National laws and policies for human rights protection

Laws and Policies

The constitution provides various guarantees that can have a great relevance for upholding the human rights of transgender people.
Its overarching mandate is articulated in many statutes and policies, reinforcing that these are rights that are ideally capable of being
claimed and utilized.

Equal protection and due process clause (Philippine constitution)

The 1987 Philippine Constitution in its Article on State Policies indicates that “The State values the dignity of every human person
and guarantees full respect for human rights.” Apart from this, the constitution enshrines in its Due Process and Equal Protection
clauses that “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the
equal protection of the laws.” As the supreme law of the land, the guarantees on equality, lawful processes, and the paramount
consideration on ensuring human dignity and respect for human rights in these provisions serve as the basis for many of the activist
endeavors in making government and its agencies accountable to Filipino transgender and LGB people.

The Magna Carta of Women (Republic Act 9710)

This landmark legislation enacted on 14 August 2009 comprehensively legislated state policies that sought to “eliminate
discrimination against women by recognizing, protecting, fulfilling and promoting the rights of Filipino

Women, especially those in marginalized sector.”52 Unlike many other laws on gender, the Magna Carta of Women (MCW)
explicitly included the term “sexual orientation” as a prohibited basis of discrimination. While it did not cover gender identity
explicitly, the inclusion of sexual orientation was significant and has implications in practice for transgender people.

The Magna Carta of Women provided for clear mandates to certain government agencies and local government units to adopt
gender mainstreaming via creation of gender and development focal points, generation/ maintenance of gender statistics and
allocation of budget for gender programs. The overall monitoring and oversight of activities are performed by the Philippine
Commission on Women (PCW).

The MCW explicitly provided that the cost of the implementation of the Gender and Development (GAD) programs shall be at least
5% of the government offices or agencies’ total budget, although the way the budget is used in reality varies tremendously.
Pertinent to this report, experience on the ground have seen some local government agencies using it for LGBT summits to “consult”
the local community, including transgender people in their locality, about potential Anti-Discrimination Ordinances. This may or may
not result in any policy change or progress on drafting ordinances. In most other cases, the summits are used for planning for the
particular agency’s Gender and Development Plan or agenda.

While there is no law that explicitly defines who is a “woman”, the implementation of gendered provisions in laws or related policies
remain based on a person’s assigned sex at birth. So while it is clear in the law that the MCW will protect all women, in practice,
government agencies will not include transgender women. Conversely, agencies may consider that transgender men are included,
based on their assigned sex at birth. In addition, transgender men are typically reluctant to access services that require them to
identify as female or to disclose that they are transgender, particularly if they fear that this will result in further discrimination.

Women’s Edge Plan: The gender equality plan for the Philippines

In 2013, PCW led the development of the Women’s Empowerment, Development and Gender Equality Plan (Women’s EDGE Plan)
for 2013-2016 in consultation with other agencies and civil-society organizations. It is “the gender equality guiding plan of the
Philippine Development Plan”53 (PDP) 2011-2016.”54 Despite the fact that the PDP did not explicitly mention the LGBT sector as an
area for “inclusive growth”, the Women’s EDGE Plan included a chapter on LGBT people.

“It is the first national sectoral plan in the country that has a specific section on LGBT rights and issues, with focus on LGBTs’
(including LGBT children and Persons with Disability) access to health services, employment opportunities, education, housing, and
justice. Gender-based violence experienced by LGBTs was also highlighted, including hate crimes, and corrective rape.”

In addition, the Women’s EDGE Plan included strategies, targets, and indicators for achieving its goals for the LGBT sector.56 It
considered how the lack of laws that would recognize the civil status of transgender people affects their ability to access rights and
government services. An example given was a case where a transgender woman was ordered to appear more masculine for a
passport photo. Although she didn’t have to comply at the end her picture was taken “amidst the scornful looks of other applicants
and Department personnel.”

However, while looking at these policies closely, implementation of the strategies are still ongoing and not all targets have been
met. There has been only sporadic progress in passing the Anti-Discrimination Bill, including many of the versions that have been
proposed since the 1990s. This leaves transgender people without any national protection from discrimination on the grounds of
gender identity or gender expression.

Sensitivity trainings for government personnel: Nagna carta of women and Philippine national police reform and reorganization
Act of 1998 (RA 8551)

Interviews conducted for this report identified that some agencies have had Gender Sensitivity Trainings58 for their personnel to be
more gender-fair in providing services to the public. The PCW was even tasked under RA 855159 to develop a module for the
establishment of equal opportunities for women in the PNP, the prevention of sexual harassment in the workplace, and the
prohibition of discrimination on the basis of gender or sexual orientation. Compared to the past, government agencies have become
relatively more versed in protecting and promoting women’s rights but remain less informed and have insufficient understanding of
gender identity and expression issues, particularly on how they impact on transgender people. This means that gender sensitivity
training is focused almost solely on cisgender (non-transgender) women’s rights.

Relevant institutional mechanisms

Under the Magna Carta of Women, the Commission on Human Rights is authorized to act as the Gender and Development Ombud.
Fleshing out this duty, the Implementing Rules and Regulations (IRR) to the MCW state that:

“It shall advocate for the promotion and protection of women’s human rights, strengthen its Human Rights Education program,
investigate violations including those committed by private institutions or by private individuals, monitor compliance, and
recommend appropriate measures to the Civil Service Commission or to the concerned department of the government for
its effective implementation.”60

The 2016 Gender and Development Ombud Guidelines 61 spell out the Commission on Human Rights responsibilities for this role.
Importantly, they explicitly state that this includes investigating complaints from “persons of diverse sexual orientation and gender
identity and expression”. This is despite the fact that the Magna Carta of Women, itself is silent on this point. The guidelines
explicitly note that the Commission on Human Rights’ work shall “be guided by the nine core treaties (eight of which the Philippines
is a State Party) as well as with the Yogyakarta Principles”.

With respect to transgender men, the Commission provides a caveat for their inclusion in the Gender Ombud Guidelines, as it
“depends on their willingness to invoke Magna Carta of Women provisions and shall be subject to further consultation with
transgender men organizations.”62

The Commission on Human Rights realized that its ‘Manual on Investigation’ did not provide guidelines for handling
cases/complaints from people based on sexual orientation, gender identity or expression. The commission responded by adding a
clear protocol precisely for cases that involved person of diverse sexual orientation, gender identity or expression to guide work of
their investigators, lawyers, and information officers. The Center for Gender Equality and Women’s Human Rights of the
Commission clarified that while there remain gaps in the extent to which Commission investigators are aware of and sensitive to
SOGI issues, this remains a priority for the Commission’s ongoing efforts. For example, at the time of writing, the intake form for
complaints has yet to be edited and so investigators are instructed to ask for the complainant’s preferred name and to put an
asterisk on the person’s legal name. In terms of documentation, however, the legal name is still the one that is maintained in the
computerized records.

Law Enforcement

Probably as a result of many civil society engagements, the Philippine National Police has made some improvements in its gender
policies over recent years.

Interviews conducted with the Women and Children Protection Center of the Philippine National Police64 indicate that their Case
Investigators’ Trainings contain a module on SOGI, equipping police sensitivity in dealing with people of diverse sexual orientation
and gender identities. The Center was unclear as to the frequency or consistency of this training. In addition, the head of the
Department clarified that while the Women and Children Protection Desks will not accept complaints of violence reported by
transgender women, their children however can access the desks. Since there is no policy on cases of transgender women, such
complaints will still be received and dealt with only in the complaint desks available to the general public. As one of the most
vulnerable groups prone to violence, this creates additional barriers for transgender women when they report gender-based
violence and ‘hate crimes65’. Transgender men, on the other hand, would be able to file under these desks because they are viewed
as “women” by the police, according to the interview.

Inquiring as to availability of disaggregated data on any cases lodged by transgender men, the head of the office indicated that they
possess no data that are comprehensive enough, at this point in time.

Transgender women in the City of Aragao, Cagayan Valley66through dialogues with the police, were able to use the Women and
Children Protective Desks to lodge their complaints. Allowing for the possibility that efforts with local police could provide some
redress. courts and lawyers While a cursory survey of a few of the Mandatory Continuing Legal Education (MCLE) providers67
yielded a few subjects on LGBT rights, very little else has been done in the legal field to deepen understanding of the causes and
legal concerns of transgender people. Most likely due to the absence of legal cases, discussions in the sessions are mostly on
terminologies, rather than on legal concerns including gender recognition.

With regard to the judiciary, in 2012, focus group discussions were conducted among the LGBT community and the judges and court
personnel in partnership with the Philippine Judicial Academy (PHILJA). The aim was to call attention to the gaps and areas in judicial
decisions that needed revisiting, particularly the Supreme Court rulings on name and gender marker changes. The focus groups also
enabled the judiciary to glimpse how their decisions affect the experiences of the LGBT community. 68While the event aimed to
integrate SOGI analysis into future training curriculum at PHILJA, contacts with the Office of the Court Administrator in the Supreme
Court and in PHILJA confirm that there continue to be no specific modules for SOGI training.

Today, terminologies and concepts are covered within subjects on gender, case studies, and small workshops on sensitivity. Anti-
discriminatory laws and policies This section describes examples of laws that prohibit certain acts of discrimination that are
applicable to the experiences of transgender people in the different spheres of their lives. 1. violence and discrimination Against
transgender youth in education a. Anti-Bullying Act of 2013 The Anti-Bullying Act of 2013 (Republic Act 10627) includes gender-
based bullying as a prohibited and punishable act. Gender-based bullying is defined by the implementing rules and regulations as
“any act that humiliates or excludes a person on the basis of perceived or actual sexual orientation and gender identity (SOGI).”69
The constraint in this law is that it only penalizes bullying between and among students and does not cover bullying perpetrated by
school personnel. Based on the Department of Education’s data, in 2014, 6363 cases of bullying were reported in both public and
private schools. This accounts to a 21% rise compared to 2013. 70 b. Child Protection Policy 2012

In cases where the bullying is committed by a Principal or a teacher or any other school personnel, a complaint can be filed
administratively via the Department of Education Order No. 40 on Child Protection Policy. This policy includes the protection of
students from any form of violence regardless of their sexual orientation or gender identity.

Given that the Department of Education has access to cases filed under the Anti-Bullying Law and violations of the Department of
Education Order, it would be in the best position to have and maintain disaggregated data on this matter. Unfortunately, they do not
maintain disaggregated records, therefore there would be no way of knowing how many of the bullying cases filed involved actual or
perceived transgender youth, or other persons of diverse SOGI.71 c. Special Protection of Children Against Child Abuse, Exploitation,
and Discrimination Act of 1992 (Anti-Child Abuse Act)

Parents of children who suffer abuse at the hands of teachers or members of the school’s administration can also file a criminal case
under the RA 7610 or the Anti-Child Abuse Act. This option exists even during the pendency of the administrative case mentioned
earlier. Such cases can cover instances of physical, psychological injury, or cruelty on the basis of the child’s SOGI. As the following
example shows, the effective use of this law to protect gender non-conforming children depends largely on judicial understanding of
gender expression and gender identity. In the July 2016 case of People v. Penonia in Cagayan De Oro City, the trial court agreed with
a principal’s actions in punishing a child’s gender expression, ruling that this did not amount to child abuse.

Department of Education Department Order 45: On school uniforms (2008)

In 2008, the Department of Education issued Department Order (DO) 45 that stated “the wearing of a school uniform shall not be
required in public schools.”73

In cases of transgender children and youth whose access to education in public schools is hindered by the schools’ uniform policies,
this should be a policy that students are able to invoke. It may also be valuable for other students, including some students, where
there is a clash between the relevant school uniform policy and their gender expression. Despite this provision, however, many
cases of discrimination experienced by transgender students are related to school uniform policies. This has significant implications
given that the right to education is often essential in order to realize other human rights.

Violence and discrimination against transgender people in the work place a. The Labor Code (PD 442) 1974

The Labor Code is the national employment law for the private sector in the Philippines. With the exception of prohibitions against
discrimination of women, it does not contain any provision that prohibits discrimination on the basis of gender identity. While the
law is silent on gender identity and expression, it is clear in its Declaration of Basic Policy (article 3) that the “State shall afford
protection to labor, promote full employment, ensure equal work opportunities.” The mandate for equal opportunity in
employment is clear. However, the reality shows a different picture since many transgender people encounter hardship in accessing
work opportunities because of discrimination75. The lack of national law that explicitly prohibits discrimination on the basis of SOGI
makes it easier for employers to hide behind fabricated reasons for not accepting, firing, or depriving LGBT people of their
employment benefits. Often, policies on uniform, documents, and use of comfort rooms are used against transgender applicants
and employees, being within the so-called “management prerogative”.

LGBT Applicants to government service

The Civil Service exam is the test that someone who wants to enter into government service must take and pass. A transgender
woman attending one of the events of Rainbow Rights in 2010 complained of preemployment discrimination in the taking of the
Civil Service exam. An examiner would not let her take the exam because there was a conflict between her appearance and her
identification document that bore masculine name. A Civil Service Commission (CSC) officer attending the same event brought the
matter to the attention of their head office. In the same year, the Commission issued its Guidelines in the Processing, Verifying, and
Handling of the Applications for Civil Service Examinations of LGBT Applicants82. These guidelines require any applicant who has
changed his/her physical appearance or physical sex to conform with his/her gender identity or orientation” to submit an
authenticated copy of their birth certificate “to establish his/her sex identity.”83

This should provide a means for transgender people to verify their identity and therefore take the Civil Service Examinations.
However, it does add an additional procedural requirement for transgender people that other applicants do not need to fulfil. This
could mean that transgender people are turned away from the exam because they do not have their birth certificates on the day of
the exam. In the absence of clear antidiscrimination protections, it may also make a transgender applicant more vulnerable to
discrimination.

Interviews conducted for this research revealed frontline services were not familiar with these guidelines or any other policy related
to transgender or LGB people, or of more recent applications by transgender people. Civil Service Commission personnel stated they
would not discriminate against a transgender applicant provided that the ID card used to apply is the same ID that the person will
show on the examination day.84 However, staff interviewed pointed out that if the person in charge of processing applications
considered the ID to be “suspicious”, the applicant could still be asked to produce a birth certificate.85 Such provisions, and the
subjective nature of such ‘suspicions’, are likely to have a disproportionate impact on transgender people. c. Civil Service
Commission’s Policy on Anti-Sexual Harassment

The Civil Service Commission Administrative Disciplinary Rules on Sexual Harassment Cases includes other less grave, punishable
offences. These include prohibiting “derogatory and degrading remarks or innuendoes directed toward the members of one’s sex, or
one’s sexual orientation or used to describe a person”. This Rule applies to all government entities that fall under the Civil Service
jurisdiction. 87 The policy is important because, unlike the Republic Act 7877 or the Anti-Sexual Harassment Law of 1995, the policy
explicitly covers derogatory remarks regarding sex, sexual orientation, or other remarks that are used as description of a person with
the intention to insult. In addition, unlike the Sexual Harassment Law, this policy for government agencies does not require that the
offender has moral ascendancy over the victim. The fact that the perpetrator and the victim are of the same level or position will not
preclude the victim from filing a case. While gender identity is not specifically mentioned as a ground, if a transgender civil servant is
harassed verbally by coworkers, they would be able to rely on the generic protection from “derogatory and degrading remarks”. d.
Civil Service Commission’s Uniform Policy

Interviews conducted in government agencies about the Civil Service Rules reveal that though there are mandated uniforms, the
rules are not consistently applied as this is widely dependent on the culture of leniency in each agency. In the Department of Social
Work and Development for example, a transgender woman who is a civil servant is free to wear the clothing she wants to wear. In
the Philippine Statistics Authority, transgender men and women with a masculine gender expression are free to wear the male-
issued uniforms. A Civil Service Commission official interviewed for this report said there have been no formal requests to wear
clothes that differ from the person’s assigned sex and that civil servants are not precluded from making such a request.88 However,
without clear anti-discrimination protections, it is likely that many transgender people would be reluctant to make such requests,
fearing employment discrimination. This concern was raised in the interviews. Overall, it was remarked that there is more leniency in
allowing people whose assigned sex at birth is female to wear masculine clothes than for someone assigned male at birth to wear
feminine clothes. e. Civil Service Commission’s Policy on Accessing Restrooms

There is no standard policy or legal protection enabling people to use gender-segregated bathrooms, toilets, or changing rooms
based on their gender identity (or gender expression). Interviews with government agencies indicated more flexibility among offices
that are catering to gender-related concerns, such as the PCW, than in other government offices. Similar to the nuance in the
uniform policy, in practice, there is more flexibility enabling transgender people who are assigned female at birth to access the
comfort room of their choice. f. Diversity and Inclusivity Policies

While there are many accounts of discrimination in Business Process Outsourcing industries like call centers, it is still important to
note that at the time of writing, there have been some multinational companies engaging in such areas of business that have
diversity and inclusion programs in place. Mostly because their parent companies located elsewhere in the world mandate diversity,
the local counterparts then establish clear non-discrimination policies on the basis of SOGI on matters of hiring, promotion, access to
benefits, and organizing. A few even allow for partners of non-married employees to access “partner health benefits” despite the
national law being silent on this.89 B. local legislations: Anti-discrimination ordinances The national Anti-Discrimination Bill has been
stuck in the Lower House of Congress since first filed in 2000. Therefore, activists and allies have lobbied for anti-discrimination
ordinances in select cities, towns, and municipalities instead. As of 5 November 2016, Dr Eric Julian Manalastas90 has tracked that
there are now 3 provinces, 12 cities, 1 municipality, and 3 barangays with their own ordinances.

d. pertinent court decisions about sexual orientation Some court decisions involving lesbian, gay or bisexual people may also have
relevance to transgender people, particularly if being transgender is erroneously deemed synonymous to being gay or lesbian such
that a transgender man is considered to be female and lesbian, and a transgender woman is considered to be male and gay. The
Philippines does not criminalize homosexual relations. In the case of City of Manila v Laguio119, the Supreme Court upheld adults’
right to privacy and included the right to have sexual relations in the confines of their private lives. In the Gualberto v CA case of
2005120, in a custody dispute between a husband and wife, the Supreme Court awarded custody of a 4-year old child to his mother
despite the father’s argument of immorality against his wife who was “allegedly” in a lesbian relationship. This was primarily
because the court gives preferential custody to a mother when the child is below 7 years of age in the absence of a showing of her
unfitness to be a mother.

This latter decision may have implications if a transgender man with a child under the age of 7 was involved in a similar custody case.
This would be a win for him as a parent but a loss in terms of not recognizing him as a male. In the same vein, a transgender woman,
who will only be seen legally as a father will not be recognized as a female or mother. This is likely to exclude her from being granted
custody of a child below the age of 7.

A. criminal laws Article 200 of the Revised Penal Code149 on Grave Scandal penalizes any person who shall “offend against decency
or good customs by any highly scandalous conduct”. Due to the subjectivity of the determination of what offends decency and good
customs, this provision has been used against transgender women and gay men when they are seen in the streets. The cases are
rarely pursued and prosecuted, but, arrests and detentions under such provisions have been known to occur.

Article 201 b of the Revised Penal Code also prohibits exhibition of “indecent or immoral plays, scenes, acts or shows” including
those that are “contrary to law, public order, morals, and good customs”. 150 Raids conducted in entertainment establishments
frequented by transgender women and gay men often lead to arrests of the clientele and not the owners who, in the strict
application of the law, are the actual violators of this law.

Article 172 of the Revised Penal Code penalizes falsification of documents by private individuals.151 Accounts from transgender men
indicate that there were instances where the Land Transportation Office agents would indicate in their online records for driver’s
license, without asking them, a gender marker of male resulting in the printed version of the license to contain a male gender
marker152. The concern is how this will affect transgender men possessing these driver’s licenses legally, particularly when they
renew. However, in an interview in the Land Transportation Office153, it was clarified that the charge of falsification will not apply to
these incidences given that the ones who entered the data were LTO agents, not the transgender men themselves. Comparing it
with discrepancies on birthdates, agents would more likely consider this a typographical error and not a case where one seeks to
defraud. B. criminal system Transgender women in the prison system are detained separately, when there are spaces available. With
prison overcrowding as a major issue in the Philippines, this is rare. Generally, transgender women are often mixed with male
inmates, where many abuses occur as illustrated in the instance below. On the other hand, transgender men are placed with women
prisoners in consideration of their “safety”.

Within the context of accountability, the State has an obligation to respect, protect and fulfil human rights. The respect of
transgender people’s human rights encompasses the obligation to refrain from doing actions that violate those human rights. These
include that States cannot criminalise gender expression, or put abusive eligibility criteria in place for legal gender recognition.
States also have positive obligations to protect people’s human rights (for example, against discriminatory practices), and also to
fulfil them, by putting all necessary legislative, budgetary and other measures in place.