COMMENTARY: Is there such a thing as a legal sex change?

The issue of transgender rights has always been a sensitive topic even to someone within the community.

Contrary to popular belief, a gay is different from a transgender. Gays are men who have sex and relations with other men. Calling a transgender woman as gay will get you in an uncomfortable intellectual debate with intellectual transgenders like Mimi and Sass or earn the wrath of Gender Proud advocate Geena Rocero.

 

Ordinary people would often scratch their heads in confusion. Does it even matter? Bakla naman lahat iyan. My initial impulse would be to dismember the person asking this question. But I would be reminded that we have already criminalized murder and cruelty is an aggravating circumstance. So I will just explain.

 

A gay man is attracted to a male of the same sex. They may act soft, dress like women or even aspire to be in women’s roles, but they are still gay if they consider themselves male. They see their penis as part of their body, recognize the needs of the male and have no problem admitting that fact. They may be straight-acting (discreet) or effeminate. Some may like wearing make-up but when asked, they will always see themselves as male. A cross-dresser may be gay or even straight.

 

A transgender woman does not consider her gender as male. Never. She was born male, she grew trying to be male to conform with the sex assigned at birth. Some had to live up to societal standards of being male.

However, a transgender considers her gender as sex. She wakes up dreading every moment she is in a male body. She loathes the idea that she has a penis. She is like a prisoner trapped in a body that is not hers. The rule applies to a man who is born a woman and is also suffering from being born in a wrong body.

 

Is it a psychological condition? Well, I am not a doctor but I believe that it is not just psychological but physiological as well. Recent comparisons of the brain activity of heterosexual and transgender brains show remarkable differences. In short, the transgender brain is different from a heterosexual brain. So, in most cases, a transgender has to transition to the gender that they consider as their correct gender. 

 

When a transgender transitions and changes his or her sex, does the Philippine legal system give them the option to change their sex legally similar to countries like the United States, France and many other developed states?

Sadly, that is a matter our laws do not provide for. The Civil Code provides that legal personality including gender is determined by birth.  In short, if you are born physically a male, you are forever male in the eyes of Philippine laws.

Even if you are a Filipino male who transitions to a woman, your legal status will still be male. To a transgender who has achieved a personal victory of transitioning, this is a painful fact. For them, the scalpel’s blade is nothing compared to the pain of legal indifference.

 

But do we legally allow change of sex where a person’s condition is the basis that allowed him or her the legal relief? The answer is YES. May Cagandahan po ang batas natin diyan!

 

Before 2005, the law only allowed change of sex on pure errors of registration, like when a baby boy was born but some careless person recorded the sex as female. The boy becomes a man and decides to marry only to find out that he cannot marry his girlfriend because he is legally female. 

 

However, the Supreme Court, in one of the few rare moments of judicial activism, allowed an intersex to change his sex from female to male in the case of Republic vs. Cagandahan. The case was significant because it was the first time a physiological condition was justified as a reason to change the sex and all the legal implications like name (from Jennifer to Jeff) and rights.

 

Jeff was born a female named Jennifer who suffered from Congenital Adrenal Hyperplasia (CAH). It is a condition where a person exhibits both male and female characteristics or what we call “hermaphrodism”.

At a young age, he had a clitoris but it was bulging, and he had a small ovary. But during puberty, Jeff began to evolve into a man. The ovaries stopped growing, he did not develop breasts and he did not menstruate.
 

The Supreme Court allowed Jennifer to become Jeff because even if he was born female, he produced male hormones to the point that he had two organs and he had to chose one gender. In this case, he chose the gender he was not born with when he reached the age of majority. 

 

The basis of the ruling is the compassion of law to conditions of intersexuality. Instances where a person's body has both sexes. Examples are ovo-testes, micropenis, vaginal agenesis, Kallman’s syndrome and Klinefelter’s syndrome. Klinefelter’s Syndrome (KaS) is particularly interesting because this takes on a similar struggle with that of a transgender woman.

 

Someone I know personally recently discovered he suffers from the disorder. He was born male, but he grew up not feeling male. He was weak and had poor motor skills and performed badly in sports. He began to develop breasts like any girl. There was itchiness in his areolas. He does not have an Adams apple. He also noticed that every month, he would have days he will have pimple outbreaks. Growing up, people often mistook him for a girl.

KaS is not inherited. It is an anomaly where there are extra female chromosomes in someone who is born male. An ordinary female is XX and an ordinary male is XY. A person who has KaS has either XXY or XXXY or XXXXY in different variations.

 

If the Supreme Court will allow Cagandahan to be male because of the Chronic Adrenal Hyperplasia, which is a condition of intersexuality, is there a way that it will allow the same right to other intersexuals? Perhaps. If it can prove that the condition creates the same dilemma as Cagandahan, the court should grant the same compassion.

 

Will this compassion extend to the transgenders? I submit the law should apply the same level of understanding. While CAH and Klinefelters are genetic causes, it is my personal conviction that transgenders have a brain physiology that makes them act and think in the manner that they do. It is not a psychological condition that may be influenced by experiences but something someone was born with. 

 

How can you explain a 65 year-old successful athlete, who has proven everything there is to prove as a man, yet still wants to transition to become a woman? Perhaps because it is difficult to forget something you were born with.

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