‘She’ can’t change name, gender — CA

If a man underwent surgery to change his sex, would he then legally become a woman?

The Court of Appeals (CA) decided to junk the bid of a man who underwent sex reassignment surgery in Bangkok, Thailand in 2001 who sought to change his legal gender from male to female.

In a 10-page decision penned by Associate Justice Arcangelita Romilla-Lontok, the CA’s special sixth division granted the petition for certiorari filed by the Office of the Solicitor General (OSG) and set aside the June 4, 2003 ruling of the Manila regional trial court that had granted the petition of Rommel Jacinto Dantes Silverio to change his name from "Rommel Jacinto" to "Mely" and to change his legal gender.

It also dismissed for lack of merit the special proceedings filed with the Manila court.

The CA said that while Silverio succeeded in transforming himself into a woman through modern science, no law has been passed allowing a change of name to conform to the sex change.

"There is, thus, no legal basis to change entry as to Rommel Jacinto’s sex from male to female nor change his name from Rommel Jacinto Dantes Silverio to Mely Dantes Silverio," the appellate court said.

The CA added that while the Manila court said it granted Silverio’s petition "in consonance with the principles of justice and equity," and that "no harm, injury nor prejudice will be caused to anybody," the justices "believed otherwise."

The CA also said the Manila court had no jurisdiction over Silverio’s case because the law mandates that Silverio must file the case in Quezon City, where he resides.

Court records showed that on Nov. 26, 2002, Silverio filed with the Manila court a petition to change the entries on his certificate of live birth to reflect his new name and sex.

Silverio was born in Manila to spouses Melcio Petines Silverio and Anita Aquino Dantes on Apr. 4, 1962 and the name recorded in his certificate of live birth is Rommel Jacinto Dantes Silverio.

Silverio maintained he was born a transsexual and since childhood had identified himself with girls, playing games and enjoying toys associated with the opposite sex.

After earning a Bachelor of Science in Statistics and master of arts degree at the University of the Philippines (UP), Silverio took up and finished a population studies program, a master’s degree in sociology and doctorate degrees in philosophy and sociology at the University of Hawaii in the United States.

Wanting to physically become a woman, Silverio consulted several doctors who gave him psychological exams while he was taking courses in the US.

The doctors also gave Silverio hormone treatment and performed breast augmentation. They then decided that he was ready for "sex reassignment surgery" to become a female.

Silverio underwent surgery "consisting of penectomy, bilateral oschiectomy penile skin inversion, vaginoplasty clitoral hood reconstruction and augmentation mammoplasty" on Jan. 27, 2001 in Thailand under the care of surgeon Dr. Preecha Tiewtranon.

He was later examined by Dr. Marcelino Reysio-Cruz, a renowned plastic reconstruction surgeon in the Philippines, who issued a medical certificate to attest to the success of the sex reassignment surgery.

Since then, Silverio has been living as a female and was engaged to be married.

Silverio sought to have the entries in his certificate of live birth altered to reflect his name and gender, saying such changes were "not intended to evade any law, judgment or unpaid obligation" and noting that he was law-abiding, possessed of good moral character and had never been indicted nor convicted of any offense.

"With his sexual reassignment, petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioner’s misfortune to be trapped in a man’s body is not his own doing and should not be in any way taken against him" the Manila court said in granting his petition.

The court added that "granting the petition would bring much-awaited happiness on the part of the petitioner and her fiancée and the realization of their dreams. Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even the state, through the (OSG), has not seen fit to interpose any opposition."

On Aug. 18, 2003, the OSG filed a petition citing that the government was denied due process when it was not furnished with a copy of Silverio’s petition.

The OSG said the Manila court had no jurisdiction over Silverio’s case for lack of service of the petition and because "the issue raised in the petition is purely of law."

The OSG said Rule 108 of the Revised Rules of Court deals with the cancellation or correction of entries in the civil registry and has two kinds of proceedings — summary and adversarial.

"If the correction sought to be made in the civil registry is clerical, then the procedure to be adopted is summary. If the modification affects the civil status, nationality or citizenship of a party, it is deemed substantial, and the procedure to be adopted is adversary," the OSG said.

Even substantial errors in a civil registry may be corrected and the true facts established, the OSG said, provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding.

"Correction is generally the act or an instance of making right what is wrong. Instant case does not involve an error in the recording of name nor of sex. There are no errors in his birth certificate. (Silverio) does not seek a correction of his name and sex. He wants them changed," the OSG said.

The OSG said that under Republic Act 9048, the petition for change of first name or nickname may be denied on the following grounds: "The first name or nickname sought to be changed is neither ridiculous, nor tainted with dishonor nor extremely difficult to write or pronounce; the new first name or nickname sought to be adopted has not been habitually and continuously used by the petitioner and he has not been publicly known by that first name or nickname in the community; there is confusion to be avoided or created with the use of the registered first name or nickname of the petitioner."

The OSG said a person desiring to change his name should present the petition to the Court of First Instance in the province in which he resides or in the City of Manila, to the Juvenile and Domestic Relations Court.

The OSG said a petition for change of name must be signed by the person desiring his name changed or another person on his behalf, and should indicate that "the petitioner has been a bona fide resident of the province where the petition is filed for at least three years prior to the date of such filing; the cause for which the change of the petitioner’s name is sought; (and) the name asked for."

Silverio is a resident of "Project 4, Quezon City. He has resided in said address for more than five years prior to the date of filing of the petition. The petition may be dismissed for improper venue," the OSG said.