual development occurs in late childhood and

adolescence. This period of rapid growth and development is called

puberty. Puberty involves physical growth and sexual maturation,

as well as psychological and social development. Puberty usually

begins between the ages of eight and 12 in girls and between the

ages of 10 and 14 in boys. In some cases, puberty does not occur

within the normal age range.”

The age of majority is used as the safest estimate as to the time when peak

of development occurs and is evident, taking into account for late puberty or

delayed puberty. The requirement is unqualified and also considers a married

intersex individual who petitions a change in registered sex subsequent to the

marriage. Being married does not disqualify the Intersex person under the

proposed law in consideration of the person’s right to privacy.

B. The person seeking to

change their registered sex
must first prove to be
biologically intersex and
the grant of change shall
likewise be based thereof.

The burden of proof is for the intersex individual to satisfactorily show to

the court that he/she is entitled to the relief prayed for. In accordance with

41
Republic v. Cagandahan82 there must be clear and convincing evidence in order

to overturn the prima facie evidence in the entries of the civil registrar. 83

In the case of Republic vs Cagandahan84 the Court acknowledged the current

state of Philippine statutes, which compels a person to be classified either as a

male or female. But the court also ruled that it is not controlled by appearances

when nature itself fundamentally negates such rigid classification. While the

importance conferred to sex as a classifier does not pose difficulties for most

people, it does create serious problems for those who do not neatly fit within the

“female”/”male” dichotomy. This is because society does not usually recognize a

person without reference to their sex, and as a result, intersex human rights is

especially affected by the current dichotomous confines of sex and gender. 85

People with intersex conditions generally don’t have to search for evidence

that they are intersex; the evidence is in their own bodies. For instance, women

who do not have ovaries, men who don’t have testes, women who have no

clitoris or inner labia, people who have ambiguous genitalia and other cases,

whether more internally complex or merely physical.86 For purposes of discussion

in relation to the proposed law, it is important to determine the specifics to

82
Cagandahan, supra note 26
83
The New Civil Code, Art. 410: The books making up the civil register and all documents relating thereto
shall be considered public documents and shall be prima facie evidence of the facts therein contained.
84
See Cagandahan, supra note 7

85
See Greenberg, supra note 16
86
Id. also see discussion in Chapter II of this paper.

42
ascertain if a person is indeed intersex upon birth and to determine, upon

maturity, that there exist a dominant trait either leaning more on male or female.

Courts in international cases use three factors to determine a person’s true

sex: chromosomal pattern, gonadal sex, and genitalia.87Modern medical

technology can be availed of to examine the said factors for purposes of proving

that a person is indeed intersex and even upon maturity to determine dominant

traits as well. An ultrasound can locate a uterus behind the bladder and can

determine if there is a cervix or uterine canal. Blood tests can check the levels of

sex hormones in the person’s blood, and chromosome analysis (called

karyotyping) can determine sex. Explorative surgery or biopsy of reproductive

tissue may also be undertaken, if necessary.88

The necessity of asserting such fact also springs from the difference in

treatment under the Cagandahan case and that of Silverio. In Silverio v. Republic89

the court ruled that:

“[N]o law allows the change of entry in the birth certificate as

to sex on the ground of sex reassignment…and under the civil

register law, a birth certificate is a historical record of the facts as

87
Id.
88
Children’s Health. INTERSEX STATES (September 28, 2016, 12:22 a.m.)
http://www.healthofchildren.com/I-K/Intersex-States.html
89
Rommel Jacinto Dantes Silverio vs. Republic of the Philippines. G.R. No. 174689 (2007)

43
 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.”

The difference now arises from the fact that in Cagandahan the court

recognizes that there is an error upon determination of the person’s sex and that

the acts, events or factual errors contemplated under Article 407 of the Civil Code

include even those that occur after birth.90 Unlike in the case of Silverio,

Cagandahan did not undergo sex reassignment, since being intersex the

supervening biological change from female to male was purely natural.91

Therefore, the court acknowledged the “unordinary” state of Cagandahan and

ruled in favor of the latter, allowing a change of registered sex although the

indicators of the person sex occurred during a supervening event that developed

over a period of time after birth.92

Another important aspect to consider is the development of the intersex

person’s dominant trait shall be due to natural biological change. The operative

word in the proposed law, therefore, is natural. Before the court can grant a
90
Cagandahan, supra note 26
91
Id.
92
Id.

44
change in registered sex, it is essential to ascertain that the person did not

willfully undergo any unnatural steps to force the body into the categorical

mold of the sex to be registered. Unnatural steps contemplated are medical

surgery and hormonal therapy to force body to conform to a specific mold of sex.

The Supreme Court based its decision on Cagandahan’s biological condition of

being an intersex person who has CAH, which is the reason that Cagandahan’s

body naturally developed overtime from female into having dominant male

characteristics.93

Along with the biological aspect, the court also relied on the expert opinion of

a psychiatrist to ascertain the state of mind of Cagandahan to determine that the

latter has made up his mind, adjusted to the chosen role, as male and the change

would be advantageous to the person. Being biologically or naturally intersex the

determining factor in his gender classification would be what the individual,

having reached the age of majority, with good reason think of his/her sex along

with preponderant biological support.94 The Court stressed that Cagandahan

simply let nature take its course and has not taken any unnatural steps to

interfere with what he was born with. 95

93
See Cagandahan, supra note 26
94
Id.
95
Id.

45
III. Intersex Individuals’ Right to Privacy, in view of liberty, protected by the

Due Process Clause

When it comes to interpreting the Philippine Constitution, the Judiciary is

no stranger to looking into the decisions of the United States Court for guidance.

Consequently, to determine the right of an intersex individual under the

Philippine law, a reading of the Philippine constitution in relation to the U.S.

fourteenth amendment is made as a reference in the subsequent discussion. The

case of Smith, Bell & Co. vs Natividad96 held that:

“The guaranties extended by the Congress of the United

States to the Philippine Islands have been used in the same sense

as like provisions found in the United States Constitution. While

the "due process of law and equal protection of the laws" clause of

the Philippine Bill of Rights is couched in slightly different words

than the corresponding clause of the Fourteenth Amendment to

the United States Constitution, the first should be interpreted and

given the same force and effect as the latter.”

96
G.R. No. 15574 (1919)

46
 The Right to Privacy, although not expressly mentioned under the

Philippine Constitution, is enshrined in Section 1, Article III, The Bill of Rights of

the 1985 Constitution:

“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.”

According to Fr. Bernas “The clause must be understood to guarantee not

just forms of procedure but also the very substance of life, liberty and property.

The due process clause must be interpreted both as procedural and as substantive

guarantee. It must be a guarantee against the exercise of arbitrary power even

when the power is exercised according to proper forms and procedure.” 97

Similarities can be drawn with the ruling, regarding the Due Process Clause of the

Fourteenth Amendment, in the case of Planned Parenthood vs. Casey98 stating:

“[T]he controlling word in the case before us is "liberty."

Although a literal reading of the Clause might suggest that it

governs only the procedures by which a State may deprive persons

of liberty…the Clause has been understood to contain a substantive

97
Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, REX
Printing Company Inc., Quezon City, 2009
98
505 U.S. 833 (1992). See also Nelrose B. Uy, He is She, She is He: Creating Gender Markers of Filipino
Transexuals. (2016)

47
 component as well, one ‘barring certain government actions

regardless of the fairness of the procedures used to implement

them."

The right to privacy, although not explicitly mentioned under both

Philippine and United States Constitution, has been recognized. United States’

Court decisions make it clear that only personal rights that can be deemed

fundamental or implicit in the concept of ordered liberty are included in the

guarantee of personal privacy.99

The discussion herein of Roe vs. Wade is made not in the context of abortion

but rather, the nature of ones personal choices on what to do with his own person

or body. Roe vs. Wade, involves Jane Roe, a single pregnant woman, wanted to

terminate her pregnancy through abortion but was unable to because her

pregnancy did not threaten her life to warrant an abortion according to Texas

laws. She then filed an action challenging such law, alleging that the latter

abridged her right of personal privacy protected by the Fourteenth Amendment.

100
Discussed in this case is the Right of Personal Privacy in relation to the concept

of Liberty protected by the Due Process Clause, wherein the U.S. Supreme court

ruled that:

99
Roe et. Al vs. Wade, 410 U.S. 113 (1973)
100
Id.

48
 “[W]here certain "fundamental rights" are involved, the

Court has held that regulation limiting these rights may be justified

only by a ‘compelling state interest’ and that legislative enactments

must be narrowly drawn to express only the legitimate state

interests at stake.”101

In a later case that challenged the ruling in Roe vs. Wade, Planned Parenthood

vs. Casey,102 the Supreme Court affirmed the definition of liberty as it relates to

personal choices, stating therein:

“These matters, involving the most intimate and personal

choices a person may make in a lifetime, choices central to personal

dignity and autonomy, are central to the liberty protected by the

Fourteenth Amendment. At the heart of liberty is the right to define

one's own concept of existence, of meaning, of the universe, and of

the mystery of human life. Beliefs about these matters could not

define the attributes of personhood were they formed under

compulsion of the State.”

The right to privacy in relation to liberty, protected in the Due Process

Clause is further reinforced in the recent landmark case of Obergefell, et.al. vs.

101
Id. Citing Kramer v. Union Free School District, 395 U. S. 621, 627 (1969); Shapiro v. Thompson, 394 U. S. 618,
634 (1969), Sherbert v. Verner, 374 U. S. 398, 406 (1963) Griswold v. Connecticut, 381 U.S. at 485
102
See supra note 2

49
Hodges.103 Same-sex couples, James Obergefell and James Arthur, decided to

marry in Maryland where same-sex marriage was legal. Upon Arthur’s death, the

home state of the couple (Ohio) refused to Obergefell as Arthur’s spouse in the

death certificate. Similarly situated couples sued separately the states of

Michigan, Kentucky, Ohio, and Tennessee, alleging violations of their rights

under the Fourteenth Amendment. Upon appeal, the Court of Appeals

consolidated the cases and reversed, holding that states were under no

constitutional duty to license or recognize same-sex marriages. 104

The Supreme

Court then held that the same-sex couples may exercise the fundamental right to

marry in all states. In its decision the court declared:

“The Constitution promises liberty to all within its reach, a

liberty that includes certain specific rights that allow persons,

within a lawful realm, to define and express their identity…[t]he

fundamental liberties protected by the Fourteenth Amendment’s Due

Process Clause extend to certain personal choices central to

individual dignity and autonomy, including intimate choices

defining personal identity and beliefs.”105

Therefore, it is the choice of an intersex individual to change the registered

sex in the civil registry to express their true identity, by virtue of ones right to
103
Obergefell, et. Al. vs. Hodges, 576 US ___(2015)
104
Id.
105
Id. citing See, e.g., Eisenstadt v. Baird, 405 U. S. 438 ; Griswold v. Connecticut, 381 U. S. 479 –486. 

50
privacy in relation to ones liberty, protected by the due process clause of the

Philippine Constitution. The proposed law in this case, merely honors and

bolsters said Constitutional right of an intersex person. Respecting an intersex

individuals’ unique condition, its private nature and their capability to decide for

their own body. The purpose of the proposed law is to allow the person, who is

fully capable upon maturity, to determine for one’s self his/her proper and true

sex marker without pressure or compulsion from any outside force. Honoring the

ruling of the Court in Cagandahan106 that: “to him (intersex person) belongs the

human right to the pursuit of happiness and of health”

A. The choice to change the

registered sex is a personal
liberty of the intersex
individual. The state,
therefore, shall not
interfere with such choice
absent any compelling
state interest.

Personal liberty as protected by the due process clause is a realm, which

the government may not enter without compelling state interest. Consequently,

following the previous discussion; the right to change ones registered sex carries

with it the right not to change. The state cannot, therefore, require an intersex

person to divulge and change the registered sex, absent any compelling state
106
Cagandahan

51
interest or a clear and present danger. The court defined compelling state interest

test in the case of Imbong vs. Ochoa.107

“A test that would protect the interests of the state in

preventing a substantive evil, whether immediate or delayed, is

therefore necessary… As held in Sherbert, only the gravest abuses,

endangering paramount interests can limit this fundamental right. A

mere balancing of interests which balances a right with just a

colorable state interest is therefore not appropriate.”

While the case of Chavez vs. Gonzalez 108 discussed the clear and present

danger test regarding constitutionality of government imposing prior restraint on

categories of unprotected expression, that “the expression restrained must

present a clear and present danger of bringing a substantive evil that the state has

a right and duty to prevent and such danger must be grave and imminent.” 109

107
G.R. No. 204819 (2014)
108
Chavez vs. Gonzalez, G.R. No. 168338 (2008). The case involves the airing of the “Hello Garci Tapes.” The
NTC issued a press release warning radio and television stations that airing the Garci Tapes is a ” cause for
the suspension, revocation and/or cancellation of the licenses or authorizations” The Court ruled The public
airing of the Garci Tapes is a protected expression because it does not fall under any of the four existing
categories of unprotected expression recognized in this jurisdiction.
109
Id. “Restraints on freedom of speech and expression are evaluated by either or a combination of three
tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational
connection has been established between the speech restrained and the danger contemplated; (b)
the balancing of interests tests, used as a standard when courts need to balance conflicting social values and
individual interests, and requires a conscious and detailed consideration of the interplay of interests
observable in a given situation of type of situation; (c) the clear and present danger rule, which rests on the
premise that speech may be restrained because there is substantial danger that the speech will likely lead to
an evil the government has a right to prevent. This rule requires that the evil consequences sought to be
prevented must be substantive, extremely serious and the degree of imminence extremely high.”

52
 Under the two tests, the state cannot intrude into a person’s right to

privacy. There is no compelling state interest involved that would justify

intrusion in both scenarios when (1) an intersex individual petitions to change or;

(2) refuses not to change the registered sex.

In the first scenario, where an intersex person petitions to change his/her

registered sex, there is no compelling state interest that would endanger the

institution of marriage. In Silverio vs. Republic, the Court concerns itself to the

change of registered sex by a transgender, explaining, “[a] person’s sex is an

essential factor to marriage and family relations.” 110 There are wide-ranging legal

and political policy consequences if a transgender is allowed to petition a change

the petition is allowed a change of registered sex due to surgery where:

“[T]o grant the changes sought by petitioner will substantially

reconfigure and greatly alter the laws on marriage and family

relations. It will allow the union of a man with another man who has

undergone sex reassignment (a male-to-female post-operative

transsexual). “111

However, the said ruling will not apply to intersex individuals, as even the

Court recognized in the Cagandahan case, there is a substantial difference between

110
Silverio
111
Id.

53
a transgender and an intersex person. 112 The latter have both male and female

characteristics while the former conforms to the dichotomous classification of

sex.113 The choice of an intersex individual of the sex to be registered, supported

by dominant traits, does not endanger the social institution of marriage. In a

discussion by Oscar Franklin Tan in the Philippine Law Journal, he argued that:

“The Philippine Family Code prescribes that marriage must

be celebrated between a man and a woman, but one notes that the

Constitution makes no such qualification. The ability to engage in

male-female copulation likewise cannot be a classification, because

it is not a requisite in the Philippine Family Code, and, further,

impotence is merely a ground for annulment. 114 For the same

reason, the ability to procreate is not a requisite for marriage, and

even the aged and infertile are allowed to take vows. This is, in

fact, an increasingly diminished concern given advances in

reproductive technology and acceptance of adoption.” 115

The unique nature of being intersex, whether or not able to copulate and

procreate, did not violate or even jeopardize the already established rules on

marriage in society and may continue to function and take on the role of either

112
Cagandahan, supra note 26
113
Id.
114
Oscar Franklin Tan, 82 Phil L. J. 78 (2007-2008) citing Ople v. Torres G.R. No. 127685, 293 SCRA 143, 158,
Jul. 23, 1998
115
G.R. No. 174689, Oct. 22, 2007.

54
sex retained or to be registered. To take on either role is within the sole discretion

of the intersex person and he/she cannot be compelled by the state to correct his

or her registered sex, otherwise it would be a unreasonable intrusion of his/her

right to privacy.

There is also no compelling state interest in the second scenario presented;

when an intersex individual refuses to change his/her registered sex. In such

case, the state also cannot intrude into a persons’ privacy and compel him/her to

change the registered sex by reason of the intersex condition. In the case of the

athletes, Caster Semenya and Dutee Chand 116, where the International

Association for Athletics Federations (IAAF) demanded Caster Semenya to take a

gender test and impose a limit on the levels of testosterone a person could have in

their body and be able to compete in women’s events. 117 Taking the incident an

example, the issue now posed is whether the state can compel, an intersex

individual to correct his/her registered sex? The answer is still in the negative.

Following the line of reasoning in prior discussions, there is no compelling state

interest that would justify state intrusion even in the field of sports competition.

Even the Constitutional Court of South Africa acknowledged the Right to

Privacy, ruling in Nat’l Coalition for Gay & Lesbian Equality v Minister of Justice118

116
See Reiss Smith, supra note 41, at p.20. Dicussing the case of Caster Semenya and Dutee Chand in the
Review of Related Literature.
117
Semenya told to take gender test, BBC News (September 30, 2017 2:33 a.m.),
http://news.bbc.co.uk/sport2/hi/athletics/8210471.stm
118
(1) S.A. 6 (S. Afr.) (1999)

55
 “Privacy recognizes that we all have a right to a sphere of private

intimacy and autonomy which allows us to establish and nurture human

relationships without interference from the outside community. The way in

which we give expression to our sexuality is at the core of this area of

private intimacy. If, in expressing our sexuality, we act consensually

and without harming one another, invasion of that precinct will be a

breach of our privacy.”119

There is no harm or substantial evil to be prevented in the case at bar that

would justify state intrusion on the privacy of an intersex individual competing

in sports. The Intersex athlete does not cause any harm by refusing to change

his/her registered sex, although by reason of the unique condition his/her

physical trait might be different from the others, such difference is not substantial

and duly supported to warrant state intrusion. In order for the state to compel the

intersex individual to change his/her registered sex, it is the burden of the

government to show that the intrusion is justified by some compelling state

interest and that is narrowly drawn; 120 a mere difference in physical trait of

athletes in the field of sports is not one of those reason. In fact, the Court of

Arbitration in Sports (CAS) in its July 27, 2015 ruling said that there was no clear

119
see Tan, supra note 77 citing Nat’l Coalition for Gay & Lesbian Equality v Minister of Justice, (1999) (1)
S.A. 6 (S. Afr.)
120
Id. Tan citing Ople v. Torres G.R. No. 127685, 293 SCRA 143, 158, Jul. 23, 1998

56
evidence that an intersex individual might have benefited from her condition of

having enhanced testosterone levels than others.121

Therefore, in both filing for a petition to change and the refusal to change

the registered sex, the intersex individuals’ right to privacy, in relation to liberty

as protected by the due process clause cannot be encroached upon by the state

because there is compelling state interest in the matter. As properly held in

Cagandahan122:

“[T]he Court will not dictate on respondent concerning a

matter so innately private as ones sexuality and lifestyle

preferences, much less on whether or not to undergo medical

treatment to reverse the male tendency due to CAH (Intersex

condition)…the Court gives respect to (1) the diversity of nature;

and (2) how an individual deals with what nature has handed

out.”

B. The change of registered sex

shall not affect the validity
of marriage contracted prior
to the petition.

The change in registered sex of an intersex individual is not an ipso facto

ground for a Declaration of Absolute Nullity of Marriage. For marriage to be

121
See Reiss Smith, supra note 41
122
CAGANDAHAN

57
considered void ab initio under Article 35 of the Family Code123 the ground(s) must

exist at the time of celebration of marriage. Therefore, in the case of an intersex

individual, at the time of the celebration of marriage the qualification of sex

imposed under the family code are duly met. There is no violation to Article 1 of

the Family Code, which provides:

“Marriage is a special contract of permanent union between

a man and a woman entered into in accordance with law for the

establishment of conjugal and family life. It is the foundation of the

family and an inviolable social institution whose nature,

consequences, and incidents are governed by law and not subject

to stipulation, except that marriage settlements may fix the

property relations during the marriage within the limits provided

by this Code.”124

Being Intersex upon birth, said person has both male and female

characteristics. The registered sex, during the celebration, was true but by reason

of the condition the non-registered “sex” developed to be dominant than the

registered “sex.” As to the time as to when such development may occur, no

definite medical estimate is provided and may even vary between earlier or later

than the age of maturity. Then, there is no violation to the qualification because

123
The Family Code of the Philippines, E.O. No. 209 § 1 (1987)
124
The Family Code of the Philippines, E.O. No. 209 § 1 (1987)

58
during the celebration of marriage, the person was indeed registered as the sex

sought to be unionized. Upon celebration of the marriage the intersex person is

registered and for all intents and purposes was recognized as male prior to the

change, therefore duly qualified to marry a female. The situation may apply vice

versa.

To be able to file for a petition of Declaration of Absolute Nullity of Void

Marriages based on the ground of Psychological incapacity under Article 36 of

the Family Code, there must be a showing that either or both parties were

psychologically incapacitated from complying with the essential marital

obligations of marriages at the time of celebration of marriage even if such

incapacity becomes manifest only after its celebration. 125 According to Tolentino

the physcological basis for making marriage void ab initio under article 36 is the

incapacity to understand the essential marital obligations, because this would

amount to lack of consent to the marriage and not the incapacity to comply with

the essential marital obligation.126 Being Intersex does not automatically mean

that a person is psychologically incapacitated, consistent with the premise of the

thesis, being intersex is heavily dependent of the biological factors rather than

psychological. There is no presumption of Psychological incapacity by mere fact

that a person is Intersex. In a petition for declaration of nullity, petitioner must

still prove that an Intersex person is mentally incapacitated to perform the

125
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, A. M.
No. 02-11-10-SC § 2 (2003)
126
Arturo M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines 1(1987).

59
essential obligations of marriage, just like any other non-intersex individual.

Applying the ruling in Santos vs. Court of Appeals:

“Psychological incapacity should refer to no less than a

mental not physical incapacity that causes a party to be truly in

cognitive of the basic marital covenants that concomitantly must

be assumed and discharged by the parties to the marriage, which

include their mutual obligations to live together, observe love,

respect and fidelity and render help and support. The intendment

of the law has been to confine the meaning of Psychological

incapacity to the most serious cases of personality disorders clearly

demonstrative of an utter insensitivity or inability to give meaning

and significance to the marriage.”127

The change of registered sex by reason of being intersex is also not a

ground under Article 45 of the Family code that warrants the Annulment of

Voidable Marriages. Being intersex does not ipso facto mean that a person is

physically incapable of consummating the marriage. In order for Physical

incapacity to be ground for annulment the following circumstances must occur:

“(1) that incapacity exist at the time of celebration of

marriage; (2) that such incapacity continues to the time when the
127
204 SCRA 20 (1995)

60
 case of annulment is being tried, (3) that it appears to be incurable.

And (4) it must be unknown to the other contracting party” 128

There must still be a proving that the above requisites concur, just like any

other case, intersex or not. Therefore the change of registered sex of an intersex

person is not retroactive as to affect the validity of a prior contracted marriage.

Intersexuality, ipso facto, is not a sufficient ground for both Declaration of

Absolute Nullity of Marriage and Annulment of Voidable Marriage.

As for the effect of the change of registered sex in the rule on legal

separation under Article 55 of the Family Code, there is no conflict. The settled

rules and jurisprudence that applies to the petition for legal separation remains

undisturbed and is not inconsistent with the premise and proposed law.

Intersexuality, ipso facto, is not considered as homosexuality as discussed in prior

chapters; therefore normal rules will apply despite the change of registered sex.

The grounds under Article 55 of the Family code can be reasons for legal

separation only when they come to exist after the celebration of marriage. If the

defect existed at the time of marriage, but had been ratified by continued

cohabitation or action to annul has prescribed, then legal separation does not

apply. There would either be Condonation or prescription. 129

128
Id. at 292
129
Id. at 320

61
C. The determination sex
is, being personal; it
shall not be subject to
Parental authority.

In line with the concept that the Constitution protects the liberty to define

and express true identity, an Intersex person’s personal choice to change the

registered sex in the civil registry must be respected and may not be invaded by

the state or any individual without compelling reason. 130 Central to individual

dignity and autonomy is the choice to define personal identity. In order for an

Intersex child to properly exercise the right to define ones’ own identity, upon

maturity, no person must interfere in his/her behalf prior such time. The child’s

parent(s), although given the parental authority to decide for the child, must also

exercise such authority in line with this concept. Article 209 of the Family

code131, defines parental authority as:

“…[T]he natural right and duty of parents over the person and

property of their unemancipated children, parental authority and

responsibility shall include the caring for and rearing them for civic

consciousness and efficiency and the development of their moral,

mental and physical character and well-being.”

130
See Obergefell, supra note 104
131
The Family Code of the Philippines. Article 209, Parental Authority

62
 Essentially, it is well within parental authority to give consent to doctor’s

suggestion to or even initiate for surgery or any medical procedure to ones ward,

provided that the medical procedure is decided in contemplation of the child’s

well being. Currently, there is no law in the Philippines that limits the parental

authority in matters relating to an intersex child, or any child, undergoing

corrective medical procedure. In line with the argument presented in prior

discussions and the mandates of International conventions, there must be a limit

to the authority of parents to decide for an intersex child to undergo corrective

surgery.

The Convention on Rights of Children, 132

which the Philippines is a

signatory, call on governments to:

“[G]uarantee the rights of children to bodily integrity,

autonomy and self-determination, and provide families with

intersex children with adequate counseling and support.”

Further providing…

“The Committee on the Elimination of all forms of

Discrimination Against Women, which calls on states parties to:

‘ensure that no-one is subjected to unnecessary medical or surgical

treatment during infancy or childhood, guarantee bodily integrity,

132
Joint general recommendation No. 31 of the United Nations Committee on the Elimination of
Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child on
harmful practices, CEDAW/C/GC/31-CRC/C/GC/18

63
 autonomy and self-determination to children concerned, and

provide families with intersex children with adequate counseling

and support.”133

Yogyakarta Principle 18, also call for states to:

“[T]ake all necessary legislative, administrative and other

measures to ensure that no child’s body is irreversibly altered by

medical procedures in an attempt to impose a gender identity

without the full, free and informed consent of the child in

accordance with the age and maturity of the child and guided by

the principle that in all actions concerning children, the best

interests of the child shall be a primary consideration.” 134

Respecting International law and principles and an intersex child’s right to

define ones own identity, the proposed law postulates that parental authority must

not violate such right. Parents or Guardians, by reason of the proposed law, cannot

therefore determine for the intersex child to undergo medical procedures that

would permanently affect their intersex condition. To preserve the child’s dignity

and autonomy, the latter must be given an opportunity to grow as an intersex

without suffering the consequences of a gender mutilating medical procedure. The

133
Id.
134
The Yogyakarta Principles on The Application of International Human Rights Law in relation to Sexual
Orientation and Gender Identity, http://www.yogyakartaprinciples.org/

64
proposed law vests the right to determine ones sex purely to the intersex person, in

effect limiting parental authority. Medical procedures made to an intersex child,

decided by the parents are considered as acts beyond parental authority and should

not be prejudicial the child and his/her right to change the registered sex. The

intersex child can assert damages135 against the parent for subjecting him or her to

early medical intervention affecting the natural intersex condition.

135
See Article 19, Human Relations, The New Civil Code, providing: Every person must, in the exercise of
his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty
and good faith.

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 CHAPTER IV

CONCLUSION

In recognizing Intersex individuals and the unique condition they are in,

the law must also accommodate with compassion such extraordinary nature. The

Supreme Court, in Republic v. Cagandahan validly supplied a gap in the law.

Jurisprudence suggests that in areas in which the legislature has laid down its

policies, judicial decisions can develop, but are not confined, within the legal

framework established by legislation. But in areas or situations when there are

legislative lacunae (gap in the law) the judiciary in effect becomes the

"lawmaker". This is engendered by the general principles clauses in the Civil

Code and other statutory enactments, which allow greater discretion on the part

of the judiciary to develop the law. Under the concept of intent or spirit of the law

(anima legis), the Court validly supplied the gap in the law, that in petition to

change the registered sex the acts, events and factual errors applies also to those

that occur after birth. As compared to the ruling in Silverio v. Republic wherein the

Court ruled that acts, events and factual errors contemplated in petition for

change only applies to those that occurred at the time of birth. In the passage of

RA 10172, the rule in Cagandahan is still considered to be good law, since the two

concerns two different things. The former involves an administrative proceeding

for change or correction of registered sex by reason of clerical or typographical

error, while the latter is through a court proceeding involving substantial change

in the entry of sex.

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 Time and time again, the Supreme Court referred to the principle of stare

decisis and accepted its applicability in Philippine jurisdiction. But it is still

important to note the courts cannot legislate but merely supply and interpret. A

law established purely by jurisprudence would be a judge-made law, which is

not allowed in our governmental system that mandates separation of powers,

inasmuch as the sole 'function of our courts is to apply or interpret the laws.

Considering that the Supreme Court is not bound to follow the rigid rule on

precedents and may abandon a doctrine upon its determination, the doctrine

established in Republic v. Cagandahan, in a way grants a substantial right to

intersex individuals to change their registered sex, may be deviated upon by the

Supreme Court and the latter is in no way bound to rule in the same manner in

future cases expanding or even restricting evidentiary matters. Thus, proving that

there is a need for congress to enact a law codifying the standards set in the

Cagandahan case to serve as a steady guide for future petitioners.

The ruling Cagadahan shall serve as a guide in setting forth standards for a

petition to change the registered sex of an intersex person. The two significant

substantial requisites as basis for the change are: (1) The choice of the intersex

individual to petition for a change or registered sex and (2) the sufficient

biological support for such choice. The first requisite is grounded upon the

decisional privacy emerging from the penumbra of the bill of rights. 136 The second

requisite is the affirmation of the ruling made by the Supreme Court in Republic

136
Oscar Franklin Tan, 82 Phil L. J. 78 (2007-2008) citing Ople v. Torres G.R. No. 127685, 293 SCRA 143, 158,
Jul. 23, 1998

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vs. Cagandahan. The proposed law recognizes the right of the intersex individual

to initiate the change of registered sex in the civil registry; this is in line with the

latters right to privacy in accordance with justice and equity. Consequently, in

line with such reasoning and discussion, absent any compelling state interest, the

state cannot intrude to a person right to privacy. To take on either gender role is

within the sole discretion of the intersex person and the latter cannot be

compelled by the state to correct his or her registered sex, if one does not chose to

do so, otherwise it would be a unreasonable intrusion of his/her right to privacy.

Therefore, the petition to change the registered sex, as discussed in prior

chapters, shall be made in a judicial proceeding in line with the ruling made in

Cagadahan. This is also to avoid the perpetuation of fraud in filing, since through

a judicial proceeding; the court can ascertain the reliability of the evidence

presented. The burden of proof is for the intersex individual to satisfactorily

show to the court that he/she is entitled to the relief prayed for. In accordance

with Republic v. Cagandahan137 there must be clear and convincing evidence in

order to overturn the prima facie evidence in the entries of the civil registrar. 138 It is

also important to note that the qualification set in the law is that intersex

individual must file personally upon reaching the age of majority. Following the

black letter of R.A. 6809 that amended art. 234 of the Family code, along with the

goal of deterrent of early surgery; the “age of majority” is a requirement upon

filing a petition to change registered sex of the proposed law. Further, the

137
Cagandahan, supra note 26
138
The New Civil Code, Art. 410 “The books making up the civil register and all documents relating thereto
shall be considered public documents and shall be prima facie evidence of the facts therein contained.”

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proposed law contemplates the fact of marriage or being married prior to the

petition for the change of registered sex does not bar the intersex person, there

being no violation to the qualification of marriage set in the Family Code. During

the celebration of marriage, the person is indeed registered as the sex sought to be

unionized, in other words upon celebration of the marriage the intersex person is

validly registered as male married a female, or vice versa.

UNEDITED

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 CHAPTER V

RECOMMENDATION

Herein provided below the proposed law, incorporating therein the ruling in

Republic v. Cagandahan, along with Rule 108 of the Rules of Court and following

the discussion of previous chapters.

The Proposed Bill should be read as:

AN ACT ALLOWING INTERSEX INDIVIDUALS TO CHANGE THE ENTRY

OF SEX APPEARING IN THE CIVIL REGISTRAR

SECTION 1. AUTHORITY TO CHANGE REGISTERED SEX OF AN INTERSEX

PERSON- Any Intersex person of legal age may file a verified petition, which

shall set forth facts sufficient to establish a biological support, for the change of

the entry of sex in the civil register. Provided, that the person has not taken any

unnatural step to force body into the categorical mold of the sex to be registered.

The verified petition shall be filed with the Regional Trial Court of the province

where the corresponding civil registry is located.

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

mean:

(1) Intersex person- a person born with both male and female characteristics

upon birth. An individual who does not fit to the binary system of

classification of a person’s sex. It is a state of a living specie whose sex,

chromosomes, genitalia, and/or secondary sex characteristics are

determined to be neither exclusively male nor female.

SECTION 3. Form and Contents of the Petition- The petition for change of

registered sex of an Intersex person shall be in the form of an affidavit, subscribed

and sworn to before any person authorized by law to administer oaths. The

affidavit shall set forth facts necessary to establish the merits of the petition and

shall show affirmatively that the petitioner is competent to testify to the matters

stated. It must be accompanied by a medical certificate issued by an accredited

government physician attesting to the fact that Petitioner’s change is the

dominant sex and is due to natural development. Provided, stating in the same

medical certificate, that the person seeking the change has not taken any

unnatural step to force the body into the categorical mole of the sex to be

registered. Provided, however, that the intersex individual is not precluded from

providing additional evidence to support the change of registered sex such as

other medical evidence, including expert opinions.

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SECTION 4. Court Mandated Counseling- there shall be a court mandated

psychological evaluation and counseling, upon sufficient finding of the intersex

person’s biological condition have developed naturally and without forced

medical intervention, before the court can grant the petition for change of

registered sex.

SECTION 5. Grounds for Change of First Name or Nickname of intersex

individual- upon granting the petition to change registered sex, the court shall

allow the change of in the registered first name or nickname of the intersex

individual.

SECTION 6. The procedures set forth in Rule 108 of The Rules of Court shall be

followed unless contrary to those provided herein.

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REQUISITES OF THE PROPOSED STATUTE:

I. The Change of registered sex shall vest all the rights of the newly
registered sex and the decree shall apply prospectively.

Discussion on the prospective application, therefore by indicating a

prospective effect the prior marriage will not be affected by the change. The
cancelled birth certificate prior to the decree was considered valid up until
the change.

I. That petitioner is of legal age and personally filed the petition

The goal of providing this requisite is to be able to provide protection and

option through this law, that a child, upon formative years, does not need to be

subjected to the rigid classification of male and female. The requisite is also in

consideration of the fact that it may be premature to ask for a change while the

body is still developing during puberty 139. Setting the qualification to legal age is

safer in order to ascertain more or less that a person has developed. To be given a

choice to change their registered sex in accordance with the proposed law

personally upon reaching the age of maturity and most importantly upon their

own volition. The Philippine age of Majority was lowered from 21 to 18 years old

by R.A6809140 that amended article 234 of the Family Code, which provides:

"Emancipation takes place by the attainment of majority. Unless otherwise

provided, majority commences at the age of eighteen years.” Thus, following the

black letter of the law along with the goal of deterring early surgery and

recognizing intersex individuals, the “age of majority” requirement upon filing a

139
Kenneth W. Jones, Smith's Recognizable Patterns of Human Malformation. (2006). 
140
An Act Lowering The Age Of Majority From Twenty-One To Eighteen Years, Amending For The
Purpose Executive Order Numbered Two Hundred Nine, And For Other Purposes. R.A. No. 6809 § 1 (1989)

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petition to change registered sex if deem best suited standard for the proposed

law.

II. There must be sufficient proving of the petitioners’ intersex status

The court shall entertain a petition to change the registered sex by first

ascertaining that the petitioner is intersex. This rule is grounded upon the fact

that the proposed law intends that such right is exclusive and is only available for

intersex individual in order to avoid confusion and ambiguity in the application

in the future. Thus, it is therefore contemplated that before the court grant the

petition to change the registered sex, the latter must first ascertain the sufficiency

of the petition founded on the fact of intersexuality.

III. The choice of sex has sufficient biological support

Once court has taken cognizance over the petition to change the registered

sex of the intersex individual and from the affidavit of the latter, there is an

indication of the desired change from the current to the choice of the petitioner

(male to female, female to male). There must be a proof in court of the facts and

circumstances that the choice of sex is sufficiently supported biologically and

indicates a dominant trait or even incites reasonable conclusion that the sex to be

registered has developed to be more recognizable than the other. The

supervening change that occurred after birth must have developed naturally and

the choice of sex to be registered is in accordance with the current state of the

individuals’ body. Testimonial and documentary evidence of expert medical

personnel shall be allowed to further bolster the required medical certification.

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This rule is adopted in the proposed law in relation to the ruling of the Supreme

Court in Republic vs. Cagandahan as discussed in the prior chapter. The proposed

law, by setting such requirement, aims to prevent the perpetuation of fraud in

filing change of sex cases and maintain the reliability of entries in the civil

registrar.

IV. Evidence proving that petitioner has not taken any unnatural step to force

body into the categorical mold of the sex to be registered.

This requisite is adopted from the ruling of Republic v. Cagandahan. The

requirement of evidence proving that petitioner has not taken any unnatural step

to force the mold into the categorical mold of the sex to be registered is also in

relation to the prior requisite of a natural supervening biological change of the

individual. This is provided for, in order to draw a distinct line between

application of the law to intersex individuals and transgender, which this study

does not involve the latter. The qualification in R.A. 10172 is that the petition

“must also be accompanied by a certification issued by an accredited government

physician attesting to the fact that the petitioner has not undergone sex change or

sex transplant”141 while the proposed law provides that the medical certificate

must state “that the person seeking the change has not taken any unnatural step

to force the body into the categorical mole of the sex to be registered.” The

unnatural step contemplated by the latter provision includes both medical

surgery and hormonal therapy. The provision is also a tactic to deter parents,

guardian or even young children to undergo unnecessary surgery to conform to

141
see RA. 10172, supra note 6

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the pressures of society to select a dichotomous classification right away. In

providing for such requisite the intersex children is require to wait, before

undergoing any major operations, to be able to retain the right to change the

registered sex. This will allow them to grow into their body and upon maturity

may decide for themselves, the sex that would properly embody them.

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