Sexual Rights and Wrongs: Policing the Gendered Order


Philippine law is generally considered relatively liberal, because there are no criminal statutes regarding non-heterosexual sexual orientation and gender identity. Ging Cristobal, Asia Coordinator for the International Gay and Lesbian Human Rights Council (IGLHRC), notes how a number of the Philippine’s closest neighbors in the region report a high incidence of violence against people with non-conventional sexual orientation and gender identity, and also have state laws against sexual relations between persons of the same sex. Tempting as it is to declare the Philippines totally "gay friendly" or even "pro-trans" because of the absence of penal laws and widespread violence against homosexuals and transgender people, this is not the whole picture. Studying how heteronomativity is closely "policed" and enforced by law can help form a holistic view of the hierarchical order of gender in the context of the Philippines.

Philippine marriage law is no more heteronormative than in many other countries, in that it only allows marriage between a man and a woman. But even just within this heterosexual context, related laws and court decisions use marriage to preserve the gender order.  Here, where marital infidelity is a criminally punishable act, only wives face prison-terms for committing adultery. (The "other man" can easily get off the hook by claiming no knowledge of the woman’s real marital status). For husbands, the crime is concubinage, which means that he is liable only when he lives with another woman or his affair is carried on under "scandalous circumstances."  Many equal rights campaigns have called for reforms to make the penal law on marital infidelity uniform instead of demanding decriminalization. Elsewhere I had occasion to comment about how the decriminalization of "marital infidelity" remains a thorny issue among local feminists.

Indeed, considering that there is no divorce in the Philippines, (save for a Muslim Code of Personal Laws which sanctions divorce among Muslims) these extremely sexist and archaic forms of marital sex laws do more than just perpetuate discrimination against women. They also cement the socio-biological view of sex difference as the legal norm. Penal law also frames a myriad of complex sexual relationships in rather simplistic terms and ends up highlighting the salacious above everything else.

Much like sex work, pornography and abortion (which are all criminalized in the Philippine context), penal law on adultery and concubinage is premised on a given order of sexual rights and wrongs. Fortunately, the law’s pro-creational bias, in which there can only be men and women within strict socio-biological terms, does not translate into penal laws directed against different sexual orientations and gender identities. Recently, however, two cases before the Philippine Supreme Court, threw open the issue of legal recognition in relation to sex and gender identity. In the 2007 case of Silverio v Republic, the court had earlier dismissed a petition for a change of name and gender designation by a petitioner who had undergone "male to female" sexual reassignment surgery. Despite the trial court’s findings to grant the same petition and to recognize that the petitioner’s rights were in keeping with principles of justice and equity, both the Court of Appeals and the Supreme Court reversed the decision. In 2008, however, a different division of the court granted another petition for a change of name and gender designation by a person claiming a condition of being "inter sexed" at birth. In Republic v Cagandahan, the court upheld the petitioner’s change in gender identity. But rather than consider these cases a study in contrast, they are better understood as interlocking parts of the same framework. Admittedly, the results are markedly different, in that ultimately the Petitioner in Republic v Cagandahan was allowed to decide on his gender identity, while the court in Silverio rejected the petitioner’s claim.

As it turns out, the deal breaker in Silverio was not only the "sexual reassignment surgery" but also her disclosure to the court of her intention to marry. The court in Cagandahan relied a lot in its reasoning on the pathological characterization of the "inter sexed" by medical experts. Unlike Silverio, Cagandahan did not undergo any medical procedure, nor did he disclose an intention to marry, which the court in Silverio considered a most "serious and wide-ranging legal and public policy consequence," while invoking the sanctity of "marriage." In the end, the two decisions sit perfectly aligned in continuing to reinforce a hierarchy of sexual orientations and gender identities.

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  • lineline

    The issues around the decriminalization of marriage infidelity remind me of debates between some domestic violence/rape advocates – those that are for increased reliance of the prison industrial system, and those that are for getting far away from the prion industrial system. I don’t mean to take away from your important point of how laws/culture really end of playing out with gender, just think that the further relation to prison issues is a good point too, especially of what I hear of the atrocities in the Philippine’s prion system.