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Friday, October 26, 2007

Legally Making Him a "She"

“When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?”

This was the question agonized over by the Supreme Court when it decided on the petition filed by Rommel Jacinto Dantes Silverio, who wanted to be officially named “Mely” and his gender recognized as “female” on account of the physical “re-engineering” that he has undergone.

I remember this case because we discussed this in class at the time when media reported the filing of the original petition in the lower court.

There were those of us who argued that every person has the right to pursue happiness, and in this case, all that the Court should do is to recognize the changes made on the physical attributes of Rommel and provide him complete release from everything associated with the “wrong” gender he was born with. After all, society has already accepted him for who he is now, and it is just his person that is eventually affected.

But when our professor counseled us to browse through the law, we did find no specific basis to grant the wishes of Silverio. Existing laws provide only for correction of clerical or typographical errors or whenever the name is (1) ridiculous, tainted with dishonor or extremely difficult to write or pronounce (2) habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or where the change will avoid confusion.

There had been precedents covering allowed changes but not under the premises of Silverio’s circumstances. And as the Court noted, Rommel cited not the above reasons, but his sex-change operation as basis for the petition. Clearly, that ground is not in the books.

But presuming he did, say he claimed that “Mely” is the name he has continually and habitually used, would the petition have prospered? Not even, as he likewise failed to present “proper or reasonable cause or any compelling reason justifying such change”. For in the contrary, it is society that will have to suffer eventually as it will now have flexible or bendable definitions of gender which are supposed to have been determined at birth. It will now affect existing laws on marriage (which is only man-woman) and will confuse the implementation of gender-based legislation.

So, much as it would have wanted to make Silverio happy and complete, the Court, in the end decided not to use, in this instance, its law or rule making powers. It reiterated that it has to be Congress that should lay the ground rules for the recognition of innovations spawned by medical technology, as such indeed could trigger effects on existing laws recognizing specific gender roles.

Rommel may just have to live with the papers he has today. After all happiness is being contented with one has, and since he already possesses the attributes he had dreamed of, he may just as well enjoy them despite the absence of official recognition. To Rommel, Cheers! Just be happy.

P.S.

I have known of many people who had to go to court to correct wrong entries on their birth certificates as regards their gender. Sayang! Sana nagkamali na lang din kaagad yung civil registrar. Ok lang naman sana yung Rommel na “female” di ba? :-)

6 comments:

Abaniko said...

I wonder how immigration in other countries would deal with him every time they see him with female physical attributes but his gender in his passport says "male." He can always explain but man, that would surely take some minutes to the annoyance of other travelers in the line behind him. :)

jc.guiyab said...

the spelling of my first and middle name are wrong. since kinder i've been using the "right spelling" until college when the school registrar told me to fix my bc and correct my name. too late.i'm graduating and will take my boards in june. ayun

damn those typewriters and bisaya accents.

hehehe

Rochelle said...

Wow. I had to reread this. Hmmm. I too know some people who have had to get some things changed on the birth certificate. However, they were errors. What about people who want to change their names though? Is their actually birth certificate changed though?

KRISJASPER said...

See how powerful an INK can be.. This had happened to my sis, she's about to go to the US but when her docus were checked, her birth cert stated she's a HE.. she had to sort it out first and it took ages.. Malas..

The Rainmaker said...

People indeed do astonishing things.

aryo said...

Abaniko: I commiserate.

JC: So what happened? You see, the "right" spelling should have been the one written in your birth certificate. Kasi pinirmahan din naman yun ng parents mo. Binago nyo nga lang pagpasok mo ng school.

Rochelle: That precisely was the argument of the Court. It said that no error was made in the preparation of the BC because what was written there were the facts at the time.

KrisJasper: Ayun, error talaga yun. Dapat idemanda na yung gumawa nun for the damage caused. :-)