MY BODY MY CHOICE: THE RECOGNITION AND PROTECTION OF THE RIGHTS

OF INTERSEX INDIVIDUALS IN THE PHILIPPINES

Ma. Abegail O. Tipones

1. The proponent focused on two rights namely, the right to body autonomy, right to gender
identity and omitted the right against discrimination

2. The proponent added the following subchapters to the right to body autonomy:

 Ratification by the Philippines of the Convention on the Right of the Child

(connecting the flow from international law to municipal law and including the
discussion on parental authority). It reads thus:

“The Convention of the Rights of the Child (CRC) has been approved by the United Nations
General Assembly on November 20, 1989. The convention for brevity includes consolidated
rules on the legal benefits and stipulations regarding the rights of the world’s youth. It caters
three main areas of the rights of the children such as the development, survival and protection. It
also emphasizes that the rights contained in the convention is applicable to all children without
bias as to ‘race, color, sex, language, religion, political or other opinion, national, ethnic or
social origin, property, disability birth and other status.’ As one of the States who signed the
Convention, the Philippines, through its Legislative body and in accordance with Article 47 of
the Convention and in compliance with Section 21, Article VI of the 1987 Constitution, in unity
concerned in the ratification of the Convention and finally deemed it part of our laws when it
was adopted on July 26, 1990. The effect of the ratification makes the principles contained in the
convention as part of our own laws. Despite the broad spectrum which comprises parental
constitutional rights, the same is not without limit. The limitation has been reflected in a case
decided by the Supreme Court when it stated, “the rights of parenthood are not beyond
limitation. Acting to guard the general interest in youth’s well-being, the state as parens patriae
may restrict the parents’ control by requiring school attendance, regulating or prohibiting the
child’s labor in many other ways.” Where the decision of the parents do not conform with the
best interest of the child, the conflicting interests may be enough to debunk the best interest
presumption.

 Parental Authority. It reads thus:

Despite the broad spectrum which comprises parental constitutional rights, the same is not
without limit. The limitation has been reflected in a case decided by the Supreme Court when it
stated, “the rights of parenthood are not beyond limitationWhere the decision of the parents do
not conform with the best interest of the child, the conflicting interests may be enough to debunk
the best interest presumption. Adverse interest on the constitutional rights involved often
happens when there are unnecessary and unreasonable medical treatment. The courts may also
decide that the best interest of the child was not upheld when the proposed medical treatment
does not prove that there can be no assurance that the child can be cured. The existence of
conflict of interest warrants heightened judicial scrutiny. Furthermore, the Court will always
intervene when the best interest or the welfare of the child is compromised.
 Parens Patriae. It reads thus:
Parens Patriae is Latin for “father of his country.” In other words, it means that the “State as
the guardian of the people.” As gleaned from a landmark case decided by the Supreme Court,
“the government being the protector of the rights of the people has the inherent supreme power
to enforce such laws that will promote the public interest.” the ultimate meaning of the term
demands for the State, utilizing its powers to perform its duty to be the father or a parent to its
citizens. It is the duty of the state to ensure the safety of the people and be of service to them,
especially those who have less in life. As the saying goes, “ those who have less in life should
have more in law.” Therefore, using this concept in the situation of intersex children who have
no one but the State to defend them with their rights, it is upon the State to fulfill its obligation.
In pursuant to the protection of children with intersex conditions, the law must strike a careful
balance between the right of the parents to exercise authority over their children and the
obligation of the state to promote the well-being and the health of the minors. The protection of
an intersex child against a surgery for cosmetic purposes which can alter their way of life
forever is considered as a compelling State interest which gives more reason for the State to act
as parens patriae to prevent the parents from consenting to the surgery on the child’s behalf
 Convention of the Rights of the Child. It reads thus:
Article 24 of the Convention of the Rights of the Child states: “States Parties recognize the right
of the child to the enjoyment of the highest attainable standard of health and to facilities for the
treatment of illness and rehabilitation of health.” This provision emphasizes the vitality of
approaching the concerns regarding the child’s health keeping in mind that every child should
have the right to every opportunity to develop, grow and survive in the context of his or her
physical, social and emotional well-being to reach his or her full potential. The children’s right
to health as enunciated in Article 24 is an inclusive right and it shall not be limited to “timely
and appropriate prevention, health promotion, curative, rehabilitative and palliative serve” but
also the right of the child to develop and grow in order to reach his or her full potential and live
in an environment which allows him to have the “highest standard of health” through the
enactment of programs that cater the underlying determinants of health. A holistic approach to
health makes the goal of improving the health of the child feasible in compliance with the
mandate of the international human rights obligations. In order to achieve this, the Government
needs the assistance and cooperation of the medical stakeholders working in the fields of
children’s rights and public health. This includes the lawmakers, the implementers of the various
programs, the medical professionals and lastly, the parents and the children themselves. As
reflected on the constitution of the World Health Organization, State parties who signed as
members thereof have unanimously agreed that health is a matter of complete mental, physical
and social well-being and not merely the absence of any disease or any infirmity. Hence, intersex
children are entitled to the highest attainable health necessary for their full development and
potential.
 Philippine Laws in Promotion of Health (includes discussion on the right to
health. It reads thus:
Section 15 of the 1987 Constitution of the Philippines states: “The State shall protect and
promote the right to health of the people and instill health consciousness among them.” This is
a self-executory provision. It does not distinguish if one is an intersex or not. The reproductive
organs of an intersex individual pose no danger to their health. Surgeries are just performed so
that their genitals will look like the standard appearance of a typical genital belonging to a man
or a woman. Therefore, it follows that no one should be subjected to non-essential surgeries
which put the health of an intersex child or an adult at risk.
At present, there are already laws and other ordinances which reflects the provisions of the CRC
and aims for promoting the rights of the Filipino children. Two of which are R.A. 7610
otherwise known as the “Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act” and RA 7658, “An Act Amending in Section 12, RA 7610 (on Child
Employment)” These laws however does not contain any provision which concerns the
unnecessary surgeries performed to intersex children without their informed consent.

3. The proponent revised the chapter on Gender Identity. The revision reads thus:
Aside from being compelled to experience clinical mediation, legal acknowledgment of intersex
individuals sits within an intricate blend of human rights issues. Usually appearing on the birth
certificate of an intersex child, a gender marker which in effect legally fortifies the clinical
choices made about the kid’s body. Gender identity is defined as “a personal conception of
oneself as male or female (or rarely, both or neither). This concept is intimately related to the
concept of gender role, which is defined as the outward manifestations of personality that reflect
the gender identity. Gender identity, in nearly all instances, is self-identified, as a result of a
combination of inherent and extrinsic or environmental factors; gender role, on the other hand,
is manifested within society by observable factors such as behavior and appearance. For
example, if a person considers himself a male and is most comfortable referring to his personal
gender in masculine terms, then his gender identity is male. However, his gender role is male
only if he demonstrates typically male characteristics in behavior, dress, and/or mannerisms.
4. The proponent totally scrapped the previously proposed legislation in the thesisand create
a new one and following the format of a proposed bill