Republic of the Philippines
Commission on Human Rights
Regional Office X
Cagayan de Oro City
HUMAN RIGHTS BULLETIN ON CHR’S POSITION ON THE ANTI-DISCRIMINATION ON
THE BASIS OF SEXUAL ORIENTATION, GENDER IDENTITY AND EXPRESSION BILL
(Senate Bill No. 1271)
The Commission on Human Rights X (CHR X) has received a letter from the
Committee on Social Services of the City Council of Cagayan de Oro City pertaining to a
position paper opposing Senate Bill No. 1271 addressed to Honorable Mayor Oscar Moreno.
The Commission on Human Rights (CHR), as Gender and Development Ombud
(Gender Ombud) under the Magna Carta of Women and mandated under the Constitution to
recommend to Congress effective measures to promote and protect human rights, has
submitted its position paper1 on Senate Bill No. 1271, entitled “Anti-Discrimination on the
Basis of Sexual Orientation, Gender Identity and Expression.” The bill seeks to prohibit
discrimination on the basis of sexual orientation and gender identity or expression (SOGIE). 2
The CHR X reiterates the CHR’s position in support of the anti-discrimination on the
basis of SOGIE. The CHR’s stand reads:3
The Philippines is considered as one of the most “gay-friendly”
countries in the Asia Pacific region, according to the 2013 Pew
Research Center survey.4 The survey showed that 73% of adult
Filipinos agreed that homosexuality should be accepted. Another
survey conducted by Social Weather Station in 20135 showed that
85% of Filipinos support the Lesbian, Gay, Bisexual, Transgender,
Queer (LGBTQ+) community against discrimination, and 54% agree
that gays and lesbians have contributed a lot to progress in Philippine
society. Despite this, the LGBTQ+ community have long suffered and
continue to experience discrimination, including hate speech,
violence, unequal treatment, and even killings. Discrimination in the
workplace and educational institution includes cases of not being
hired or promoted, and students being refused admission because of
their sexual orientation.
1
Position Paper on the Anti-Discrimination on the Basis of Sexual Orientation and Gender Identity of Expression Bill (Senate
Bill No. 1271)
2
Ibid.
3
Ibid.
4
The Global Divide on Homosexuality, Pew Research Center, June 4, 2013.
https://www.pewresearch.org/global/2013/06/04/the-global-divide-on-homosexuality/
5
SWS Special Report: 85% says gays and lesbians should be protected against discrimination, Social Weather Stations
February 06, 2015. https://www.sws.org.ph/swsmain/artcldisppage/?artcsyscode=ART-20151214104358
The anti-discrimination bill on the basis of sexual orientation
has languished in Congress since 1999.6 Local ordinances prohibiting
discrimination based on SOGIE have been passed in local
governments, such as Quezon City, Cebu, Davao, and Dinagat
Islands, among others.7 These local ordinances significantly
contributed to the growing acceptance of LGBTQ+ community in our
society. Unfortunately, this is not enough to protect the individual
rights of people with diverse SOGIE. People belonging to the
LGBTQ+ community have been prejudiced and stigmatized for the
reason that they do not conform to society’s norms where men should
be masculine and women should be feminine. Discrimination in any
form demeans the dignity and human rights of a person as it limits an
individual’s freedom and self-realization.
The Commission emphasizes that this proposed measure
seeks to address the crucial issues of differential treatment of an
employee or anyone engaged to render services, denial of admission
or expulsion from educational institution, and other forms of
discrimination on the basis of SOGIE. Further, it does not negate
religious freedom, which is also a fundamental human right, nor does
it create a special right for the LGBTQ+ community. The rights to
equality and freedom from discrimination based on sex or other status
are enshrined in the Universal Declaration of Human Rights (UDHR), 8
the International Covenant on Civil and Political Rights (ICCPR),9 and
the International Covenant on Economic, Social, and Cultural Rights
(ICESCR).10 The 1987 Philippine Constitution provides that the State
values the dignity of every human person and guarantees full respect
for human rights. The Philippines with a State policy to adopt
generally accepted principles of international law as part of the law of
the land and as State Party to the ICCPR and ICESCR, has the
obligation to uphold the fundamental rights of equality and nondiscrimination by adopting positive measures in all areas to enable
very person to enjoy these rights. The proposed measure is an
example of a positive action of the State to advance equality and nondiscrimination of persons with diverse SOGIE. It is the responsibility
of the State to protect the rights and uphold the dignity of all by
providing an enabling environment free of discrimination and stigma
for everyone to fully enjoy their human rights, and for the LGBTQ+
community to be able to freely express themselves and contribute to
the betterment of the community.
It is in this light that the Commission, as primary proponent of
human rights in the Philippines, guided by the eight key human rights
6
An Act Prohibiting Discrimination on the Basis of Sexual Orientation, 11th Congress of the Philippines. Authored by Rep. Etta
Rosales and Sen Miriam Santiago
7
https://www.rappler.com/move-ph/issues/gender-issues/100631-ph-anti-discrimination-law-history
8
Articles 1, 2, and 7, Universal Declaration of Human Rights.
9
Articles 2(1), 25, and 26, International Covenant on Civil and Political Rights.
10
Articles 2(2) and 3, International Covenant on Economic, Social, and Cultural Rights
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instruments to which the Philippines is a State Party to and the
Yogyakarta Principles, expresses its support for the passage of the
bill. Human rights are inherent in all persons regardless of gender,
race, culture, religion, and any other status and all human beings are
born free and equal in dignity and rights.11
Section 5 (a) of SB 1271 lists discriminatory practices which
includes promotion and encouragement of stigma on the basis of
SOGIE in media, educational textbooks, and other medium, and
inciting violence and sexual abuse against any person or group on
the basis of SOGIE. This is consistent with General Recommendation
no. 19 of the UN Committee on the Elimination of all forms of
Discrimination Against Women, which regards gender-based violence
as a hindrance on women from enjoying their rights 12 on the basis of
gender equality. This is further reaffirmed in General
Recommendation No. 28 calling on State Parties to adopt and pursue
policies that will eliminate the occurrence of discrimination based on a
woman’s sexual orientation or gender identity. 13
On the other hand, the UN Committee against Torture
provides in General Comment No. 2 that States should provide
protection for individuals or groups made vulnerable by
discrimination,14 by taking into account that both men and women
who do not conform to socially determined gender roles may be
subject to torture or inhuman and degrading treatment.
The Commission also emphasizes the importance of Section
5 (i) of the bill which prohibits the conduct of medical or psychological
means to determine or alter a person’s SOGIE as it is also a form of
discrimination and tantamount to mental torture. The UN High
Commissioner for Human Rights15 condemned the use of “conversion
therapy” as it violates the prohibition on torture and degrading
treatment. Team Magazine, a local online LGBT-oriented magazine 16
published a story in 2011 of a young man forced to undergo
conversion therapy by means of penile plethysmograph. This practice
is also called “sexual orientation change efforts.” It has been used to
try to alter an individual’s sexual orientation, but was proven
unethical, unscientific, and ineffective.
11
Article 1, Universal Declaration of Human Rights
UN Committee on the Elimination of all Forms of Discrimination against Women (CEDAW), CEDAW General Recommendation no. 19:
Violence against Women, 1992, available at: https://www.refworld.org/docid/52d920c54.html.
13
General Recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All
Forms of Discrimination against Women, CEDAW Committee, December 26, 2010. CEDAW/C/GC/28.
14
General Comment No. 2, Implementation of article 2 by States parties, Committee Against Torture, 24 January 2018. CAT/C/GC/2.
15
Discrimination and violence against individuals based on their sexual orientation and gender identity, Human Rights Council, 4 May
2015. A/HRC/29/23.
16
Breaking bading – An account of conversion therapy, TEAM Magazine, 06 November 2017, https://teammag.ph/breaking-badingaccount-conversion-therapy/
12
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We equally support Section 5 (j), which prohibits profiling
based on sexual orientation and gender identity, as it promotes
stigma and prejudice among the LGBTQ+ community. It also prohibits
individuals from being subjected to detention on the basis of SOGIE
by members of law enforcement agencies, including immigration
authorities. This provision gives cognizance to Principle No. 7 of the
Yogyakarta Principles, which states that all persons regardless of
sexual orientation or gender identity are entitled to due process
whether or not charged with an offense. We take this opportunity to
raise the issue of humane treatment while in detention where people
with diverse SOGIE should not be subject to risk of violence or further
marginalization. Further, Principle No. 9 strongly urges States to
ensure that persons deprived of liberty are able to participate in
decisions regarding the place of detention appropriate to their sexual
orientation and gender identity.
xxx
In conclusion, the Commission supports measures to protect
people with diverse SOGIE from discrimination, including those
addressing issues of employment and associated rights. This
measure will hopefully spark not just policy forum, but also increase
the acceptance of persons with diverse SOGIE in society, creating a
healthy environment conducive for all. The passage of the Antidiscrimination Bill based on SOGIE will be a major step towards
fulfilling the State’s duty to respect, protect, and fulfill the human
rights of all.
The Senate Bill No. 1271 focused more on the acts of discrimination being faced by
persons with diverse SOGIE. The bill defines ‘discrimination’ as:
‘refers to any distinction, exclusion, restriction, or preference based
on the grounds of sex, sexual orientation, gender identity or
expression, hereinafter referred to as “SOGIE”, and has the purpose
or effect of nullifying or impairing the recognition, access to,
enjoyment, or exercise by all persons on an equal footing of all rights
and freedoms. For purposes of this provision, the actual sex, sexual
orientation or gender identity of the person subjected to discrimination
shall not be relevant for the purpose of determining whether an act of
discrimination has been committed.17
The terms sexual orientation, gender identity and expression have a different
meaning and should not be used interchangeably with sex.
17
Sec. 3(a).
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Sexual orientation refers to each person’s capacity for profound
emotional, affectional and sexual attraction to, and intimate and
sexual relations with, another person.18
Gender identity is a person’s internal sense of being a man or a
woman or a third or alternative gender, or a combination of genders.19
Gender expression is a person’s ways of communicating masculinity
or femininity (or both or neither) externally. This is done through
physical appearance – including clothing, hair styles and the use of
cosmetics – and mannerisms, ways of speaking and behavioral
patterns when interacting with others.20
Sex, on the other hand is differentiated from the term SOGIE, which refers to ‘a
person’s biological characteristics. These may be genetic, hormonal or anatomical and
typically are used to categorise people into two distinct categories as either male or
female.’21
The oppositors claim that the bill is anti-family and anti-marriage citing Family Code,
which defines marriage as:
a special contract of permanent union between a man and a woman
entered into in accordance with law for the establishment of conjugal
and family life. It is the foundation of the family and an inviolable
social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage
settlements may fix the property relations during the marriage within
the limits provided by this Code.22
The bill sought to prohibit discrimination in employment and associated rights on the
basis of one’s sexual orientation, gender identity or expression. Senate Bill No. 1271, does
not attempt to legislate same-sex marriages (usually called Marriage Equality in other
jurisdictions).
Contrary to the claim of the oppositors, the bill likewise does not encourage profiling.
In fact, the bill includes profiling as one of the discriminatory practices that it hopes to
prohibit. The bill provides:
Section 5 - Discriminatory Practices. - It shall be unlawful for any
person, natural or juridical, to:
xxx
18
Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex
Characteristic: A Manual for National Human Rights Institutions, Asia Pacific Forum, 2016, 11.
19
Ibid, 12.
20
Ibid.
21
Ibid, 13.
22
Article 1, Executive Order No. 209 The Family Code of the Philippines, July 6, 1987
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j. Subject any person, natural or juridical, to profiling,
detention, or verbal or physical harassment on the basis of SOGIE.
Profiling, detention, or verbal or physical harassment on the basis of
SOGIE by members of law enforcement agencies, including the
military, police, immigration, is likewise prohibited. Physical or verbal
harassment based on SOGIE of persons in custody or detention of
the police, including subjecting them to extortion, is also prohibited;
xxx
The CHR X has noted that the City Council of Cagayan de Oro has proposed an
ordinance on diversity and equality. The proposed ‘Cagayan de Oro City Diversity and
Equality Ordinance’ aims to eliminate all forms of discrimination that violate and offend the
guarantee of equal protection enshrined in the Bill of Rights, and the State’s obligations
under Human Rights instruments to which the Philippines is a State party. 23 The proposed
ordinance hopes to prohibit and eliminate discrimination, whether directly or indirectly, based
on personal characteristics such as age, racial or ethnic origin, religious belief or activity,
political inclination or conviction, social class, sex, gender, sexual orientation, gender identity
and expression, marital or relationship status, disability, health status or medical history,
language, physical features, or other status.24 While the public has the right to be informed
on this matter, we encouraged the public to have an open mind in looking into each provision
of the proposed ordinance with the end goal to eliminate discrimination.
The CHR X hopes that all human beings, regardless of their personal characteristics
and status, be treated with respect and with dignity, and free from discrimination. We
encouraged the policy makers to take up measures which ensures that all persons can fully
enjoy their human rights. We encouraged everyone, not only the State, to respect the rights
of all.
To end, we quote the statement25 of the CHR Spokesperson, Atty. Jacqueline Ann
de Guia on the issue of SOGIE Equality bill:
SOGIE (or sexual orientation and gender identity and
expression), as a term in itself, recognizes the diversity of human
sexuality and its many forms of expression. Boxing then the debate in
the perspective of ‘male versus female rights’ already highlights some
of the issues that the SOGIE Equality Bill seeks to address.
We need to recognize that violence and discrimination against
the LGBTQIA+ community exist, and that persons of diverse SOGIE
23
Proposed Cagayan de Oro City Diversity and Equality Ordinance, Article I, Section 2.
Ibid, Article III, Section 1
25
Statement of CHR spokesperson, Atty. Jacqueline Ann de Guia, on the Sogie Equality Bill being against
women’s rights, September 5, 2019, https://chr.gov.ph/statement-of-chr-spokesperson-atty-jacqueline-annde-guia-on-the-sogie-equality-bill-being-against-womens-rights/
24
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are oftentimes being disadvantaged for simply not conforming to
some’s conservative notion of what makes males and females.
It is crucial to understand that diverse SOGIE form part of a
person’s identity. And if people are harmed for simply asserting
themselves as humans, then the State must be ready provide equal
protection through laws and policies.
The SOGIE Equality Bill, therefore, does not create or ascribe
new rights. It merely demands recognition that everyone is born free
and equal in dignity and rights, and that systemic oppression
necessitates corrective, affirmative action.
In the end, the message is simple—that regardless of your
sexual orientation and no matter how you opt to express your gender,
you are human, as is with everyone else who needs to be respected
and given the opportunity to pursue a well-lived and dignified life.
Done this 21st day of January 2020 in Cagayan de Oro City, Philippines.
(signed)
ATTY. JEANNE IVY F. ABRINA
Regional Director
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