Sex change for a change?

Emerging trends of the times

They’re coming out of the closet now, one step at a time, aren’t they?

In the military, while there is no official written policy, homosexuals have been admitted into their ranks — rather discreetly. There is no problem insofar as the administrative staff are concerned.

The same holds true with sensitive posts in the government, whether appointive or elective. Entry into Congress is a cinch now under the party-list system.

The newly-elected officers of the UP Student Council made headlines with the election of an openly transgender chair, “transwoman” “Heart” Dino. Vice-chair was an open lesbian, Alex Castro. Another transgender, Pat Bringas, won as councilor. Others who emerged victorious in campus politics were members of UP Babaylan, an organization composed of lesbians, gays, bisexuals and transgenders (LGBT). Gender identity aside, Heart is eminently qualified to be a campus leader, being a BS Mathematics graduate, magna cum laude.

What used to provoke controversies before in political/legal circles was whether a candidate was a “natural-born citizen” and, therefore, qualified to run or be appointed to a certain public office. Now the crucial question is being asked in beauty contests: Is she a “naturally-born female?” For the Miss Universe pageant is now changing its rules to allow transgender women to take part in all of its competitions starting 2013. What sparked the startling decision in Canada was a media outcry over the disqualification of a contestant from the upcoming Miss Universe contest because she was not a “naturally-born female.”

In the Philippines, as early as 1978, the plight of the gay sector received sympathetic treatment under the directorial supervision of Lino Brocka, an open gay, when he cast the popular comedian, Dolphy, in the stellar role of a gay beautician in the film, “Ang Tatay Kong Nanay.”

The theater has not been averse to utilizing cross-dressing in hilarious plots, as in the recent Repertory play, “Leading Ladies” which, incidentally, I and my family enjoyed immensely. Nowadays, cross-dressing doesn’t lift that many eyebrows anymore; more often than not, it provokes no more than an indulgent smile from onlookers.

What does the law have to say on the matter?

Sex reassignment surgery

No less than the Supreme Court has had to come to grips with this social reality when it had to decide whether to grant a petition to change his/her name to reflect one’s changed sex.

 The issue boiled down to: When is a man a man and when is a woman a woman? Does the law recognize the changes made by a physician using scalpel, medication and counseling with regard to a person’s sex? May a person petition for a change of name and sex appearing in his birth certificate to reflect the result of a sex reassignment surgery?

One who knew his law petitioned the court for a change of name in his birth certificate after successfully undergoing sex reassignment surgery in Bangkok. He argued that he was “anatomically male but feels, thinks and acts as a female.”

In the 2007 case of Silverio v. Republic, the Supreme Court, turning down the petition, declared: “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 changes sought by petitioner will have serious and wide-ranging legal and public policy consequences.”

In this case, the decision not to recognize the sex change as valid arose only from the petition for a change of name.

The unordinary intersex individual

A year or so later, however, the Supreme Court, in the case of Republic v. Cagandahan (2008) allowed, not only the change in the name of the respondent from Jennifer Cagandahan to Jeff Cagandahan, but also the gender, from female to male, in his birth certificate.

Unlike the earlier Silverio case, this time, Cagandahan, who was born a female, started developing secondary male characteristics in growing up, unaided by surgery or medical treatment. The psychiatrist who testified said that she was afflicted with a rare but permanent condition called Congenital Adrenal Hyperplasia (CAH) where she has both male and female sex organs. This causes the appearance of early or “inappropriate” appearance of male characteristics, such as deepening of the voice, facial hair and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH.

CAH is one of many conditions that involve intersex anatomy. An intersex individual is considered as suffering from a “disorder” which is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as nearly as possible into the category of either male or female, as required by Philippine law.

Unlike in the Silverio case, here the respondent has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. Treading into this “no-man’s land,” the Supreme Court refrained from reiterating its doctrine in Silverio that “the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable.” Instead, it opined that: “Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.”

“Ultimately, we are of the view that where the person is biologically or naturally intersex, the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex...The Court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences...To him belongs the human right to the pursuit of his happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation.

“In the absence of evidence that respondent is an ‘incompetent’ and in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondent’s position and his personal judgment of being a male.”

The Supreme Court concluded: “In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In other words, we respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case.”

Since a change of name under Rule 103 of the Rules of Court is not a matter of right but of judicial discretion, the Supreme Court has taken into consideration expert testimony and the hard facts of medical/scientific technology regarding natural sex change. It granted respondent’s petition to change his name from Jennifer to Jeff reflecting his preferred choice of gender from female to male.

Henceforth, individuals with dubious sexual identities or orientations who come home from New York or Paris may scrutinize these Supreme Court decisions for guidance - if applicable to their cases.

(Justice Romero is a retired Senior Associate Justice of the Supreme Court.)