Republic of the
Supreme Court
EN BANC
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ANG LADLAD LGBT PARTY |
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G.R. No. 190582 |
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represented herein by its Chair, |
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DANTON REMOTO, |
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Petitioner, |
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Present: |
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PUNO, C. J., |
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CARPIO, |
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CARPIO MORALES, |
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VELASCO, JR., |
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NACHURA, |
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LEONARDO-DE CASTRO, |
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- versus - |
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BRION, |
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PERALTA, |
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BERSAMIN, |
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ABAD, |
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VILLARAMA, JR., |
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PEREZ, and |
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MENDOZA, JJ. |
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COMMISSION ON ELECTIONS, |
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Promulgated: |
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Respondent. |
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April 8, 2010 |
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D E C I S I O N
... [F]reedom to differ is not limited to things that do not matter
much. That would be a mere shadow of freedom. The test of its substance is the
right to differ as to things that touch the heart of the existing order.
Justice
Robert A. Jackson
One unavoidable consequence of
everyone having the freedom to choose is that others may make different choices
– choices we would not make for ourselves, choices we may disapprove of, even
choices that may shock or offend or anger us.
However, choices are not to be legally prohibited merely because they
are different, and the right to disagree and debate about important questions
of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine
recognition of, and respect for, diversity and difference in opinion.
Since ancient times, society has
grappled with deep disagreements about the definitions and demands of
morality. In many cases, where moral
convictions are concerned, harmony among those theoretically opposed is an
insurmountable goal. Yet herein lies the paradox – philosophical justifications
about what is moral are indispensable and yet at the same time powerless to
create agreement. This Court recognizes,
however, that practical solutions are preferable to
ideological stalemates; accommodation is better than intransigence; reason more
worthy than rhetoric. This will allow persons of diverse viewpoints to live
together, if not harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of
Court, with an application for a writ of preliminary mandatory injunction,
filed by Ang Ladlad LGBT Party (Ang Ladlad) against the
Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009[2]
(the First Assailed Resolution) and December 16, 2009[3]
(the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the
Assailed Resolutions). The case has its roots in the COMELEC’s refusal to
accredit Ang Ladlad as a party-list organization under Republic Act (RA)
No. 7941, otherwise known as the Party-List System Act.[4]
Ang Ladlad is an organization composed of
men and women who identify themselves as lesbians, gays, bisexuals, or
trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad
first applied for registration with the COMELEC in 2006. The application for accreditation was denied
on the ground that the organization had no substantial membership base. On
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity; that LGBTs are victims
of exclusion, discrimination, and violence; that because of negative societal attitudes,
LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad
complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections.[6] Ang Ladlad laid out its national
membership base consisting of individual members and organizational supporters,
and outlined its platform of governance.[7]
On
x x x This Petition is
dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay,
Bisexual and Transgender (LGBT) Community, thus:
x
x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that
which:
x x x refers to a person’s capacity for profound
emotional, affectional and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender, of the same gender, or more
than one gender.”
This
definition of the LGBT sector makes it crystal clear that petitioner tolerates
immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:
For
this cause God gave them up into vile affections, for even their women did
change the natural use into that which is against nature: And likewise also the
men, leaving the natural use of the woman, burned in their lust one toward
another; men with men working that which is unseemly, and receiving in
themselves that recompense of their error which was meet.
In
the Koran, the hereunder verses are pertinent:
For
ye practice your lusts on men in preference to women “ye are indeed a people
transgressing beyond bounds.” (7.81) “And we rained down on them a shower (of
brimstone): Then see what was the end of those who indulged in sin and crime!”
(7:84) “He said: “O my Lord! Help Thou me against people who do mischief”
(29:30).
As
correctly pointed out by the Law Department in its Comment dated
The
ANG LADLAD apparently advocates sexual immorality as indicated in the
Petition’s par. 6F: ‘Consensual partnerships or relationships by gays and
lesbians who are already of age’. It is further indicated in par. 24 of the
Petition which waves for the record: ‘In 2007, Men Having Sex with Men
or MSMs in the
Laws
are deemed incorporated in every contract, permit, license, relationship, or
accreditation. Hence, pertinent provisions of the Civil Code and the Revised
Penal Code are deemed part of the requirement to be complied with for
accreditation.
ANG
LADLAD collides with Article 695 of the Civil Code which defines nuisance as
‘Any act, omission, establishment, business, condition of property, or anything
else which x x x (3) shocks, defies; or disregards decency or morality x
x x
It
also collides with Article 1306 of the Civil Code: ‘The contracting parties may
establish such stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good customs,
public order or public policy. Art 1409 of the Civil Code provides that
‘Contracts whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy’ are inexistent and void from the
beginning.
Finally
to safeguard the morality of the Filipino community, the Revised Penal Code, as
amended, penalizes ‘Immoral doctrines, obscene publications and exhibitions and
indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene
publications and exhibitions, and indecent shows. — The penalty of prision
mayor or a fine ranging from six thousand to twelve thousand pesos, or both
such imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim
doctrines openly contrary to public morals;
2. (a)
The authors of obscene literature, published with their knowledge in any
form; the editors publishing such literature; and the owners/operators of the
establishment selling the same;
(b)
Those who, in theaters, fairs, cinematographs or any other place, exhibit
indecent or immoral plays, scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays, scenes, acts or shows, whether
live or in film, which are prescribed by virtue hereof, shall include those
which: (1) glorify criminals or condone crimes; (2) serve no other purpose but
to satisfy the market for violence, lust or pornography; (3) offend any
race or religion; (4) tend to abet traffic in and use of prohibited drugs; and
(5) are contrary to law, public order, morals, good customs, established
policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit
films, prints, engravings, sculpture or literature which are offensive to
morals.
Petitioner
should likewise be denied accreditation not only for advocating immoral
doctrines but likewise for not being truthful when it said that it “or any of its nominees/party-list
representatives have not violated or failed to comply with laws, rules, or
regulations relating to the elections.”
Furthermore, should this
Commission grant the petition, we will be exposing our youth to an environment
that does not conform to the teachings of our faith. Lehman Strauss, a famous
bible teacher and writer in the
When Ang Ladlad sought reconsideration,[9]
three commissioners voted to overturn the First Assailed Resolution
(Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco),
while three commissioners voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T. Ferrer,
Lucenito N. Tagle, and Elias R. Yusoph).
The COMELEC Chairman, breaking the tie and speaking for the majority in
his Separate Opinion, upheld the First Assailed Resolution, stating that:
I.
The Spirit of
Republic Act No. 7941
Ladlad
is applying for accreditation as
a sectoral party in the party-list system. Even assuming that it has properly
proven its under-representation and marginalization, it cannot be said that Ladlad’s expressed sexual orientations per se would benefit the nation as a
whole.
Section
2 of the party-list law unequivocally states that the purpose of the party-list
system of electing congressional representatives is to enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that
will benefit the nation as a whole, to become members of the House of
Representatives.
If entry into the party-list system would depend only
on the ability of an organization to represent its constituencies, then all
representative organizations would have found themselves into the party-list
race. But that is not the intention of the framers of the law. The party-list
system is not a tool to advocate tolerance and acceptance of misunderstood
persons or groups of persons. Rather, the
party-list system is a tool for the realization of aspirations of marginalized
individuals whose interests are also the nation’s – only that their
interests have not been brought to the attention of the nation because of their
under representation. Until the time
comes when Ladlad is able to justify
that having mixed sexual orientations and transgender identities is beneficial
to the nation, its application for accreditation under the party-list system
will remain just that.
II.
No substantial differentiation
In the
x x x x
Thus, even if society’s understanding, tolerance, and
acceptance of LGBT’s is elevated, there can be no denying that Ladlad constituencies are still males
and females, and they will remain
either male or female protected by the same Bill of Rights that applies to all
citizens alike.
x x x x
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim religious
practices. Neither is there any attempt to any particular religious group’s
moral rules on Ladlad. Rather, what
are being adopted as moral parameters and precepts are generally accepted
public morals. They are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years
of Muslim and Christian upbringing, such that some moral precepts espoused by
said religions have sipped [sic] into society and these are not publicly
accepted moral norms.
V.
Legal Provisions
But above morality and social norms, they have become
part of the law of the land. Article 201 of the Revised Penal Code imposes the
penalty of prision mayor upon “Those
who shall publicly expound or proclaim doctrines openly contrary to public
morals.” It penalizes “immoral doctrines, obscene publications and exhibition
and indecent shows.” “Ang Ladlad” apparently
falls under these legal provisions. This is clear from its Petition’s paragraph
6F: “Consensual partnerships or
relationships by gays and lesbians who are already of age’ It is further
indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men
Having Sex with Men or MSMs in the
On
On
In the meantime, due to the urgency of the petition, we issued a
temporary restraining order on
Also, on
On
The Parties’ Arguments
Ang Ladlad argued that the denial of
accreditation, insofar as it justified the exclusion by using religious dogma,
violated the constitutional guarantees against the establishment of
religion. Petitioner also claimed that
the Assailed Resolutions contravened its constitutional rights to privacy,
freedom of speech and assembly, and equal protection of laws, as well as
constituted violations of the
The OSG concurred with Ang
Ladlad’s petition and argued that the COMELEC erred in denying petitioner’s
application for registration since there was no basis for COMELEC’s allegations
of immorality. It also opined that LGBTs have their own special interests and
concerns which should have been recognized by the COMELEC as a separate
classification. However, insofar as the
purported violations of petitioner’s freedom of speech, expression, and
assembly were concerned, the OSG maintained that there had been no restrictions
on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a
concrete and genuine national political agenda to benefit the nation and that
the petition was validly dismissed on moral grounds. It also argued for
the first time that the LGBT
sector is not among the sectors enumerated by the Constitution and RA 7941, and
that petitioner made untruthful statements in its petition when it alleged its
national existence contrary to actual verification reports by COMELEC’s field
personnel.
Our Ruling
We grant the petition.
Compliance
with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlad’s application for registration on
the ground that the LGBT sector is neither enumerated in the Constitution and
RA 7941, nor is it associated with or related to any of the sectors in the
enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those
sectors specifically enumerated in the law or related to said sectors (labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals) may
be registered under the party-list system.
As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections,[20]
“the enumeration of marginalized and under-represented sectors is not
exclusive”. The crucial element is not
whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA
7941.
Respondent also argues that Ang Ladlad made untruthful statements
in its petition when it alleged that it had nationwide existence through its
members and affiliate organizations. The COMELEC claims that upon verification
by its field personnel, it was shown that “save for a few isolated places in
the country, petitioner does not exist in almost all provinces in the country.”[21]
This argument that “petitioner made untruthful statements in its petition
when it alleged its national existence” is a new one; previously, the COMELEC
claimed that petitioner was “not being truthful when it said that it or any of
its nominees/party-list representatives have not violated or failed to comply
with laws, rules, or regulations relating to the elections.” Nowhere was this ground for denial of
petitioner’s accreditation mentioned or even alluded to in the Assailed
Resolutions. This, in itself, is quite curious, considering that the reports of
petitioner’s alleged non-existence were already available to the COMELEC prior
to the issuance of the First Assailed Resolution. At best, this is irregular
procedure; at worst, a belated afterthought, a change in respondent’s theory,
and a serious violation of petitioner’s right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad’s
initial petition shows that it never claimed to exist in each province of the
§
Abra Gay
Association
§
Aklan
Butterfly Brigade (ABB) – Aklan
§
Albay Gay
Association
§
§
Boys Legion –
Metro
§
Cagayan de
Oro People Like Us (CDO PLUS)
§
Can’t Live in
the Closet, Inc. (CLIC) – Metro
§
Cebu Pride –
§
Circle of
Friends
§
Dipolog Gay
Association – Zamboanga del Norte
§
Gay,
Bisexual, & Transgender Youth Association (GABAY)
§
Gay and
Lesbian Activists Network for Gender Equality (GALANG) – Metro
§
Gay Men’s
Support Group (GMSG) – Metro Manila
§
Gay United
for Peace and Solidarity (GUPS) – Lanao del Norte
§
§
Kabulig
Writer’s Group – Camarines Sur
§
Lesbian
Advocates Philippines, Inc. (LEAP)
§
LUMINA –
§
§
§
§
ONE BACARDI
§
Order of St.
Aelred (OSAe) – Metro
§
PUP LAKAN
§
RADAR
PRIDEWEAR
§
Rainbow
Rights Project (R-Rights), Inc. – Metro
§
San Jose del
Monte Gay Association – Bulacan
§
Sining
Kayumanggi Royal Family – Rizal
§
Society of
Transexual Women of the
§
Soul Jive –
Antipolo, Rizal
§
The Link –
§
Tayabas Gay
Association – Quezon
§
Women’s
Bisexual Network – Metro Manila
§
Zamboanga Gay
Association –
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD
LGBT, it is no surprise that they found that petitioner had no presence in any
of these regions. In fact, if COMELEC’s findings are to be believed, petitioner
does not even exist in
Against this backdrop, we find that Ang Ladlad has sufficiently
demonstrated its compliance with the legal requirements for accreditation.
Indeed, aside from COMELEC’s moral objection and the belated allegation of
non-existence, nowhere in the records has the respondent ever found/ruled that Ang
Ladlad is not qualified to register as a party-list organization under any
of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The
difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack
thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s
Petition for Registration
Our Constitution provides in Article III, Section 5 that “[n]o law shall
be made respecting an establishment of religion, or prohibiting the free
exercise thereof.” At bottom, what our non-establishment clause calls for is
“government neutrality in religious matters.”[24] Clearly, “governmental reliance on religious
justification is inconsistent with this policy of neutrality.”[25] We thus find that it was grave
violation of the non-establishment clause for the COMELEC to utilize the Bible
and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the
legitimacy of the Assailed Resolutions should depend, instead, on whether the
COMELEC is able to advance some justification for its rulings beyond mere
conformity to religious doctrine. Otherwise
stated, government must act for secular purposes and in ways that have
primarily secular effects. As we held in
Estrada v. Escritor:[26]
x
x x The morality referred to in the law
is public and necessarily secular, not religious as the dissent of Mr. Justice
Carpio holds. "Religious teachings as expressed in public debate may
influence the civil public order but public moral disputes may be resolved only
on grounds articulable in secular terms." Otherwise, if government relies
upon religious beliefs in formulating public policies and morals, the resulting
policies and morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious belief, i.e., to a
"compelled religion," anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly approve
or endorse that belief and thereby also tacitly disapprove contrary religious
or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or
even make it appear that those whose beliefs are disapproved are second-class citizens.
In
other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That
is, the government proscribes this conduct because it is "detrimental (or
dangerous) to those conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the beliefs of
one religion or the other. Although admittedly, moral judgments based on
religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and
thus have religious opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual institutions of
society in a uniform manner, harmonizing earth with heaven. Succinctly put, a
law could be religious or Kantian or Aquinian or utilitarian in its deepest
roots, but it must have an articulable and discernible secular purpose and
justification to pass scrutiny of the religion clauses. x x x Recognizing the
religious nature of the Filipinos and the elevating influence of religion in
society, however, the Philippine constitution's religion clauses prescribe not
a strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same time
strive to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by
laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state
interests.[27]
Public Morals as a Ground to Deny
Ang Ladlad’s Petition for Registration
Respondent
suggests that although the moral condemnation of homosexuality and homosexual
conduct may be religion-based, it has long been transplanted into generally
accepted public morals. The COMELEC
argues:
Petitioner’s
accreditation was denied not necessarily because their group consists of LGBTs
but because of the danger it poses to the people especially the youth. Once it
is recognized by the government, a sector which believes that there is nothing
wrong in having sexual relations with individuals of the same gender is a bad
example. It will bring down the standard of morals we cherish in our civilized
society. Any society without a set of moral precepts is in danger of losing its
own existence.[28]
We are not blind to the fact that, through the years,
homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of
societal disapproval. It is not
difficult to imagine the reasons behind this censure – religious beliefs,
convictions about the preservation of marriage, family, and procreation, even
dislike or distrust of homosexuals themselves and their perceived
lifestyle. Nonetheless, we recall that the
The Assailed Resolutions have not identified any specific
overt immoral act performed by Ang Ladlad. Even the OSG agrees that “there should have
been a finding by the COMELEC that the group’s members have committed or are
committing immoral acts.”[30] The OSG argues:
x
x x A person may be sexually attracted to a person of the same gender, of a
different gender, or more than one gender, but mere attraction does not
translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If immoral
thoughts could be penalized, COMELEC would have its hands full of
disqualification cases against both the “straights” and the gays.” Certainly
this is not the intendment of the law.[31]
Respondent has
failed to explain what societal ills are sought to be prevented, or why special
protection is required for the youth.
Neither has the COMELEC condescended to justify its position that
petitioner’s admission into the party-list system would be so harmful as to
irreparably damage the moral fabric of society.
We, of course, do not suggest that the state is wholly without authority
to regulate matters concerning morality, sexuality, and sexual relations, and
we recognize that the government will and should continue to restrict behavior
considered detrimental to society.
Nonetheless, we cannot countenance advocates who, undoubtedly with the
loftiest of intentions, situate morality on one end of an argument or another,
without bothering to go through the rigors of legal reasoning and
explanation. In this, the notion of
morality is robbed of all value. Clearly
then, the bare invocation of morality will not remove an issue from our
scrutiny.
We also find the COMELEC’s reference to purported violations of our
penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of
the Civil Code defines a nuisance as “any act, omission, establishment,
condition of property, or anything else which shocks, defies, or disregards
decency or morality,” the remedies for which are a prosecution under the
Revised Penal Code or any local ordinance, a civil action, or abatement without
judicial proceedings.[32] A violation of Article 201 of the Revised
Penal Code, on the other hand, requires proof beyond reasonable doubt to
support a criminal conviction. It hardly needs to be emphasized that mere
allegation of violation of laws is not proof, and a mere blanket invocation of
public morals cannot replace the institution of civil or criminal proceedings
and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a
sufficient governmental interest to justify exclusion of homosexuals from
participation in the party-list system.
The denial of Ang Ladlad’s registration on purely moral grounds
amounts more to a statement of dislike and disapproval of homosexuals, rather
than a tool to further any substantial public interest. Respondent’s
blanket justifications give rise to the inevitable conclusion that the COMELEC
targets homosexuals themselves as a class, not because of any particular
morally reprehensible act. It is this
selective targeting that implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution,
which provides “nor shall any person be
denied equal protection of the laws,” courts have never interpreted the
provision as an absolute prohibition on classification. “Equality,” said Aristotle, “consists in the
same treatment of similar persons.”[33] The equal protection clause guarantees that
no person or class of persons shall be deprived of the same protection of laws
which is enjoyed by other persons or other classes in the same place and in
like circumstances.[34]
Recent
jurisprudence has affirmed that if a law neither burdens a fundamental right
nor targets a suspect class, we will uphold the classification as long as it
bears a rational relationship to some legitimate government end.[35] In Central Bank Employees Association, Inc. v.
Banko Sentral ng Pilipinas,[36]
we declared that “[i]n our jurisdiction, the standard of analysis of equal
protection challenges x x x have followed the ‘rational basis’ test, coupled
with a deferential attitude to legislative classifications and a reluctance to
invalidate a law unless there is a showing of a clear and unequivocal breach of
the Constitution.”[37]
The COMELEC posits that the majority of
the Philippine population considers homosexual conduct as immoral and
unacceptable, and this constitutes sufficient reason to disqualify the
petitioner. Unfortunately for the respondent, the Philippine electorate has
expressed no such belief. No law exists
to criminalize homosexual behavior or expressions or parties about homosexual
behavior. Indeed, even if we were to
assume that public opinion is as the COMELEC describes it, the asserted state
interest here – that is, moral disapproval of an unpopular minority – is not a
legitimate state interest that is sufficient to satisfy rational basis review
under the equal protection clause. The COMELEC’s differentiation, and its unsubstantiated
claim that Ang Ladlad cannot contribute to the formulation of
legislation that would benefit the nation, furthers no legitimate state
interest other than disapproval of or dislike for a disfavored group.
From the standpoint of the political
process, the lesbian, gay, bisexual, and transgender have the same interest in
participating in the party-list system on the same basis as other political
parties similarly situated. State
intrusion in this case is equally burdensome.
Hence, laws of general application should apply with equal force to
LGBTs, and they deserve to participate in the party-list system on the same
basis as other marginalized and under-represented sectors.
It bears stressing that our finding that
COMELEC’s act of differentiating LGBTs from heterosexuals insofar as the
party-list system is concerned does not imply that any other law distinguishing
between heterosexuals and homosexuals under different circumstances would
similarly fail. We disagree with the OSG’s position that homosexuals are a
class in themselves for the purposes of the equal protection clause.[38] We are not prepared to single out homosexuals
as a separate class meriting special or differentiated treatment. We have not received sufficient evidence to
this effect, and it is simply unnecessary to make such a ruling today. Petitioner
itself has merely demanded that it be recognized under the same basis as all
other groups similarly situated, and that the COMELEC made “an unwarranted and
impermissible classification not justified by the circumstances of the case.”
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its
agenda and attempt to persuade society of the validity of its position through
normal democratic means.[39] It is in the public square that deeply held
convictions and differing opinions should be distilled and deliberated
upon. As we held in Estrada v. Escritor:[40]
In
a democracy, this common agreement on political and moral ideas is distilled in
the public square. Where citizens are free, every opinion, every prejudice,
every aspiration, and every moral discernment has access to the public square
where people deliberate the order of their life together. Citizens are the
bearers of opinion, including opinion shaped by, or espousing religious belief,
and these citizens have equal access to the public square. In this
representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation.
Through a constitutionally designed process, the people deliberate and decide.
Majority rule is a necessary principle in this democratic governance. Thus,
when public deliberation on moral judgments is finally crystallized into law,
the laws will largely reflect the beliefs and preferences of the majority,
i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution
and the limits it specifies – including protection of religious freedom
"not only for a minority, however small – not only for a majority, however
large – but for each of us" – the majority imposes upon itself a
self-denying ordinance. It promises not to do what it otherwise could do: to
ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are
favorably received but also to those that offend, shock, or disturb. Any
restriction imposed in this sphere must be proportionate to the legitimate aim
pursued. Absent any compelling state interest, it is
not for the COMELEC or this Court to impose its views on the populace.
Otherwise stated, the COMELEC is certainly not free to interfere with speech
for no better reason than promoting an approved message or discouraging a
disfavored one.
This position
gains even more force if one considers that homosexual conduct is not illegal
in this country. It follows that both expressions
concerning one’s homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.
Other jurisdictions
have gone so far as to categorically rule that even overwhelming public
perception that homosexual conduct violates public morality does not justify
criminalizing same-sex conduct.[41] European and
United Nations judicial decisions have ruled in favor of gay rights claimants
on both privacy and equality grounds, citing general privacy and equal
protection provisions in foreign and international texts.[42] To the extent that there is much to learn from other jurisdictions that
have reflected on the issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not
formally binding on Philippine courts, may nevertheless have persuasive
influence on the Court’s analysis.
In the area of freedom of expression, for instance,
With respect
to freedom of association for the advancement of ideas and beliefs, in Europe,
with its vibrant human rights tradition, the European Court of Human Rights
(ECHR) has repeatedly stated that a political party may campaign for a change
in the law or the constitutional structures of a state if it uses legal and
democratic means and the changes it proposes are consistent with democratic
principles. The ECHR has emphasized that political ideas that challenge the
existing order and whose realization is advocated by peaceful means must be
afforded a proper opportunity of expression through the exercise of the right
of association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population.[44]
A political group should not be hindered solely because it seeks to publicly
debate controversial political issues in order to find solutions capable of
satisfying everyone concerned.[45]
Only if a political party incites violence or puts forward policies that are
incompatible with democracy does it fall outside the protection of the freedom
of association guarantee.[46]
We do not
doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant.
They are entitled to hold and express
that view. On the other hand, LGBTs and
their supporters, in all likelihood, believe with equal fervor that relationships
between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned,
our democracy precludes using the religious or moral views of one part of the
community to exclude from consideration the values of other members of the
community.
Of course, none of this suggests the
impending arrival of a golden age for gay rights litigants. It well may be
that this Decision will only serve to highlight the discrepancy between the
rigid constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that public
opinion, even at its most liberal, reflect a clear-cut strong consensus
favorable to gay rights claims and we neither
attempt nor expect to affect individual perceptions of homosexuality through
this Decision.
The OSG argues that
since there has been neither prior restraint nor subsequent punishment imposed
on Ang Ladlad, and its members have not been deprived of their right to
voluntarily associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:
There
was no utterance restricted, no publication censored, or any assembly denied.
[COMELEC] simply exercised its authority to review and verify the
qualifications of petitioner as a sectoral party applying to participate in the
party-list system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution.
x
x x x
A
denial of the petition for registration x x x does not deprive the members of
the petitioner to freely take part in the conduct of elections. Their right to
vote will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.
As
to its right to be elected in a genuine periodic election, petitioner contends
that the denial of Ang Ladlad’s petition has the clear and immediate effect of
limiting, if not outrightly nullifying the capacity of its members to fully and
equally participate in public life through engagement in the party list
elections.
This argument is puerile. The holding of a public
office is not a right but a privilege subject to limitations imposed by law. x
x x[47]
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and – as advanced by
the OSG itself – the moral objection offered by the COMELEC was not a
limitation imposed by law. To the
extent, therefore, that the petitioner has been precluded, because of COMELEC’s
action, from publicly expressing its views as a political party and
participating on an equal basis in the political process with other
equally-qualified party-list candidates, we find that there has, indeed, been a
transgression of petitioner’s fundamental rights.
Non-Discrimination
and International Law
In an age that has seen international law evolve geometrically in scope
and promise, international human rights law, in particular, has grown
dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and
governmental support, international human rights norms are particularly
significant, and should be effectively enforced in domestic legal systems so
that such norms may become actual, rather than ideal, standards of
conduct.
Our Decision today is fully in accord with our international obligations
to protect and promote human rights. In particular, we explicitly recognize the
principle of non-discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.
The principle of
non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article
26
All
persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.
In this context, the principle of non-discrimination requires that laws
of general application relating to elections be applied equally to all persons,
regardless of sexual orientation. Although sexual orientation is not
specifically enumerated as a status or ratio for discrimination in Article 26
of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to
“sex” in Article 26 should be construed to include “sexual orientation.”[48] Additionally,
a variety of United Nations bodies have declared discrimination on the basis of
sexual orientation to be prohibited under various international agreements.[49]
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
Likewise, the ICCPR
states:
Article 25
Every citizen shall have
the right and the opportunity, without any of the distinctions mentioned in
article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs,
directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic
elections which shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of the electors;
(c)
To have access, on general terms of
equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
participation is elaborated by the Human Rights Committee in its General
Comment No. 25 (Participation in Public Affairs and the Right to Vote) as
follows:
1. Article 25 of the Covenant recognizes and
protects the right of every citizen to take part in the conduct of public
affairs, the right to vote and to be elected and the right to have access to
public service. Whatever form of constitution or government is in force, the
Covenant requires States to adopt such legislative and other measures as may be
necessary to ensure that citizens have an effective opportunity to enjoy the
rights it protects. Article 25 lies at the core of democratic government based
on the consent of the people and in conformity with the principles of the
Covenant.
x x x x
15. The effective implementation of the right and
the opportunity to stand for elective office ensures that persons entitled to
vote have a free choice of candidates. Any restrictions on the right to stand
for election, such as minimum age, must be justifiable on objective and
reasonable criteria. Persons who are otherwise eligible to stand for election
should not be excluded by unreasonable or discriminatory requirements such as
education, residence or descent, or by reason of political affiliation. No
person should suffer discrimination or disadvantage of any kind because of that
person's candidacy. States parties should indicate and explain the legislative
provisions which exclude any group or category of persons from elective office.[50]
We stress, however, that although this Court stands willing to assume
the responsibility of giving effect to the
At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the
We also hasten to add that not everything that society – or a certain
segment of society – wants or demands is automatically a human right. This is not an arbitrary human intervention
that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that
identifies many social desires as rights in order to further claims that
international law obliges states to sanction these innovations. This has the
effect of diluting real human rights, and is a result of the notion that if
“wants” are couched in “rights” language, then they are no longer controversial.
Using even the most liberal of lenses, these Yogyakarta Principles,
consisting of a declaration formulated by various international law professors,
are – at best – de lege ferenda – and
do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international
law is characterized by the “soft law” nomenclature, i.e., international law is full of principles that promote
international cooperation, harmony, and respect for human rights, most of which
amount to no more than well-meaning desires, without the support of either
State practice or opinio juris.[53]
As a final note,
we cannot help but observe that the social issues presented by this case are
emotionally charged, societal attitudes are in flux, even the psychiatric and
religious communities are divided in opinion.
This Court’s role is not to impose its own view of acceptable behavior.
Rather, it is to apply the Constitution and laws as best as it can,
uninfluenced by public opinion, and confident in the knowledge that our
democracy is resilient enough to withstand vigorous debate.
WHEREFORE, the Petition is
hereby GRANTED. The Resolutions of the Commission on Elections dated
SO ORDERED.
MARIANO
C.
Associate Justice
WE
CONCUR:
REYNATO
S. PUNO
Chief
Justice
|
ANTONIO T. CARPIO Associate
Justice |
RENATO C. CORONA Associate
Justice |
|
CONCHITA CARPIO MORALES Associate
Justice |
PRESBITERO J. VELASCO, JR. Associate
Justice |
|
ANTONIO
EDUARDO B. NACHURA Associate
Justice |
TERESITA J. LEONARDO-DE CASTRO Associate
Justice |
|
ARTURO D. BRION Associate
Justice |
DIOSDADO M. PERALTA Associate
Justice |
|
LUCAS P. BERSAMIN Associate
Justice |
ROBERTO A. ABAD Associate
Justice |
|
MARTIN S. VILLARAMA, JR. Associate
Justice |
JOSE P. PEREZ Associate
Justice |
JOSE
C. MENDOZA
Associate
Justice
CERTIFICATION
Pursuant
to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
[1] 319
[2] Rollo, pp. 33-40.
[3]
[4] An Act Providing For The Election Of Party-List Representatives Through The Party-List System, And Appropriating Funds Therefor (1995).
[5] Rollo, pp. 89-101.
[6] 412 Phil. 308 (2001).
[7] Ang
Ladlad outlined its platform, viz:
As a party-list organization, Ang Ladlad
is willing to research, introduce, and work for the passage into law of
legislative measures under the following platform of government:
a) introduction and support for
an anti-discrimination bill that will ensure equal rights for LGBTs in
employment and civil life;
b) support for LGBT-related and
LGBT-friendly businesses that will contribute to the national economy;
c)
setting up of
micro-finance and livelihood projects for poor and physically challenged LGBT
Filipinos;
d) setting up of care centers
that will take care of the medical, legal, pension, and other needs of old and
abandoned LGBTs. These centers will be set up initially in the key cities of
the country; and
e) introduction and support for bills seeking the repeal of laws used to harass and legitimize extortion against the LGBT community. Rollo, p. 100.
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20] Supra note 6.
[21] It
appears that on
[22]
[23]
[24] Bernas, The 1987 Constitution of the
[25] Estrada
v. Escritor, 455 Phil. 411 (2003), citing
Smith, S., "The Rise and Fall of
Religious Freedom in Constitutional Discourse", 140 University of
[26] 455 Phil. 411 (2003).
[27]
[28] Rollo, p. 315.
[29]
In Anonymous v. Radam,
A.M. No. P-07-2333,
[30] Rollo, pp. 178.
[31]
[32] Civil Code of the
[33] Politics VII. 14.
[34] Abakada Guro Party v. Executive Secretary, G.R. No. 168056, September 1, 2005, 2005, 469 SCRA 1, 139.
[35] In
Bernas, The 1987 Constitution of the
For
determining the reasonableness of classification, later jurisprudence has
developed three kinds of test[s] depending on the subject matter involved. The
most demanding is the strict scrutiny test which requires the government to
show that the challenged classification serves a compelling state interest and
that the classification is necessary to serve that interest. This [case] is
used in cases involving classifications based on race, national origin,
religion, alienage, denial of the right to vote, interstate migration, access
to courts, and other rights recognized as fundamental.
Next is the intermediate
or middle-tier scrutiny test which requires government to show that the
challenged classification serves an important state interest and that the
classification is at least substantially related to serving that interest. This
is applied to suspect classifications like gender or illegitimacy.
The most liberal is the minimum or rational basis scrutiny according to which government need only show that the challenged classification is rationally related to serving a legitimate state interest. This is the traditional rationality test and it applies to all subjects other than those listed above.
[36] 487 Phil. 531, 583 (2004).
[37]
[38] The OSG argues that “[w]hile it is true that LGBTs are immutably males and females, and they are protected by the same Bill of Rights that applies to all citizens alike, it cannot be denied that as a sector, LGBTs have their own special interests and concerns.” Rollo, p. 183.
[39] Article III, Section 4 of the Constitution provides that “[n]o law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”
[40] Supra note 26.
[41] In Bowers v.
Hardwick, 478 U.S.
186
(1986), the US Supreme
Court first upheld the constitutionality of a Georgia
sodomy law that
criminalized oral
and anal sex in private
between consenting adults when applied to homosexuals. Seventeen years later the Supreme Court
directly overruled Bowers in Lawrence v.
Texas, 539 U.S. 558 (2003), holding that "Bowers was
not correct when it was decided, and it is not correct today."
In
Our prior cases make two
propositions abundantly clear. First, the fact that the governing majority in a
State has traditionally viewed a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice; neither history
nor tradition could save a law prohibiting miscegenation from constitutional
attack. Second, individual decisions by married persons, concerning the
intimacies of their physical relationship, even when not intended to produce
offspring, are a form of “liberty” protected by the Due Process Clause of the
Fourteenth Amendment. Moreover, this protection extends to intimate choices by
unmarried as well as married persons.
The present case does not involve
minors. It does not involve persons who might be injured or coerced or who are
situated in relationships where consent might not easily be refused. It does
not involve public conduct or prostitution. It does not involve whether the
government must give formal recognition to any relationship that homosexual persons
seek to enter. The case does involve two adults who, with full and mutual
consent from each other, engaged in sexual practices common to a homosexual
lifestyle. The petitioners are entitled to respect for their private lives. The
State cannot demean their existence or control their destiny by making their
private sexual conduct a crime. Their right to liberty under the Due Process
Clause gives them the full right to engage in their conduct without
intervention of the government. “It is a promise of the Constitution that there
is a realm of personal liberty which the government may not enter.” The
In similar fashion, the European Court of Human Rights
has ruled that the avowed state interest in protecting public morals did not
justify interference into private acts between homosexuals. In Norris v. Ireland, the
The Government are in effect saying that the Court is
precluded from reviewing
x x x The
present case concerns a most intimate aspect of private life. Accordingly,
there must exist particularly serious reasons before interferences on the part
of public authorities can be legitimate x x x.
x x x Although members of the public who regard
homosexuality as immoral may be shocked, offended or disturbed by the
commission by others of private homosexual acts, this cannot on its own warrant
the application of penal sanctions when it is consenting adults alone who are
involved. (Norris v. Ireland (judgment of October 26, 1988, Series A no. 142,
pp. 20-21, § 46); Marangos v. Cyprus (application no. 31106/96,
Commission's report of 3 December 1997, unpublished)).
The
United Nations Human Rights Committee came to a similar conclusion in Toonen v. Australia (Comm. No. 488/1992 U.N. GAOR Hum. Rts. Comm., 50th Sess.,
U.N. Doc. CCPR/c/50/D/488/1992 (1994)), involving a complaint that
Tasmanian laws criminalizing consensual sex between adult males violated the
right to privacy under Article 17 of the International Covenant on Civil and
Political Rights. The Committee held:
x x x it is undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy’ x x x any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.
[42] See Toonen v.
[43] See Fricke v. Lynch, 491 F.
Supp. 381 (1980) and Gay Student Services v.
[44] Case of the United Macedonian
Organisation Ilinden and Others v.
The enjoyment of the rights and
freedoms set forth in [the] Convention shall be secured without discrimination
on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority,
property, birth or other status.
It also found that banning LGBT parades violated the group’s freedom of assembly and association. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.
[45] Case
of Freedom & Democracy Party (OZDEP) v.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and are
necessary in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition
of lawful restrictions on the exercise of these rights by members of the armed
forces, of the police or of the administration of the State. Convention for the Protection of Human Rights
and Fundamental Freedoms, 213 U.N.T.S. 222, entered
into force September 3, 1953, as
amended by Protocols Nos. 3, 5, 8, and 11 which entered into force on September 21,
1970, December 20, 1971, January 1,
1990, and November 1, 1998, respectively.
* Note
that while the state is not permitted to discriminate against homosexuals,
private individuals cannot be compelled to accept or condone homosexual conduct
as a legitimate form of behavior. In
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston, Inc. (515 U.S. 557
(1995)), the US Supreme Court discussed whether anti-discrimination
legislation operated to require the organizers of a private St. Patrick’s
Day parade to include among the marchers an Irish-American gay, lesbian, and
bisexual group. The court held that private citizens organizing a public
demonstration may not be compelled by the state to include groups that impart a
message the organizers do not want to be included in their demonstration. The
court observed:
“[A]
contingent marching behind the organization’s banner would at least bear
witness to the fact that some Irish are gay, lesbian, or bisexual, and the
presence of the organized marchers would suggest their view that people of
their sexual orientations have as much claim to unqualified social acceptance
as heterosexuals x x x. The parade’s organizers may not believe these
facts about Irish sexuality to be so, or they may object to unqualified social
acceptance of gays and lesbians or have some other reason for wishing to keep
GLIB’s message out of the parade. But whatever the reason, it boils down to the
choice of a speaker not to propound a particular point of view, and that choice
is presumed to lie beyond the government’s power to control.”
So,
too, in Boy Scouts of America v. Dale
(530 U.S.
640
[2000]), the US Supreme Court held that the Boy Scouts of America could not be
compelled to accept a homosexual as a scoutmaster, because “the Boy Scouts
believe that homosexual conduct is inconsistent with the values it seeks to
instill in its youth members; it will not “promote homosexual conduct as a
legitimate form of behavior.”
When an expressive organization is compelled to associate with a person whose views the group does not accept, the organization’s message is undermined; the organization is understood to embrace, or at the very least tolerate, the views of the persons linked with them. The scoutmaster’s presence “would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”
[47] Rollo, pp. 197-199.
[48] In Toonen v. Australia, supra note 42, the Human Rights Committee noted that “in its view the reference to ‘sex’ in Articles 2, paragraph 2, and 26 is to be taken as including sexual orientation.”
[49] The Committee on Economic, Social and Cultural
Rights (CESCR) has dealt with the matter in its General Comments, the
interpretative texts it issues to explicate the full meaning of the provisions
of the Covenant on Economic, Social and Cultural Rights. In General Comments
Nos. 18 of 2005 (on the right to work) (Committee on Economic, Social and
Cultural Rights, General Comment No. 18: The right to work, E/C.12/GC/18,
November 24, 2005), 15 of 2002 (on the right to water) (Committee on Economic,
Social and Cultural Rights, General Comment No. 15: The right to water,
E/C.12/2002/11, November 26, 2002) and
14 of 2000 (on the right to the highest attainable standard of health)
(Committee on Economic, Social and Cultural Rights, General Comment No. 14: The
right to the highest attainable standard of health, E/C.12/2000/4, August 14,
2000), it has indicated that the Covenant proscribes any discrimination on the
basis of, inter-alia, sex and sexual orientation.
The Committee on the
Rights of the Child (CRC) has also dealt with the issue in a General Comment.
In its General Comment No. 4 of 2003, it stated that, “State parties have the
obligation to ensure that all human beings below 18 enjoy all the rights set
forth in the Convention [on the Rights of the Child] without discrimination
(Article 2), including with regard to ‘‘race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property,
disability, birth or other status’’. These grounds also cover [inter alia]
sexual orientation”. (Committee on the Rights of the Child, General Comment No.
4: Adolescent health and development in the context of the Convention on the
Rights of the Child,
The Committee on the Elimination
of Discrimination Against Women (CEDAW), has, on a number of occasions,
criticized States for discrimination on the basis of sexual orientation. For
example, it also addressed the situation in
[50] General
Comment No. 25: The right to participate in public affairs, voting rights and
the right of equal access to public service (Art. 25)
[51] The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of international principles relating to sexual orientation and gender identity, intended to address documented evidence of abuse of rights of lesbian, gay, bisexual, and transgender (LGBT) individuals. It contains 29 Principles adopted by human rights practitioners and experts, together with recommendations to governments, regional intergovernmental institutions, civil society, and the United Nations.
[52] One example is Principle 3 (The Right to
Recognition Before the Law), which provides:
Everyone has the right to
recognition everywhere as a person before the law. Persons of diverse sexual
orientations and gender identities shall enjoy legal capacity in all aspects of
life. Each person’s self-defined sexual orientation and gender identity is
integral to their personality and is one of the most basic aspects of
self-determination, dignity and freedom. No one shall be forced to undergo
medical procedures, including sex reassignment surgery, sterilization or
hormonal therapy, as a requirement for legal recognition of their gender
identity. No status, such as marriage or parenthood, may be invoked as
such to prevent the legal recognition of a person’s gender identity. No one
shall be subjected to pressure to conceal, suppress or deny their sexual
orientation or gender identity.
States shall:
a) Ensure that all persons are accorded legal
capacity in civil matters, without discrimination on the basis of sexual
orientation or gender identity, and the opportunity to exercise that capacity,
including equal rights to conclude contracts, and to administer, own, acquire
(including through inheritance), manage, enjoy and dispose of property;
b) Take
all necessary legislative, administrative and other measures to fully respect
and legally recognise each person’s self-defined gender identity;
c) Take
all necessary legislative, administrative and other measures to ensure that
procedures exist whereby all State-issued identity papers which indicate a
person’s gender/sex — including birth certificates, passports, electoral
records and other documents — reflect the person’s profound self-defined gender
identity;
d) Ensure that such procedures are efficient,
fair and non-discriminatory, and respect the dignity and privacy of the person
concerned;
e) Ensure that changes to identity documents
will be recognized in all contexts where the identification or disaggregation
of persons by gender is required by law or policy;
f) Undertake targeted programmes to provide social support for all persons experiencing gender transitioning or reassignment. (Emphasis ours)
[53] See Pharmaceutical and Health Care Association of the Philippines v. Secretary of Health, G.R. No. 173034, October 9, 2007, 535 SCRA 265, where we explained that “soft law” does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice. It is, however, an expression of non-binding norms, principles, and practices that influence state behavior. Certain declarations and resolutions of the UN General Assembly fall under this category.