HUMAN RIGHTS AND SEXUAL ORIENTATION

See - https://www.manilatimes.net/2019/09/06/opinion/analysis/position-paper-on-human-rights-and-sexual-orientation/611990/


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POSITION PAPER ON HUMAN RIGHTS AND SEXUAL ORIENTATION
BY THE MANILA TIMES
SEPTEMBER 06, 2019

Philippine College of Jurisconsults

First of two parts

Lately, some have advanced as human rights the many and varied claims of those who identify themselves as members of the LGBTQ+ sector — lesbians, gays, bi-sexuals, transsexuals, queer and others. Is it, for one, a human right, for government and establishments to treat as “women” those who wish to identify themselves as such, regardless of anatomy, physiology and chromosomes? Is it a human right to use the facilities of the gender with which one identifies oneself?

As the Philippine College of Jurisconsults consisting of scholars and researchers on the law — Philippine law, international law, canon law, Shari’ah and comparative law — our position will endeavor to be non-sectarian and reliant purely on juridical sources.

What are human rights?

There is hardly any more exhaustive exposition of a secular understanding of human rights than in the Separate Opinion of Mr. Justice Reynato S. Puno (later on Chief Justice) in the case of Republic v. Sandiganbayan (2003).

“Similar to natural rights and civil rights, human rights as the refurbished idea of natural right in the 1940s, eludes definition. The usual definition that it is the right which inheres in persons from the fact of their humanity seemingly begs the question. Without doubt, there are certain rights and freedoms so fundamental as to be inherent and natural such as the integrity of the person and equality of persons before the law, which should be guaranteed by all constitutions of all civilized countries and effectively protected by their laws. It is nearly universally agreed that some of those rights are religious toleration, a general right to dissent and freedom from arbitrary punishment. It is not necessarily the case, however, that what the law guarantees as a human right in one country should also be guaranteed by law in all other countries. Some human rights might be considered fundamental in some countries, but not in others. For example, trial by jury which we have earlier cited as an example of a civil right which is not a natural right, is a basic human right in the United States protected by its constitution, but not so in Philippine jurisdiction. Similar to natural rights, the definition of human rights is derived from human nature, thus understandably not exact. The definition that it is a ‘right which inheres in persons from the fact of their humanity,’ however, can serve as a guideline to identify human rights. It seems though that the concept of human rights is broadest as it encompasses a human person’s natural rights (e.g., religious freedom) and civil rights created by law (e.g. right to trial by jury).”

A human right therefore is a claim a person can legitimately make arising from the fact of his or her humanity. It is claim that reason warrants. It is what a human person can rightfully demand of others for the flourishing of human existence.

Surveying the prevailing concepts on human rights, the Supreme Court, in Simon v. Commission on Human Rights (1994), summarized the consensus thus:

“Human rights are the basic rights which inhere in man by virtue of his humanity. They are the same in all parts of the world, whether the Philippines or England, Kenya or the Soviet Union, the United States or Japan, Kenya or Indonesia…

“Human rights include civil rights, such as the right to life, liberty and property; freedom of speech, of the press, of religion, of academic freedom, and the rights of the accused to due process of law; political rights, such as the right to elect public officials, to be elected to public office, and to form political associations and engage in politics; and social rights, such as the right to an education, employment and social services.

“Human rights are the entitlement that inhere in the individual person from the sheer fact of his humanity…. Because they are inherent, human rights are not granted by the State but can only be recognized and protected by it.

“[Human rights include all] the civil, political, economic, social and cultural rights defined in the Universal Declaration of Human Rights.

“Human rights are rights that pertain to man simply because he is human. They are part of his natural birth, right, innate and inalienable.”

Clearly, therefore, from the vantage point of the law, human rights should be so compelling and patent to reason as being consequent upon the fact of our humanity that their violation constitutes a transgression of the dignity and worth of a human person. In this same case, the high court roundly rejected the contention that the demolition of sari-sari stores belonged to the class of human rights violations!

Sexual orientation and gender identification

By nature, human persons are born either as male or female. Genuine cases of hermaphroditism need not bother us here, as these are extremely rare and there are adequate provisions in medical practice as well as in the law for dealing with them. By nature, therefore, the person does not choose his or her gender.

The fact is that there is much about the human person that is not subject to choice. Parentage is among these, and from these follow the legal consequences of citizenship or nationality and even race and ethnicity. There is no such thing as the right to change race, or the right to deprive parents of their status as parents, no matter that one may dislike them. There is no right, because there is no choice on these matters.

It is significant that in such a modern charter of human rights as the European Convention on Human Rights, the right to choose one’s gender or to attempt to alter it are nowhere recognized as human rights.

Obviously, neither does such a fundamental document as the Universal Declaration on Human Rights, nor its enacting treaty, the Covenant on Civil and Political Rights. In fact, the legitimate struggle for what many call “gender equality” or the fair and equitable treatment of women is intelligible only against the factual background of a real and legally recognized distinction between men and women!

In deciding that there was no legal warrant for changing an entry in one’s certificate of live birth in respect to sex following sexual reassignment surgery, the Supreme Court ruled in Silverio v. Republic (2007):

“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.

“The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status… include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.” (Emphasis supplied)
A person’s sex, the Court rules, is a constituent of his status. In short, it is the position of Philippine law and jurisprudence that it is not one of a person’s rights to cause “sexual reassignment” and to compel recognition by the State of such a supposed change in “status.”

The argument that the decision about one’s gender lies within the realm of privacy, within the ambit of a person’s free decision, is belied by a holistic, philosophical approach to Philippine law.

Section 14 of Article II of the Constitution proclaims State recognition of the “role of women in nation-building” and guarantees “the fundamental equality before the law of women and men.” Such a proposition presupposes the real distinction between men and women. If it were not so, every assertion about equality of men and women before the law would not make sense.

And when Section 12 “recognizes the sanctity of family life,” it is obvious that “family,” at the time of the writing of the Constitution, meant and was ordained to mean the permanent union between man and woman. Aside therefore from articulating a state policy of upholding the family, the same section implies society’s reliance on men remaining men and women remaining women, for if genders could be switched as a matter of right and with ease, the very union that the Constitution takes to be of fundamental and primordial significance to both society and polity would cease to have any correspondence with fact.

To be continued on Saturday

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