FACTS OF THE CASE

Silverio and his American fianc decided to get married but his
marriage will only be possible under Philippine Laws if he will be declared
as a woman; however, Silverio waa assigned male at birth. Although born
male, he felt as if he was a woman trapped inside a mans body.
Silverio was able to transform himself into a woman by undergoing a
Sex Reassignment Surgery1. After surgery, he petitioned to the court for
the change of his first name and sex in his birth certificate. Ultimately, the
Supreme Court of the Philippines denied his petition. In its ruling, the court
asserted that the changes sought by the petitioner will have serious and
wide-range legal and public policy consequences. Furthermore, the court
asserted that marriage, one of the most sacred social institutions, is a
special contract of permanent union between man and a woman. One of
its essential requisites is the legal capacity of the contracting who must be
a male and a female2.
In behalf of Silverio, we submit this communication to the
International Covenant on Civil and Political Rights for their
consideration and recommendation provided under Articles 13 and 24 of
the Optional Protocol to the International Covenant on Civil and
Political Rights.

THE PROPER FORUM

1 http://www.surgeryencyclopedia.com/Pa-St/Sex-Reassignment-Surgery.html
2 Article 2(1), Family Code of the Philippines.
3 Art. 1: A State Party to the Covenant that becomes a Party to the present
Protocol recognizes the competence of the Committee to receive and consider
communications from individuals subject to its jurisdiction who claim to be
victims of a violation by that State Party of any of the rights set forth in the
Covenant. No communication shall be received by the Committee if it concerns a
State Party to the Covenant which is not a Party to the present Protocol.
4 Art. 2: Subject to the provisions of article 1, individuals who claim that any of
their rights enumerated in the Covenant have been violated and who have
exhausted all available domestic remedies may submit a written communication
to the Committee for consideration.

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Q: Which Treaty monitoring body (or bodies), may Silverio file a

communication to question the decision? What Treaty allows the filing of
said communication?
A: The case of Silverio may not be communicated to the the ASEAN
Human Rights System5 since it has yet to establish mechanisms for
reporting, enforcement, and compliance . The proper forum where Silverio
may file his complaint against the State (Philippines) to the United
Nations Human Rights Office of the High Commissioner for Human
Rights (OHCHR).
The list below6 are the treaty bodies under the United Nations Human
Rights, Office of the High Commissioner for Human Rights (OHCHR), which
monitors International Human Rights and is composed of independent
experts that monitor the implementation of core international human
rights treaties. Each State which is a party to a treaty has an obligation to
ensure that steps are undertaken for the enjoyment of rights set forth in
the treaties:
1. Human Rights Committee (CCPR) monitors implementation of the
International Covenant on Civil and Political Rights (1966) and its
optional protocols;
2. Committee on Economic, Social and Cultural Rights (CESCR)
monitors implementation of the International Covenant on
Economic, Social and Cultural Rights (1966);
3. Committee on the Elimination of Racial Discrimination (CERD)
monitors implementation of the International Convention on the
Elimination of All Forms of Racial Discrimination (1965);
4. Committee on the Elimination of Discrimination against
Women (CEDAW) monitors implementation of the Convention on
the Elimination of All Forms of Discrimination against Women (1979)
and its optional protocol (1999);
5. Committee against Torture (CAT) monitors implementation of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment (1984);
6. Committee on the Rights of the Child (CRC) monitors
implementation of the Convention on the Rights of the Child (1989)
and its optional protocols (2000);
7. Committee on Migrant Workers (CMW) monitors implementation
of the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families (1990);
5 2012 ASEAN Human Rights Declaration of Phnom Penh
6 http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx

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8. Committee on the Rights of Persons with Disabilities (CRPD)

monitors implementation of the International Convention on the
Rights of Persons with Disabilities (2006);
9. Committee on Enforced Disappearances (CED) monitors
implementation of the International Convention for the Protection of
All Persons from Enforced Disappearance (2006); and
10.
The Subcommittee on Prevention of Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment (SPT)
established pursuant to the Optional Protocol of the Convention
against Torture (OPCAT) (2002) visits places of detention in order to
prevent torture and other cruel, inhuman or degrading treatment or
punishment.
Of the ten (10) committees, eight (8) (CCPR, CERD, CAT, CEDAW, CRPD,
CED, CESCR and CRC) may receive and consider individual complaints or
communications from individuals under certain conditions.
Any person or third party may lodge a complaint against a state to
any of the committees mentioned above provided that their respective
countries have ratified or acceded to the treaties. 7 The Philippines, being
one of the first countries to vote in favor of the Universal Declaration of
Human Rights (UDHR) on 10 December 1948, also ratified the
following: ICCPR, CAT, CERD, CESR, CMW, CRC, CRPD, and CEDAW.
In the case at bar, Silverios complaint is a question of his/her right
to marriage under Article 16 of the UDHR which states:
Article 16.
1. 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;
7 Anyone can lodge a complaint with a Committee against a State: (1) That is party to
the treaty in question (through ratification or accession) providing for the rights which
have allegedly been violated; (2) That accepted the Committees competence to
examine individual complaints, either through ratification or accession to an Optional
Protocol (in the case of ICCPR, CEDAW, CRPD, ICESCR and CRC) or by making a
declaration to that effect under a specific article of the Convention (in the case of CERD,
CAT, CED and CMW).
Complaints may also be brought by third parties on behalf of individuals, provided they
have given their written consent (without requirement as to its specific form). In certain
cases, a third party may bring a case without such consent, for example, where a person
is in prison without access to the outside world or is a victim of an enforced
disappearance. In such cases, the author of the complaint should state clearly why such
consent cannot be provided.
http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx

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2. Marriage shall be entered into only with the free and full consent of
the intending spouses;
3. The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State.
And also under Article 23 of the International Covenant on Civil
and Political Rights which provides:
Article 23.
1. The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State;
2. The right of men and women of marriageable age to marry
and to found a family shall be recognized;
3. No marriage shall be entered into without the free and full consent
of the intending spouses; and
4. States Parties to the present Covenant shall take appropriate steps
to ensure equality of rights and responsibilities of spouses as to
marriage, during marriage and at its dissolution. In the case of
dissolution, provision shall be made for the necessary protection of
any children.
Although the case may be communicated to the CESR it is deemed
unnecessary under Article 108 of the International Covenant on Economic,
Social and Cultural Rights, which expressly provides for the subject of
consent as to marriage. Silverios case should be submitted to the Human
Rights Committee (CCPR) body for consideration and recommendation.
THE COMMUNICATION
In behalf of my Client, ROMMEL JACINTO DANTES SILVERIO, we
submit this complaint for consideration and recommendation of certain
violations of his Civil Rights committed by respondent state (The Republic
of the Philippines), by denying his petition 9 for the change of First Name
and Sex information in his Certificate of Live Birth, which will allow him to
exercise his right to marriage.
Change of Name
The Supreme Court of the Philippines denied the petition of the
ground that a persons first name could not be changed for the reason of a
8 Article 10. The States Parties to the present Covenant recognize that: (1) x x x
Marriage must be entered into with the free consent of the intending spouses. x
xx
9 Silverio v. Republic, G.R. No. 174689, 22 October 2007.

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sex reassignment. The court asserted that a change of name is a privilege

and not a statutory right.10 Republic Act 9048 under Section 4, (which
amended Art. 376 of the Civil Code of the Philippines) which provides that:
SECTION 4. Grounds for Change of First Name or Nickname.
The petition for change of first name or nickname may be
allowed in any of the following cases:
1. The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult
to write or pronounce;
2. The new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by that first name or nickname in
the community; or
3. The change will avoid confusion.

As to Sex
There is no law in the Philippines permitting the changing of
information with regard to sex since the subject of sex is determined by
birth.11
The Supreme Court held:
x x x Sex is defined as "the sum of peculiarities of structure
and function that distinguish a male from a female"32 or "the
distinction between male and female."33 Female is "the sex
that produces ova or bears young"34 and male is "the sex
that has organs to produce spermatozoa for fertilizing ova."35
10 ART. 376. No person can change his name or surname without judicial
authority. (This Civil Code provision was amended by RA 9048 (Clerical Error
Law).) In particular, Section 1 of RA 9048 provides: SECTION 1. Authority to
Correct Clerical or Typographical Error and Change of First Name or Nickname.
No entry in a civil register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first name or nickname
which can be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations.
11 Section 5 of Act 3753 (the Civil Register Law):

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Thus, the words "male" and "female" in everyday

understanding do not include persons who have
undergone sex reassignment. x x x 12
While petitioner 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. Thus, there is no
legal basis for his petition for the correction or change of the
entries in his birth certificate. x x x13
Equity
The Supreme Court concluded its denial of the petition on the
grounds of equity. The Court of First Instance14 held that the petition was
in consonance with the principles of justice and equity. Although no harm,
injury or prejudice to anyone will happen, the court held against the
change of information holding that the remedies that petitioner sought for
involves questions of public policy to be addressed solely by the
legislature and not by the courts:
x x x 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
petitioners first step towards his eventual marriage to his
male fianc. 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). x x x
x x x These laws underscore the public policy in relation to
women which could be substantially affected if petitioners
petition were to be granted.

12 10 Id
13 10 id
14 Regional Trial Court of Manila, Branch 8 (SP Case No. 02-105207)

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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.15
By Denying Silverios right to change his civil information, his right
to marriage was consequently denied. The Philippines does not legally
recognize same-sex marriages, civil unions or domestic partnerships as
supported by the above-mentioned provisions of law and jurisprudence.
Guaranteed Rights
Citing the Preamble
Rights16,

of the Universal Declaration on Human

Whereas recognition of the inherent dignity and of the equal

and inalienable rights of all members of the human family is
the foundation of freedom,
in the dignity and worth of the human person and in
the equal rights of men and women and have
determined to promote social progress and better
standards of life in larger freedom.
Article 16 (1):
1. 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;
xxx

Now to the International Covenant on Civil and Political Rights 17,

Preamble:
The States Parties to the present Covenant,

15 10 id.
16 http://www.un.org/en/documents/udhr/index.shtml#a23
17 http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

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Considering that, in accordance with the principles

proclaimed in the Charter of the United Nations,
recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace
in the world,
Recognizing that these rights derive from the inherent
dignity of the human person,
Recognizing that, in accordance with the Universal
Declaration of Human Rights, the ideal of free human
beings enjoying civil and political freedom and
freedom from fear and want can only be achieved if
conditions are created whereby everyone may enjoy
his civil and political rights, as well as his economic, social
and cultural rights,
Considering the obligation of States under the Charter of
the United Nations to promote universal respect for,
and observance of, human rights and freedoms,
Realizing that the individual, having duties to other individuals
and to the community to which he belongs, is under a
responsibility to strive for the promotion and
observance of the rights recognized in the present
Covenant,
Agree upon the following articles:
Article 23:
1. The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State;
2. The right of men and women of marriageable age to
marry and to found a family shall be recognized
3. No marriage shall be entered into without the free and full
consent of the intending spouses;
4. States Parties to the present Covenant shall take
appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage, during
marriage and at its dissolution. In the case of dissolution,
provision shall be made for the necessary protection of any
children.
THE VIOLATIONS

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According to the Universal Declaration on Human Rights18 and

the International Covenant on Civil and Political Rights, 19 it
guarantees every person, in recognition of its inherent dignity, an
inalienable right to family since it is the foundation of freedom, Justice and
Peace in the World.
Humanitys attempt to pursue equal rights have led us to the
conclusion that all people have a common goal to achieve social progress
and better standards of life. It is deemed a sacred and protected human
right acknowledged by the members of the United Nations. The
Declaration of Human Rights does not limit the marriage between a man
and a woman and States should therefore ensure the proliferation of
equality of rights.
The decision of the Supreme Court in the case at bar trampled upon
the right to marriage which resulted in the denial of his petition to change
his information in the Certificate of Live Birth.

18 Art. 16(1)
19 Art. 23

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