Substantial correction

This case refers to changes or corrections in the civil register particularly on the birth certificate. Under the existing laws (Article 412 and 376 Civil Code in relation to RA 9048), said corrections cannot be made without judicial order except when the corrections involved typographical or clerical errors. What constitutes clerical or typographical error? Does it include the change in nationality, age, status or sex?  These are the issues resolved in this case.

This is the case of Toni whose parents are Mr. and Mrs. Santos. When he was born, his name was registered as “Toni Gregorio” in his birth certificate, and his sex as “male”. But since childhood, and as he grew up, he thinks and acts like a female and always identifies himself with girls during his elementary, high school and college schooling. Feeling trapped in a man’s body, he consulted several doctors and underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself into a woman culminated when he underwent sex reassignment surgery in another country.

From then on, Toni lived as a female and was in fact engaged to be married already after obtaining a doctorate degree abroad. Thus he filed a Petition in the Regional Trial Court to have his name in his birth certificate changed from “Toni” to “Tonia” Gregorio, and his sex from “male” to “female”.

After proper notice of the hearing of his petition, and compliance with the jurisdictional requirements, no opposition to the petition was filed. During trial, Toni testified for himself and also presented the doctor who issued the medical certificate on the sex reassignment surgery he had undergone. Then the RTC rendered a decision granting Toni’s petition. The lower court ruled: (1) that granting the petition would be in consonance with justice and equity; (2) that no harm or injury will be caused to anybody or the community and instead would bring more happiness to Toni and his (her) fiancé as their dreams will come true; and (3) no evidence was presented to prove any cause or ground to deny the petition despite due and publication.

However, the lower court’s decision was set aside by the Court of Appeals (CA). The CA ruled that there is no law allowing the change of either name or sex in the birth certificate on the ground of sex reassignment through surgery. Was the CA correct?

Yes said the Supreme Court. There is really no law allowing the change of entry in the birth certificate as to the first name and sex on the ground of sex reassignment. The change of the first name may be allowed and done by the concerned city or municipal civil registrar, or consul general, only because of typographical or clerical errors. It can be also changed or corrected through a judicial order because of the following substantial errors: (1) the first name or nickname appears to be ridiculous or tainted with dishonor or extremely difficult to pronounce; (2) the new first name or nickname has been habitually and continuously used by a person and he has been publicly known by that first name or nickname in the community; or (3) the change will avoid confusion (Sections 1 and 4, R.A. 9048).

Clerical or typographical error refers to “a mistake committed in the performance of the clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous such as misspelled name or misspelled place of birth or the like which is visible to the eyes or obvious to the understanding and can be corrected or changed only by reference to other existing records”. However, if the correction involves the change of nationality, age, status or sex of the person, it cannot be allowed (Section 2 (c) R.A. 9048)

The law (Article 407 of the Civil Code), only authorizes the entry of acts, events and judicial decrees that touch upon the legal capacity, status and nationality of a person. Sex reassignment is not among those acts or events mentioned in said article. Neither is it recognized nor even mentioned by any law expressly or impliedly. “Sex” as understood under the Civil Registry Law enacted in 1900s and remains unchanged, is not something alterable through surgery or something that allows a post-operative male to female transsexual.

Besides the changes sought by Toni will have serious and wide ranging legal and public policy consequences. Marriage is one of the most sacred social institutions and a special contract of permanent union between a man and a woman. One of its essential requisites is the legal capacity of the parties who must be male and female. To grant the change sought by Toni will substantially reconfigure and greatly alter the laws of marriage and family relations. It will allow the union of man with another man who has undergone sexual reassignment. They underscore public policy which could be substantially affected if the petition is granted. Thus it is also wrong to say that the petition is in consonance with justice and equity (Silverio vs Republic, G.R. 174689, October 22, 2007)

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