Silverio vs. Republic, 537 SCRA 373, G.R. No. 174689 October 19, 2007
When is a man a man and when is a woman a woman?
In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex?
May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?
Silverio vs. Republic, 537 SCRA 373, G.R. No. 174689 October 19, 2007
G.R. No. 174689. October 19, 2007.
ROMMEL JACINTO DANTES SILVERIO, petitioner, vs. REPUBLIC OF THE PHILIPPINES, respondent.
Ponente: CORONA, J.:
Topics: Change of Name, Clerical Error Law (RA 9048), Sex Change, Statutory Construction, Status, Civil Register Law (Act 3753), Marriage, Separation of Powers, Judicial Legislation
Doctrines:
The State has an interest in the names borne by individuals and entities for purposes of identification; A change of name is a privilege, not a right.
RA 9048 now governs the change of first name, and vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned; The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied—in sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial.
A change of name does not alter one’s legal capacity or civil status—RA 9048 does not sanction a change of first name on the ground of sex reassignment.
A petition in the trial court in so far as it prays for change of first name is not within that court’s primary jurisdiction as the petition should be filed with the local civil registrar concerned, namely, where the birth certificate is kept.
No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment; Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error—it is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.
No reasonable interpretation of Art. 407 of the Civil Code can justify the conclusion that it covers the correction on the ground of sex reassignment; To correct simply means “to make or set aright; to remove the faults or error from” while to change means “to replace something with something else of the same kind or with something that serves as a substitute.”
“Status” refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership.
A person’s sex is an essential factor in marriage and family relations—it is a part of a person’s legal capacity and civil status; There is no such special law in the Philippines governing sex reassignment and its effects.
Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth—thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant; Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable.
When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent; The words “sex,” “male” and “female” as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary; Sex is defined as “the sum of peculiarities of structure and function that distinguish a male from a female” or “the distinction between male and female”; The words “male” and “female” in everyday understanding do not include persons who have undergone sex reassignment; While a person may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason.
To grant the changes in name and sex 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).
Article 9 of the Civil Code which mandates that “[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law” is not a license for courts to engage in judicial legislation; 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.
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; The Supreme Court cannot enact a law where no law exists.
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, but the remedies involve questions of public policy to be addressed solely by the legislature, not by the courts.
Petitions for adoption and change of name have no relation to each other, nor are they of the same nature or character, much less do they present any common question of fact or law—in short, they do not rightly meet the underlying test of conceptual unity demanded to sanction their joinder under the Rules. (Republic vs. Hernandez, 253 SCRA 509 [1996])
The touchstone for the grant of a change of name is that there be proper and reasonable cause for which the change is sought. Legitimate children shall principally use the surname of their father. (Republic vs. Court of Appeals, 300 SCRA 138 [1998])
The subject of rights must have a fixed symbol for individualization which serves to distinguish him from all others—this symbol is his name. (Republic vs. Capote, 514 SCRA 76 [2007]) Silverio vs. Republic, 537 SCRA 373, G.R. No. 174689 October 19, 2007
Facts:
When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. “Oh North Wind! North Wind! Please let us out!,” the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man “Malakas” (Strong) and the woman “Maganda” (Beautiful). (The Legend of Malakas and Maganda)
Petitioner Rommel JACINTO DANTES SILVERIO filed a petition for the change of his first name and sex in his birth certificate in the RTC. The petition, impleaded the civil registrar of Manila as respondent.
The trial court rendered a decision in favor of petitioner.
The Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the CA.
It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.
The CA rendered a decision in favor of the Republic. It ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery.
Thus, the CA granted the Republic’s petition, set aside the decision of the trial court and ordered the dismissal of the Case.
Petitioner moved for reconsideration but it was denied. Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.
ISSUE:
WON Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity. - NO
HELD:
NO.
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. xxx These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted.
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.
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.
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.
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.
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.
WHEREFORE, the petition is hereby DENIED.