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PHL laws need revision to allow same-sex marriage —Atty. Kapunan


Unlike in the US, where a decision from the US Supreme Court legalized same-sex marriage in all fifty states, laws will have to be changed and public consultations will have to be held in Congress for same-sex marriage to legalized in the Philippines, according to Atty Lorna Kapunan.

Kapunan, who had represented a transgender client who wanted to be legally recognized as a female in his civil registry, explained during a phone interview with GMA News Online that the path to legalized same-sex marriage will be a long one, though she also said current law allowed some members of the lesbian-gay-bisexual-and transgender (LGBT) community to get married.

While the Family Code of the Philippines prohibits same-sex marriage, Kapunan said a gay man and a lesbian may get married. She added that a transgender male and a transgender female may also get married.

“Your gender at birth is your gender forever,” Kapunan said as she recalled a transgender case she handled but lost some years ago.
 
She said her transgender client wanted the gender stated in his birth certificate changed from male to female. Her client wanted legal recognition as female.

The US Supreme Court ruled on Friday, 5-4, that the US Constitution's guarantees of due process and equal protection under the law meant that states could not ban same-sex marriages.
 
Justice Anthony Kennedy, writing on behalf of the court, said the hope of gay people intending to marry "is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

Immediate reaction among Filipinos to the US Supreme Court ruling favoring same-sex marriage across America, has been mixed, with some totally in favor and some firmly against.






 

Study and consultations
 
Atty. Kapunan said there are related issues that have yet to be addressed, including divorce, which is prohibited in the Philippines.
 
Same-sex marriage “needs further study”, according to Kapunan, and has to go through public consultations because there are laws, including the Family Code of the Philippines, which must be amended to allow same-sex marriage.
 
The Family Code expressly states that “marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life.”
 
Kapunan said the “permanent union” stated in this law means “no divorce” and that “a man and a woman” means the gender of the contracting parties “at birth”.

Atty. Kapunan said those who favor same-sex marriage might find some support in international law.
 
There is a United Nations "Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages" which entered into force on December 9, 1964 two years after it was ratified via UN General Assembly resolution on November 1962.
 
"Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution," the convention states.
 
The convention provides that "(n)o marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law."




Back in October 2014, former UP College of Law dean Pacifico Agabin said the Family Code of the Philippines needed updating, especially its provisions on marriage.
 
"The Family Code's concept of marriage as a contract between a man and a woman aside from being obsolete, violates the equal protection clause of the Constitution," Agabin said during the professorial lecture of retired Supreme Court Associate Justice Jose Vitug at the Court of Appeals.
 
"In my opinion, to bar the lesbians, the gays, the transsexuals and homosexuals from the civil right to marry would violate the guarantee of equal protection," Agabin also said.
 
Pending petition before PHL high court
 
Only last May 19, a teacher and lawyer, Jesus Nicardo Falcis III, petitioned the Philippines' Supreme Court to declare unconstitutional the Family Code provision banning same-sex marriage.
 
Falcis asked the tribunal to nullify the portions of Article 1 and 2 of the Family Code that define and limit marriage as between a man and a woman. He said those provision violated Section 1, Article III and Section 3 (1), Article XV of the 1987 Philippine Constitution.
 
Falcis also wanted the SC to nullify portions of Article 46 (4) and 55 (6) of the Family Code that mentioned lesbianism or homosexuality as grounds for annulment and legal separation.
 
"I filed the petition because it is the very reason why I studied and took up law to challenge unconstitutional and oppressive laws," Falcis told reporters last May 26.
 
Falcis passed the October 2014 bar examination and took his oath as one of the country's newest lawyers only last April 24.
 
"The fight for equality cannot wait. As soon as I passed the bar, I started preparing to write the petition. The longer time passes the longer gays are discriminated," he added.
 
He said the Civil Registrar-General, named as respondent in the petition, should be restrained from enforcing the portions of the Family Code on processing applications for and in issuing marriage licenses against homosexual couples.
 
Asked to comment on the petition, Atty. Kapunan said the petitioner must prove to the Supreme Court that he has “standing to sue” so that his petition will prosper.
 
She said “standing to sue” in Falcis' case means he should have had an application for a marriage license that was denied or disapproved.

The 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.
 
"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."

HB 3179

There is one bill, HB 3179, that addresses "property rights and obligations of two persons of the same sex that opted to cohabitate with each other." 
 
It was filed on October 17, 2013 and referred to the House committee on revision of laws on November 18 that same year.  According to the House website, it has not moved since.
 
Albay Rep. Edcel "Grex" B. Lagman is the principal author of the bill.
 
"In the Philippines, wherein the traditional culture is still very much embedded in the social fabric and the church has a certain degree of influence to the state affairs, gay marriage has no place in the government agenda," Lagman said.
 
He added in the bill's explanatory note: "But sooner of later, time will come when the Congress must face and debate on the issue of same sex marriage."

A search of the Philippine Senate's website yielded no counterpart bill nor bill that seeks to allow same-sex marriage.

There are 22 House Bills seeking to amend the Family Code, but none of them seek to legalize same-sex marriage. The 22 bills are mostly about the status of children, divorce, domestic violence, and marriage with foreign nationals.

According to Justice Vitug, Articles 147 and 148 of the Family Code, which govern the property relationship between couples without the benefit of marriage, should be extended to include LGBTs.
 
"(The idea of extending property rights to LGBTs) is something not entirely new here. Tsaka mayroon tayong ibang laws. We have joint ventures. We have partnerships which are there already. So it is not totally new," he added.
 
And in case a petition on the matter reaches the Supreme Court, Vitug urged the magistrates to rule on whether same-sex marriages could actually include property relationships.
 
"If this goes to the Supreme Court, they cannot deny a decision because there should be law. It is possible that they may touch on that property relationship," Vitug said.

Surveys say

On gays and lesbians, a survey conducted by the Social Weather Stations in June 2013, but which were made public only In February 2015, found that some 85 percent of Filipinos believe gays and lesbians have the right to be protected against any form of discrimination.
 
When asked “Just like me, gays and lesbians also have the right to be protected against any form of discrimination [Tulad ko, ang mga bakla, lesbiyana o tomboy ay may karapatan ding proteksyonan laban sa kahit na anong uri ng diskriminasyon],” 85 percent agreed, five percent disagreed, and 10 percent were undecided.

In another December 2013 survey, the SWS said that "(a)mong men, the dominant opinion in all areas was that there is definitely no possibility of (them) being in a same sex relationship: 97% in Metro Manila, 96% in Balance Luzon, 95% in Mindanao, and 93% in the Visayas."
 
The findings about women were almost the same, "with those saying there is definitely no possibility for a same sex relationship at 98% in Metro Manila, 97% in Balance Luzon, 93% in Mindanao, and 91% in the Visayas."

The SWS said the likelihood of men being in a same sex relationship is "highest among class E, with 11% saying there is at least some possibility (% some possibility and % big possibility) of getting in such a relationship, followed by class ABC at 5% and class D at 4%."

In a statement on Saturday, Danton Remoto, chairman of LGBT Party List (formerly Ladlad Party List) called the US Supreme Court decision a lodestar for LGBTs around the world.

"It touches the very heart of same-sex relationships: that now you can marry and live with the one you love, your union protected by the legal mantle of the state. The Philippines has anti-discrimination bills filed in Congress since 1998; it's time to pass them into law," he said.
— with Mark Merueñas and Joel Locsin/DVM/LBG/JDS, GMA News

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