Equality and identity

TOWARDS JUSTICE - Emmeline Aglipay-Villar (The Philippine Star) - November 17, 2020 - 12:00am

It never ceases to amaze me how a word such as “equality” can trigger such virulent resistance.

Every time a minority seeks a change in the status quo, there will be loud voices claiming things are fine just the way they are. When I say “minority” I do not speak in terms of statistics, but in terms of treatment – a minority group is one that is treated inequitably because they are deemed to be somehow less than that of the “default” group. This is why women are a minority in practically every society, even if they conceivably outnumber the men – because those societies are structured with “men” as the default, the standard by which humanity is truly measured. If it’s good enough for the “default,” it should be good enough for everyone else.

As a woman, the arguments raised against the passage of the SOGIE Equality Act are disappointingly familiar. We’ve heard similar arguments against laws that target violence against women, or that grant access to maternity leaves or reproductive health. Even the celebration of International Women’s Day can’t be held without members of the default asking “why don’t we have International Men’s Day”? (It exists, and it’s Nov. 19.) So too do Gay Pride celebrations trigger “Straight Pride” initiatives, because there are those in the “default” class who simply must have what everyone else has – even if that something is a reaction to marginalization that, by definition, cannot be experienced by those in the center.

This idea that what “equality” means, as an ideal of the law, is that it should treat everyone exactly the same way is not only contrary to established legal principles – it is a poisonous roadblock to a just society. It is established jurisprudence that equality before the law, as embodied in the equal protection clause of our Constitution, must allow for reasonable classifications based on substantial distinctions. There can be no true objection to this, because the alternative would be ridiculous: the State would be unable to give urgent assistance to areas hit by calamities, or tax entities according to their means, or even imprison those found guilty of heinous crimes, because all of these involve treating people differently because of different needs.

And the existence of different needs is key here, because the circumstances faced by different groups can vary greatly. Some critics of the SOGIE bill make much of the fact that while the bill defines the LGBT community, it does not explicitly mention the “straight community.” From this, they then deduce that the bill does not benefit those who are not lesbian, gay, bisexual or transgendered and conclude that the bill elevates the rights of LGBTs above those of those who are not.

There are several fundamental flaws in this stance. The first is that a perusal of the text of the bill (based on House Bill 4982 of the 17th Congress) will show that in the list of 16 discriminatory practices, LGBT are specifically mentioned only once, in relation to public speech against LGBTs – which provision even goes so far as to exempt religious speech. The only other instances where LGBT appears explicitly are (1) in the renaming of the PNP Women and Children’s Desks to coincide with the expanding of their purview to include SOGIE concerns; and (2) to encourage empowering portrayals of LGBT persons in media.

The reason for these explicit mentions should be clear from the context: in terms of gender identity or expression, what is assumed by default is heterosexuality, males expressing as masculine and females as feminine. This is why, for instance, representation in media of LGBT is so important – as a statistical minority of the characters that are portrayed in the media will be LGBT characters, it is far easier for stereotypical individual portrayals of LGBT to have a damaging effect on the public perception of them. The provision of law encouraging empowering portrayals of LGBT characters is meant to address a specific problem conveyed by their minority status and it does so at no detriment to any other group.

As for the rest of the bill, the terms gender identity and gender expression are so defined in a manner that makes it clear that every person, LGBT or not, is in possession of the same. The definition of Hate Crimes is tied to bias against gender identity or expression, and not to LGBT characteristics. There is, literally, nothing to prevent the proposed law from being used against discrimination against non-LGBT persons.

In spite of all that, the fact that certain critics still see the bill as one which does not benefit the non-LGBT community should be seen as an implicit acknowledgment of one thing: that by and large, it is LGBT persons who are the victims of discrimination due to their gender orientation and/or expression. In short, they are the persons that most need this law – and that is why they are the persons explicitly mentioned in it. In other words, in their insistence that non-LGBT persons would not benefit from the SOGIE bill, these critics have proven the very substantial distinctions that make it appropriate for the bill to make special provisions for the LGBT.

I propose, however, that even the very contention that the bill does not benefit non-LGBT persons should be disregarded. Even if not a single straight person ends up making use of a SOGIE law for their own benefit, they are still empowered by this law. A law that makes society more just – even if it does so by focusing on the special needs of a minority – makes it more just for everyone in that society.

All of us have the potential to be a minority in some aspect of our identity – a heterosexual man may be the norm in terms of gender identity and expression, but he may be a minority because of disability, or poverty, or his chosen religion.

A society which protects its most vulnerable is one that is safer, even for its most privileged. As a rising tide lifts all boats, so too will fairer treatment of LGBT persons be fairer for us all.

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