SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
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)
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?
On November 26, 2002, petitioner Rommel Jacinto Dantes
Silverio filed a petition for the change of his first name and
sex in his birth certificate in the Regional Trial Court of
Manila, Branch 8. The petition, docketed as SP Case No.
02-105207, impleaded the civil registrar of Manila as
respondent.
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."
He 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.1 Feeling trapped in a man’s body, he consulted
several doctors in the United States. He underwent
psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a
"woman" culminated on January 27, 2001 when he
underwent sex reassignment surgery2 in Bangkok,
Thailand. He was thereafter examined by Dr. Marcelino
Reysio-Cruz, Jr., a plastic and reconstruction surgeon in
the Philippines, who issued a medical certificate attesting
that he (petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact
engaged to be married. He then sought to have his name
in his birth certificate changed from "Rommel Jacinto" to
"Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published
in the People’s Journal Tonight, a newspaper of general
circulation in Metro Manila, for three consecutive
weeks.3 Copies of the order were sent to the Office of the
Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements
were established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also
presented Dr. Reysio-Cruz, Jr. and his American fiancé,
Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in
favor of petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade
any law or judgment or any infraction thereof or for
any unlawful motive but solely for the purpose of
making his birth records compatible with his
present sex.
The sole issue here is whether or not petitioner is
entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the
petition would be more in consonance with the
principles of justice and equity. With his sexual [re-
assignment], petitioner, who has always felt,
thought and acted like a woman, now possesses
the physique of a female. Petitioner’s misfortune
to be trapped in a man’s body is not his own doing
and should not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury
[or] prejudice will be caused to anybody or the
community in granting the petition. On the
contrary, granting the petition would bring the
much-awaited happiness on the part of the
petitioner and her [fiancé] and the realization of
their dreams.
Finally, no evidence was presented to show any
cause or ground to deny the present petition
despite due notice and publication thereof. Even
the State, through the [OSG] has not seen fit to
interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered
GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries
appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioner’s first name from
"Rommel Jacinto" to MELY and petitioner’s
gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines
(Republic), thru the OSG, filed a petition for certiorari in the
Court of Appeals.6 It alleged that there is no law allowing
the change of entries in the birth certificate by reason of sex
alteration.
On February 23, 2006, the Court of Appeals 7 rendered a
decision8 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 Court of Appeals granted the Republic’s petition, set
aside the decision of the trial court and ordered the
dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 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 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the
Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for
his petition for change of name and sex. As found by the
trial court:
Petitioner filed the present petition not to evade
any law or judgment or any infraction thereof or for
any unlawful motive but solely for the purpose
of making his birth records compatible with
his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical
features of a female, he became entitled to the civil registry
changes sought. We disagree.
The State has an interest in the names borne by individuals
and entities for purposes of identification.11 A change of
name is a privilege, not a right.12 Petitions for change of
name are controlled by statutes.13 In this connection, Article
376 of the Civil Code provides:
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.
RA 9048 now governs the change of first name.14 It vests
the power and authority to entertain petitions for change of
first name to the city or municipal civil registrar or consul
general concerned. Under the law, therefore, jurisdiction
over applications for change of first name is now primarily
lodged with the aforementioned administrative officers. 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.15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum, the
remedy and the proceedings regulating change of first
name are primarily administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of
first name may be allowed:
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.
Petitioner’s basis in praying for the change of his first name
was his sex reassignment. He intended to make his first
name compatible with the sex he thought he transformed
himself into through surgery. However, a change of name
does not alter one’s legal capacity or civil status.18 RA 9048
does not sanction a change of first name on the ground of
sex reassignment. Rather than avoiding confusion,
changing petitioner’s first name for his declared purpose
may only create grave complications in the civil registry and
the public interest.
Before a person can legally change his given name, he
must present proper or reasonable cause or any compelling
reason justifying such change.19 In addition, he must show
that he will be prejudiced by the use of his true and official
name.20 In this case, he failed to show, or even allege, any
prejudice that he might suffer as a result of using his true
and official name.
In sum, the petition in the trial court in so far as it prayed for
the change of petitioner’s first name was not within that
court’s primary jurisdiction as the petition should have been
filed with the local civil registrar concerned, assuming it
could be legally done. It was an improper remedy because
the proper remedy was administrative, that is, that provided
under RA 9048. It was also filed in the wrong venue as the
proper venue was in the Office of the Civil Registrar of
Manila where his birth certificate is kept. More importantly,
it had no merit since the use of his true and official name
does not prejudice him at all. For all these reasons, the
Court of Appeals correctly dismissed petitioner’s petition in
so far as the change of his first name was concerned.
No Law Allows The Change of Entry In The Birth
Certificate As To Sex On the Ground of Sex
Reassignment
The determination of a person’s sex appearing in his birth
certificate is a legal issue and the court must look to the
statutes.21 In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in the civil register shall be
changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision
was amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change
of such matters can now be made through administrative
proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the
Rules of Court the correction of such errors.22 Rule 108
now applies only to substantial changes and corrections in
entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or
typographical error" is:
SECTION 2. Definition of Terms. – As used in this
Act, the following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers
to a mistake committed in the
performance of clerical work in writing,
copying, transcribing or typing an entry in
the civil register that is harmless and
innocuous, such as misspelled name or
misspelled place of birth or the like,
which is visible to the eyes or obvious to
the understanding, and can be corrected
or changed only by reference to other
existing record or records: Provided,
however, That no correction must
involve the change of nationality, age,
status or sex of the petitioner. (emphasis
supplied)
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.
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those
provided in Articles 407 and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the
civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that occur
after birth.25 However, no reasonable interpretation of the
provision 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."26 The birth
certificate of petitioner contained no error. All entries
therein, including those corresponding to his first name and
sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil
registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and
naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as
legal separations, annulments of marriage, declarations of
nullity of marriages, adoptions, naturalization, loss or
recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name). These
acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status
and nationality of a person. Their effects are expressly
sanctioned by the laws. In contrast, sex reassignment is not
among those acts or events mentioned in Article 407.
Neither is it recognized nor even mentioned by any law,
expressly or impliedly.
"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.27
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.28 (emphasis supplied)
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. In this connection, Article 413 of the Civil Code
provides:
ART. 413. All other matters pertaining to the
registration of civil status shall be governed by
special laws.
But there is no such special law in the Philippines governing
sex reassignment and its effects. This is fatal to petitioner’s
cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law)
provides:
SEC. 5. Registration and certification of births. –
The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child,
shall be sufficient for the registration of a birth in
the civil register. Such declaration shall be exempt
from documentary stamp tax and shall be sent to
the local civil registrar not later than thirty days
after the birth, by the physician or midwife in
attendance at the birth or by either parent of the
newborn child.
In such declaration, the person above mentioned
shall certify to the following facts: (a) date and
hour of birth; (b) sex and nationality of infant; (c)
names, citizenship and religion of parents or, in
case the father is not known, of the mother alone;
(d) civil status of parents; (e) place where the
infant was born; and (f) such other data as may be
required in the regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a
historical record of the facts as they existed at the time of
birth.29Thus, 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, 30 is
immutable.31
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. In
this connection, 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."33Female 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 Thus, the words "male"
and "female" in everyday understanding do not include
persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which
had at the time a well-known meaning are presumed to
have been used in that sense unless the context compels
to the contrary."36 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."
For these reasons, 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.
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. First,
even the trial court itself found that the petition was but
petitioner’s first step towards his eventual marriage to his
male fiancé. However, marriage, one of the most sacred
social institutions, is a special contract of permanent
union between a man and a woman.37 One of its essential
requisites is the legal capacity of the contracting parties
who must be a male and a female.38 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). Second, there are various laws
which apply particularly to women such as the provisions of
the Labor Code on employment of women,39 certain
felonies under the Revised Penal Code40 and the
presumption of survivorship in case of calamities under
Rule 131 of the Rules of Court,41 among others. 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.
Costs against petitioner.
SO ORDERED.
G.R. No. 174689 October 22 2007 [Change of name or sex]
FACTS:
Rommel Jacinto Dantes Silverio having undergone a sex
reassignment surgery, sought to have his first name
changed from Rommel to Mely, and his sex from male to
female. Trial court granted his petition. CA, however, upon
appeal filed by the Republic of the Philippines thru the
OSG, reversed the trial court decision, holding that there is
no law allowing the change of entries of either name or sex
in the birth certificate by reason of sex alteration.
ISSUE:
Whether or not Rommel's first name and sex be changed
on the ground of sex reassignment.
RULING: No. There is no law authorizes the change of
entry as of sex and first name through the intervention of
sex reassignment surgery. Article 376 of the Civil Code as
amended by RA 9048 (Clerical Error Law), together with
Article 412 of the same Code, change of name or sex in the
birth certificate is allowed by the courts so long as clerical
or typographical errors are involved.
Changes sought by Silverio will have serious legal and
public policy consequences. To grant this petition filed by
Silverio will greatly alter the laws on marriage and family
relations. Second, there will be major changes in statutes
that underscore the public policy in relation to women.
Categories: G.R. No. 174689, Philippine Civil Code
SECOND DIVISION granted the Petition for Correction of Entries in Birth
Certificate filed by Jennifer B. Cagandahan and ordered the
following changes of entries in Cagandahans birth
certificate: (1) the name Jennifer Cagandahan changed to
Jeff Cagandahan and (2) gender from female to male.
REPUBLIC OF G.R. No. 166676
THE PHILIPPINES, The facts are as follows.
Petitioner, On December 11, 2003, respondent Jennifer Cagandahan
Present:
filed a Petition for Correction of Entries in Birth
Certificate[2] before the RTC, Branch 33 of Siniloan,
Laguna.
QUISUMBING, J., In her petition, she alleged that she was born on January
Chairperson, 13, 1981 and was registered as a female in the Certificate
of Live Birth but while growing up, she developed
- versus - CARPIO MORALES, secondary male characteristics and was diagnosed to have
Congenital Adrenal Hyperplasia (CAH) which is a condition
TINGA, where persons thus afflicted possess both male and female
characteristics. She further alleged that she was diagnosed
to have clitoral hyperthropy in her early years and at age
VELASCO, JR., and
six, underwent an ultrasound where it was discovered that
she has small ovaries. At age thirteen, tests revealed that
BRION, JJ. her ovarian structures had minimized, she has stopped
growing and she has no breast or menstrual development.
She then alleged that for all interests and appearances as
well as in mind and emotion, she has become a male
JENNIFER B. Promulgated: person. Thus, she prayed that her birth certificate be
CAGANDAHAN, corrected such that her gender be changed from female to
male and her first name be changed from Jennifer to Jeff.
Respondent.
September 12, 2008 The petition was published in a newspaper of general
circulation for three (3) consecutive weeks and was posted
in conspicuous places by the sheriff of the court. The
Solicitor General entered his appearance and authorized
the Assistant Provincial Prosecutor to appear in his behalf.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - -x To prove her claim, respondent testified and presented the
testimony of Dr. Michael Sionzon of the Department of
DECISION Psychiatry, University of the Philippines-Philippine General
Hospital. Dr. Sionzon issued a medical certificate stating
that respondents condition is known as CAH. He explained
QUISUMBING, J.: that genetically respondent is female but because her body
secretes male hormones, her female organs did not
This is a petition for review under Rule 45 of the Rules of develop normally and she has two sex organs female and
Court raising purely questions of law and seeking a reversal male. He testified that this condition is very rare, that
of the Decision[1] dated January 12, 2005 of the Regional respondents uterus is not fully developed because of lack
Trial Court (RTC), Branch 33 of Siniloan, Laguna, which of female hormones, and that she has no monthly
period. He further testified that respondents condition is
permanent and recommended the change of gender
because respondent has made up her mind, adjusted to her
chosen role as male, and the gender change would be
advantageous to her.
The RTC granted respondents petition in a Decision
dated January 12, 2005 which reads:
The Court is convinced that petitioner has satisfactorily
shown that he is entitled to the reliefs prayed
[for]. Petitioner has adequately presented to the Court very
clear and convincing proofs for the granting of his petition. It
was medically proven that petitioners body produces male
hormones, and first his body as well as his action and
feelings are that of a male. He has chosen to be male. He
is a normal person and wants to be acknowledged and
identified as a male.
WHEREFORE, premises considered, the Civil Register of
Pakil, Laguna is hereby ordered to make the following
corrections in the birth [c]ertificate of Jennifer Cagandahan
upon payment of the prescribed fees:
a) By changing the name from Jennifer
Cagandahan to JEFF CAGANDAHAN; and
b) By changing the gender from female to
MALE.
It is likewise ordered that petitioners school records, voters
registry, baptismal certificate, and other pertinent records
are hereby amended to conform with the foregoing
corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General
(OSG) seeking a reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE
PETITION CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE
RULES OF COURT HAVE NOT BEEN COMPLIED WITH;
AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT
ALLOW CHANGE OF SEX OR GENDER IN THE BIRTH
CERTIFICATE, WHILE RESPONDENTS MEDICAL
CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A MALE.[4]
Simply stated, the issue is whether the trial court erred in
ordering the correction of entries in the birth certificate of
respondent to change her sex or gender, from female to
male, on the ground of her medical condition known as
CAH, and her name from Jennifer to Jeff, under Rules 103
and 108 of the Rules of Court.
The OSG contends that the petition below is fatally
defective for non-compliance with Rules 103 and 108 of the
Rules of Court because while the local civil registrar is an
indispensable party in a petition for cancellation or
correction of entries under Section 3, Rule 108 of the Rules
of Court, respondents petition before the court a quo did
not implead the local civil registrar.[5] The OSG further
contends respondents petition is fatally defective since it
failed to state that respondent is a bona fide resident of the
province where the petition was filed for at least three (3)
years prior to the date of such filing as mandated under
Section 2(b), Rule 103 of the Rules of Court.[6] The OSG
argues that Rule 108 does not allow change of sex or
gender in the birth certificate and respondents claimed
medical condition known as CAH does not make her a
male.[7]
On the other hand, respondent counters that although the
Local Civil Registrar of Pakil, Laguna was not formally
named a party in the Petition for Correction of Birth
Certificate, nonetheless the Local Civil Registrar was
furnished a copy of the Petition, the Order to publish on
December 16, 2003 and all pleadings, orders or processes
in the course of the proceedings,[8] respondent is actually a
male person and hence his birth certificate has to be
corrected to reflect his true sex/gender,[9] change of sex or
gender is allowed under Rule 108,[10] and respondent
substantially complied with the requirements of Rules 103
and 108 of the Rules of Court.[11]
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name
shall present the petition to the Regional Trial Court of the
province in which he resides, [or, in the City of Manila, to
the Juvenile and Domestic Relations Court].
SEC. 2. Contents of petition. A petition for change of name
shall be signed and verified by the person desiring his name
changed, or some other person on his behalf, and shall set
forth:
(a) That the petitioner has been a bona fide resident of the
province where the petition is filed for at least three (3)
years prior to the date of such filing;
(b) The cause for which the change of the petitioner's name
is sought;
(c) The name asked for.
SEC. 3. Order for hearing. If the petition filed is sufficient in
form and substance, the court, by an order reciting the
purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order be
published before the hearing at least once a week for three
(3) successive weeks in some newspaper of general
circulation published in the province, as the court shall
deem best. The date set for the hearing shall not be within
thirty (30) days prior to an election nor within four (4)
months after the last publication of the notice.
SEC. 4. Hearing. Any interested person may appear at the
hearing and oppose the petition. The Solicitor General or
the proper provincial or city fiscal shall appear on behalf of
the Government of the Republic.
SEC. 5. Judgment. Upon satisfactory proof in open court
on the date fixed in the order that such order has been
published as directed and that the allegations of the petition
are true, the court shall, if proper and reasonable cause
appears for changing the name of the petitioner, adjudge
that such name be changed in accordance with the prayer
of the petition.
SEC. 6. Service of judgment. Judgments or orders
rendered in connection with this rule shall be furnished the
civil registrar of the municipality or city where the court
issuing the same is situated, who shall forthwith enter the
same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person interested
in any act, event, order or decree concerning the civil status
of persons which has been recorded in the civil register,
may file a verified petition for the cancellation or correction
of any entry relating thereto, with the Regional Trial Court
of the province where the corresponding civil registry is
located.
SEC. 2. Entries subject to cancellation or correction.
Upon good and valid grounds, the following entries in the
civil register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e) judgments
of annulments of marriage; (f) judgments declaring
marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of citizenship;
(l) civil interdiction; (m) judicial determination of filiation; (n)
voluntary emancipation of a minor; and (o) changes of
name.
SEC. 3. Parties. When cancellation or correction of an entry
in the civil register is sought, the civil registrar and all
persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and publication. Upon the filing of the
petition, the court shall, by an order, fix the time and place
for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition.
The court shall also cause the order to be published once
a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
SEC. 5. Opposition. The civil registrar and any person
having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen (15)
days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. The court in which the
proceedings is brought may make orders expediting the
proceedings, and may also grant preliminary injunction for
the preservation of the rights of the parties pending such
proceedings.
SEC. 7. Order. After hearing, the court may either dismiss
the petition or issue an order granting the cancellation or
correction prayed for. In either case, a certified copy of the
judgment shall be served upon the civil registrar concerned
who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective
for non-compliance with Rules 103 and 108 of the Rules of
Court because respondents petition did not implead the
local civil registrar. Section 3, Rule 108 provides that the
civil registrar and all persons who have or claim any interest
which would be affected thereby shall be made parties to
the proceedings. Likewise, the local civil registrar is
required to be made a party in a proceeding for the
correction of name in the civil registry. He is an
indispensable party without whom no final determination of
the case can be had.[12] Unless all possible indispensable
parties were duly notified of the proceedings, the same
shall be considered as falling much too short of the
requirements of the rules.[13] The corresponding petition
should also implead as respondents the civil registrar and
all other persons who may have or may claim to have any
interest that would be affected thereby.[14] Respondent,
however, invokes Section 6,[15] Rule 1 of the Rules of Court
which states that courts shall construe the Rules liberally to
promote their objectives of securing to the parties a just,
speedy and inexpensive disposition of the matters brought
before it. We agree that there is substantial compliance
with Rule 108 when respondent furnished a copy of the
petition to the local civil registrar.
The determination of a persons sex appearing in his birth
certificate is a legal issue and the court must look to the
statutes. In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in a civil register shall be changed or
corrected without a judicial order.
Together with Article 376[16] of the Civil Code, this provision
was amended by Republic Act No. 9048[17] in so far
as clerical or typographical errors are involved. The
correction or change of such matters can now be made
through administrative proceedings and without the need
for a judicial order. In effect, Rep. Act No. 9048 removed
from the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies only to
substantial changes and corrections in entries in the civil
register.[18]
Under Rep. Act No. 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.[19]
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those
provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the
civil status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil
register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations;
(5) annulments of marriage; (6) judgments declaring
marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13)
civil interdiction; (14) judicial determination of filiation; (15)
voluntary emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that occur
after birth.[20]
Respondent undisputedly has CAH. This condition causes
the early or inappropriate appearance of male
characteristics. A person, like respondent, with this
condition produces too much androgen, a male hormone.
A newborn who has XX chromosomes coupled with CAH
usually has a (1) swollen clitoris with the urethral opening
at the base, an ambiguous genitalia often appearing more
male than female; (2) normal internal structures of the
female reproductive tract such as the ovaries, uterus and
fallopian tubes; as the child grows older, some features
start to appear male, such as deepening of the voice, facial
hair, andfailure to menstruate at puberty. About 1 in 10,000
to 18,000 children are born with CAH.
CAH is one of many conditions[21] that
involve intersex anatomy. During the twentieth century,
medicine adopted the term intersexuality to apply to human
beings who cannot be classified as either male or
female.[22] The term is now of widespread use. According
to Wikipedia, intersexuality is the state of a living thing of
a gonochoristic species whose sex chromosomes,
genitalia, and/or secondary sex characteristics are
determined to be neither exclusively male nor female. An
organism with intersex may have biological characteristics
of both male and female sexes.
Intersex individuals are treated in different ways by different
cultures. In most societies, intersex individuals have been
expected to conform to either a male or female gender
role.[23] Since the rise of modern medical science in
Western societies, some intersex people with ambiguous
external genitalia have had their genitalia surgically
modified to resemble either male or female
genitals.[24] More commonly, an intersex individual is
considered as suffering from a disorder which is almost
always recommended to be treated, whether by surgery
and/or by taking lifetime medication in order to mold the
individual as neatly as possible into the category of either
male or female.
In deciding this case, we consider the compassionate calls
for recognition of the various degrees of intersex as
variations which should not be subject to outright denial. It
has been suggested that there is some middle ground
between the sexes, a no-mans land for those individuals
who are neither truly male nor truly female. [25] The current
state of Philippine statutes apparently compels that a
person be classified either as a male or as a female, but
this Court is not controlled by mere appearances when
nature itself fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a
female, then there is no basis for a change in the birth
certificate entry for gender. But if we determine, based on
medical testimony and scientific development
showing the respondent to be other than female, then a ch
ange in the
subjects birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed
(neither consistently and categorically female nor
consistently and categorically male)
composition. Respondent has female (XX)
chromosomes. However, respondents body system
naturally produces high levels of male hormones
(androgen). As a result, respondent has ambiguous
genitalia and the phenotypic features of a male.
Ultimately, we are of the view that where the person is
biologically or naturally intersex the determining factor in
his gender classification would be what the individual, like
respondent, having reached the age of majority, with good
reason thinks of his/her sex. Respondent here thinks of
himself as a male and considering that his body produces
high levels of male hormones (androgen) there is
preponderant biological support for considering him as
being male. Sexual development in cases
of intersex persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such
persons, like respondent, is fixed.
Respondent here has simply let nature take its course and
has not taken unnatural steps to arrest or interfere with
what he was born with. And accordingly, he has already
ordered his life to that of a male. Respondent could have
undergone treatment and taken steps, like taking lifelong
medication,[26] to force his body into the categorical mold of
a female but he did not. He chose not to do so. Nature has
instead taken its due course in respondents development
to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not
dictate on respondent concerning a matter so innately
private as ones sexuality and lifestyle preferences, much
less on whether or not to undergo medical treatment to
reverse the male tendency due to CAH. The Court will not
consider respondent as having erred in not choosing to
undergo treatment in order to become or remain as a
female. Neither will the Court force respondent to undergo
treatment and to take medication in order to fit the mold of
a female, as society commonly currently knows this gender
of the human species. Respondent is the one who has to
live with his intersex anatomy. To him belongs the human
right to the pursuit of happiness and of health. Thus, to him
should belong the primordial choice of what courses of
action to take along the path of his sexual development and
maturation. In the absence of evidence that respondent is
an incompetent[27] and in the absence of evidence to show
that classifying respondent as a male will harm other
members of society who are equally entitled to protection
under the law, the Court affirms as valid and justified the
respondents position and his personal judgment of being a
male.
In so ruling we do no more than give respect to (1) the
diversity of nature; and (2) how an individual deals with
what nature has handed out. In other words, we respect
respondents congenital condition and his mature decision
to be a male. Life is already difficult for the ordinary
person. We cannot but respect how respondent deals with
his unordinary state and thus help make his life easier,
considering the unique circumstances in this case.
As for respondents change of name under Rule 103, this
Court has held that a change of name is not a matter of
right but of judicial discretion, to be exercised in the light of
the reasons adduced and the consequences that will
follow.[28] The trial courts grant of respondents change of
name from Jennifer to Jeff implies a change of a feminine
name to a masculine name. Considering the consequence
that respondents change of name merely recognizes his
preferred gender, we find merit in respondents change of
name. Such a change will conform with the change of the
entry in his birth certificate from female to male.
WHEREFORE, the Republics petition is DENIED. The hormones (androgen), which is preponderant biological
Decision dated January 12, 2005 of the Regional Trial support for considering him as being male.”
Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No The Supreme Court further held that they give respect to
pronouncement as to costs. (1) the diversity of nature; and (2) how an individual deals
with what nature has handed out. That is, the Supreme
SO ORDERED. Court respects the respondent’s congenital condition and
his mature decision to be a male. Life is already difficult for
the ordinary person. The Court added that a change of
REPUBLIC OF THE PHILIPPINES vs. JENNIFER name is not a matter of right but of judicial discretion, to be
CAGANDAHAN exercised in the light of the reasons and the consequences
GR No. 166676, September 12, 2008 that will follow.
FACTS:
Jennifer Cagandahan filed before the Regional Trial Court
Branch 33 of Siniloan, Laguna a Petition for Correction of
Entries in Birth Certificate of her name from Jennifer B.
Cagandahan to Jeff Cagandahan and her gender
from female to male. It appearing that Jennifer
Cagandahan is sufferingfrom Congenital Adrenal
Hyperplasia which is a rare medical condition where
afflicted persons possess both male
and female characteristics. Jennifer Cagandahan grew up
with secondarymale characteristics. To further her petition,
Cagandahan presented in court the medical
certificateevidencing that she is suffering
from Congenital Adrenal Hyperplasia which certificate is
issued by Dr. Michael Sionzon of the Department of
Psychiatry, University of the Philippines-Philippine General
Hospital, who, in addition, explained that
“Cagandahan genetically is female but because her body
secretes male hormones, her female organs did not
develop normally, thus has organs of both male
and female.” The lower court decided in her favor but the
Office of the Solicitor General appealed before the
Supreme Court invoking that the same was a violation of
Rules 103 and 108 of the Rules of Court because the said
petition did not implead the local civil registrar.
ISSUE:
Whether or not Cagandahan’s sex as appearing in
her birth certificate be changed.
RULING:
The Supreme Court affirmed the decision of the lower
court. It held that, in deciding the case, the Supreme Court
considered “the compassionate calls for recognition of the
various degrees of intersex as variations which should not
be subject to outright denial.” The Supreme Court made
use of the availale evidence presented in court including
the fact that private respondent thinks of himself as a male
and as to the statement made by the doctor that
Cagandahan’s body produces high levels of male