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G.R. No. 174689 – 537 SCRA 373 – 562 Phil. 953 – Remedial Law – Special Proceedings – Rule 103; Change of Name – Gender re-assignment does not merit change of name
Rommel Jacinto Dantes Silverio is a male transsexual. He’s a biological male who feels trapped in a male body. Being that, he sought gender re-assignment in Bangkok, Thailand. The procedure was successful – he (she) now has a female body. Thereafter, in 2002, he filed a petition for the change of his first name (from Rommel to Mely) and his sex (male to female) in his birth certificate. He filed the petition before the Manila RTC. He wanted to make these changes, among others, so that he can marry his American fiancé.
The RTC granted Silverio’s petition. The RTC ruled that it should be granted based on equity; that Silverio’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; that there was no opposition to his petition (even the OSG did not make any basis for opposition at this point); 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 Silverio and [her] fiancé and the realization of their dreams.
Later, a petition for certiorari was filed by the OSG before the CA. The CA reversed the decision of the RTC.
ISSUE: Whether or not the entries pertaining to sex and first name in the birth certificate may be changed on the ground of gender re-assignment.
HELD: No. The Supreme Court ruled that the change of such entries finds no support in existing legislation.
Issue on the change of first name
In 2001, Republic Act 9048 (AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER) was passed. This law provides that it should be the local civil registrar that has jurisdiction in petitions for the change of first names and not the regular courts. Hence, the petition of Silverio insofar as his first name is concerned is procedurally infirm. Even assuming that the petition was filed properly, it cannot be granted still because the ground upon which it is based (gender re-assignment) is not one of those provided for by the law. Under the law, a change of name may only be grounded on the following:
(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.
Unfortunately, Silverio did not allege any of the above, he merely alleged gender re-assignment as the basis.
Issue on the change of sex
This entry cannot be changed either via a petition before the regular courts or a petition for the local civil registry. Not with the courts because there is no law to support it. And not with the civil registry because there is no clerical error involved. Silverio was born a male hence it was just but right that the entry written in his birth certificate is that he is a male. The sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error, is immutable.
But what about equity, as ruled by the RTC?
No. According to the SC, this amounts to judicial legislation. To grant the changes sought by Silverio 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, certain felonies under the Revised Penal Code and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court, among others. These laws underscore the public policy in relation to women which could be substantially affected if Silverio’s petition were to be granted.
But the SC emphasized: “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.”
