There’s an interesting discussion started by Prosec. Ann Tugbang-Torres: “Do you think there should be a law allowing persons who have undergone a sex re-assignment surgery to also change the entry in their Certificates of Live Birth to conform with their current sex?” The way I see it, the issue on allowing a change in gender (as appearing in the Birth Certificate) by reason of sex change is linked with the issue of same-sex marriage.
First off, let me say that the beauty of seemingly useless academic discussions, such as this, is the exercise that comes with it. You get to explore the subject matter even before the need to discuss it, which means you are prepared should the issue crop up. There’s a more important reason: based on my experience, this kind of discussion elicits helpful and brilliant insights from everyone. With that in mind, let’s proceed to skin the cat, so to speak.
There is no law governing sex reassignment and its effects. While there is no law banning sex reassignment, there are existing laws governing names and the Civil Registry. We know that the Supreme Court turned down a petition for change of name (under the circumstances, not a typographical error which may be changed without court proceedings) by reason of sexual re-assignment surgery, commonly called sex-change operation. A change of gender/sex entry (a substantial change that requires court action) in the Birth Certificate by reason of sex-change is also not allowed because a person’s sex — male or female — is determined at birth.
In other words, so long as existing laws are not amended — a power exclusively lodged in Congress — any person who successfully undergoes a sex-change operation cannot, but reason of the sex-change, successfully ask for the revision of the gender/sex and name appearing in the Birth Certificate or Certificate of Live Birth.
Congress has the power to enact laws regulating sexual re-assignment surgery. I don’t see any serious constitutional challenge to that, although a case can definitely be crafted to question such a move. This new law can narrowly limit itself to the regulation of sex-change operations, without allowing changes in the gender appearing in the birth registry. However, this new law can very well amend or change existing laws, including laws governing names and the Civil Registry. For instance, the new law may provide that a person who’ve successfully undergone sex-change may ask the court to have certain entries (like gender and name) in the Birth Certificate changed (for convenience, let’s call these changes “Sex-change Amendments”).
A challenge on this new law, which concerns an individual and what the individual seeks to do with his/her OWN body, may come from a slightly different quarter — marriage and family. There is every reason to believe that the legal effects of sexual re-assignment surgeries, specifically any change in the sex/gender reflected in the Birth Certificate, would be questioned using the Constitutional provisions on the family as the foundation of the State, on marriage as the foundation of the family, and on marriage as an inviolable social institution.
Let’s put it this way, same-sex marriage is not recognized in the Philippines, yet this explosive issue can be circumvented by the Sex-change Amendments. With the logical change brought about by any move to allow the change of gender in the Birth Certificate, someone who used to be a man, now a “woman”, may subsequently marry another man. This would still be consistent with the existing law on marriage, the Family Code, which defines marriage as a union between a man and a woman.
The requirement for marriage to be a union between a man and a woman is spelled out in a law, the Family Code, and not expressly provided in the Constitution itself. The Constitution does NOT say that marriage must be between a man and a woman. The Constitution does NOT say that the “woman” should not be a previous man who’ve successfully undergone sex reassignment surgery. The Constitution does NOT say that one’s gender is fixed at birth and, for purposes of marriage, can never be changed.
On the other hand, the Constitution does say that marriage is an inviolable social institution. And this social institution, at the time when the Constitution was crafted (this one, I’m pretty certain) and as intended by the framers (I could be wrong, of course), requires a biological man and a biological woman (fill in the arguments and counter-arguments about child-bearing capacity, etc.). This social institution, as the Constitution provides, is inviolable. Any move to dilute this social institution should not be allowed.
In sum, this is a very interesting (and contentious) issue. There are strong arguments on both sides of the fence. In my modest opinion (and until I stumble upon facts/arguments that would make me change my mind), there are serious constitutional issues against any move to allow a change in the sex/gender, as appearing in the Birth Certificate, by reason of sex reassignment surgery.