SC: Only Congress can allow change of sex on birth certificate

In a decision penned by then Associate Justice Renato Corona, the First Division of the Supreme Court on October 22, 2007 denied for lack of merit the petition of Rommel Jacinto Dantes Silverio to change his name and sex in his birth certificate. (Silverio v. Republic, G.R. No. 174689, October 22, 2007) Read more: EARL VICTOR L. ROSERO, GMA News (2015). PHL laws need revision to allow same-sex marriage —Atty. Kapunan. https://www.gmanetwork.com/news/news/nation/511498/phl-laws-need-revision-to-allow-same-sex-marriage-atty-kapunan/story.

"Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as Rommel Jacinto Dantes Silverio in his certificate of live birth (birth certificate). His sex was registered as male," the court recalled.

The court also said that Silverio "further alleged that he is a male transsexual, that is, anatomically male but feels, thinks and acts as a female and that he had always identified himself with girls since childhood."

Silverio underwent sex reassignment surgey in Bangkok, Thailand in January 2001.

He wanted his first name changed from Rommel Jacinto to "Mely".

Judge Felixberto Olalia Jr of the Regional Trial Court in Manila ruled in Silverio's favor in June 2003, but the Office of the Solicitor General appealed the decision. In February 2006, the Court of Appeals set aside Olalia's decision. Silverio appealed to the Supreme Court.

The SC said, “RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioners first name for his declared purpose may only create grave complications in the civil registry and the public interest.”

RA 9048 is the Clerical Error Law.

The high court also said Silverio's birth certificate “contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.”

The court said further that the country does not have a special law on sex reassignment and its effects. “This is fatal to petitioners cause.”

"Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term sex as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category female," the court said.

The remedies Silverio seeks only Congress can grant, the court also said.

"Petitioner pleads that [t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams. No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts." Read more: EARL VICTOR L. ROSERO, GMA News (2015). PHL laws need revision to allow same-sex marriage —Atty. Kapunan. https://www.gmanetwork.com/news/news/nation/511498/phl-laws-need-revision-to-allow-same-sex-marriage-atty-kapunan/story.

WHAT THE COURT SAID

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman. One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female. To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted. (Silverio v. Republic, G.R. No. 174689, October 22, 2007)

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it. (Silverio v. Republic, G.R. No. 174689, October 22, 2007)

In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based. (Silverio v. Republic, G.R. No. 174689, October 22, 2007)

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege. (Silverio v. Republic, G.R. No. 174689, October 22, 2007)

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress. (Silverio v. Republic, G.R. No. 174689, October 22, 2007)

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts. (Silverio v. Republic, G.R. No. 174689, October 22, 2007)