G.R. No.

174689             October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

DECISION

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind! North Wind!
Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two
human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda"
(Beautiful). (The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel,
drugs and counseling with regard to a person’s sex? May a person successfully petition for a change of name and sex appearing in the birth
certificate to reflect the result of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate
in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as
respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April
4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as
"male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always
identified himself with girls since childhood.1 Feeling trapped in a man’s body, he consulted several doctors in the United States. He underwent
psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on
January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-
Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact
undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate
changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."

An order setting the case for initial hearing was published in the People’s Journal Tonight, a newspaper of general circulation in Metro Manila,
for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his
sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioner’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.

1
Likewise, the [c]ourt believes 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 the petitioner and her [fiancé] and the realization of
their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even
the State, through the [OSG] has not seen fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in
the Certificate of Birth of [p]etitioner, specifically for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s gender from
"Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged
that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial court’s decision lacked legal
basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery.
Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-
105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code,
Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We
disagree.

The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is a privilege, not a
right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. – No entry in a civil register shall be
changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from
the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature,
not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or nickname may be allowed in any of the
following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;
2
(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.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the
sex he thought he transformed himself into through surgery. However, a change of name does not alter one’s legal capacity or civil status.18 RA
9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first
name for his declared purpose may only create grave complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such
change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even
allege, any prejudice that he might suffer as a result of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that court’s primary
jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper
remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper
venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his
true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far
as the change of his first name was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this
connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical  errors are involved. The
correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect,
RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

xxx       xxx       xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing
an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to
the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided,
however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial
change for which the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407
and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no
reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment.
3
To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with
something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All
entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal
capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those
acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his
age, nationality and his family membership.27

The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at
his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status… include such matters as
the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity and civil status. In this connection,
Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be
exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or
midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant;
(c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where
the infant was born; and (f) such other data as may be required in the regulations to be issued.

xxx       xxx       xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, 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,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative
intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws)
should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is
defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and
female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing
ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that
sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and
remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a
post-operative male-to-female transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no
law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or
change of the entries in his birth certificate.
4
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the
petition would cause no harm, injury or prejudice to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found
that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred
social institutions, is a special contract of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity
of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner 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,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be
substantially affected if petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity
or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret
the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of
the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are
statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry,
where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. 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.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex.
However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It
can only apply or interpret the written word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

Footnotes
1
 Petitioner went for his elementary and high school, as well as his Bachelor of Science in Statistics and Master of Arts, in the University of the
Philippines. He took up Population Studies Program, Master of Arts in Sociology and Doctor of Philosophy in Sociology at the University of
Hawaii, in Manoa, Hawaii, U.S.A. Rollo, p. 48.
2
 This consisted of "penectomy [surgical removal of penis] bilateral oschiectomy [or orchiectomy which is the surgical excision of the testes]
penile skin inversion vaginoplasty [plastic surgery of the vagina] clitoral hood reconstruction and augmentation mammoplasty [surgical
enhancement of the size and shape of the breasts]." Id.
3
 On January 23, 2003, January 30, 2003 and February 6, 2003.

5
4
 Penned by Judge Felixberto T. Olalia, Jr. Rollo, pp. 51-53.
5
 Id., pp. 52-53 (citations omitted).
6
 Docketed as CA-G.R. SP No. 78824.
7
 Special Sixth Division.
8
 Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate Justices Marina L. Buzon and Aurora Santiago-Lagman
concurring. Rollo, pp. 25-33.
9
 Resolution dated September 14, 2006, id., pp. 45-46.
10
 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, Amending for the Purpose Articles 376 and 412 of the
Civil Code of the Philippines.
11
 Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March 2005, 454 SCRA 155.
12
 Id.
13
 K v. Health Division, Department of Human Resources, 277 Or. 371, 560 P.2d 1070 (1977).
14
 Under Section 2 (6) of RA 9048, "first name" refers to a name or nickname given to a person which may consist of one or more names in
addition to the middle names and last names. Thus, the term "first name" will be used here to refer both to first name and nickname.
15
 The last paragraph of Section 7 of RA 9048 provides:

SECTION 7. Duties and Powers of the Civil Registrar General.  – xxx xxx xxx

Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may either appeal the decision to the
civil registrar general or file the appropriate petition with the proper court.
16
 SECTION 3. Who May File the Petition and Where.  – Any person having direct and personal interest in the correction of a clerical or
typographical error in an entry and/or change of first name or nickname in the civil register may file, in person, a verified petition with the local
civil registry office of the city or municipality where the record being sought to be corrected or changed is kept.

In case the petitioner has already migrated to another place in the country and it would not be practical for such party, in terms of
transportation expenses, time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed,
the petition may be filed, in person, with the local civil registrar of the place where the interested party is presently residing or domiciled. The
two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition.

Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in person, with the nearest
Philippine Consulates.

The petitions filed with the city or municipal civil registrar or the consul general shall be processed in accordance with this Act and its
implementing rules and regulations.

All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of only once.
17
 SECTION 5. Form and Contents of the Petition. – The petition shall be in the form of an affidavit, subscribed and sworn to before any person
authorized by the law to administer oaths. The affidavit shall set forth facts necessary to establish the merits of the petition and shall show
affirmatively that the petitioner is competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or
entries, which are sought to be corrected and/or the change sought to be made.

The petition shall be supported with the following documents:

(1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or
changed;

(2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and

6
(3) Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for
the approval of the petition.

In case of change of first name or nickname, the petition shall likewise be supported with the documents mentioned in the immediately
preceding paragraph. In addition, the petition shall be published at least once a week for two (2) consecutive weeks in a newspaper of general
circulation. Furthermore, the petitioner shall submit a certification from the appropriate law enforcement agencies that he has no pending case
or no criminal record.
18
 Republic v. Court of Appeals, G.R. No. 97906, 21 May 1992, 209 SCRA 189.
19
 Supra note 11.
20
 Id.
21
 In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (1987).
22
 Lee v. Court of Appeals, 419 Phil. 392 (2001).
23
 Id.
24
 Co v. Civil Register of Manila , G.R. No. 138496, 23 February 2004, 423 SCRA 420.
25
 Id.
26
 Id.
27
 Beduya v. Republic of the Philippines, 120 Phil. 114 (1964).
28
 Salonga, Jovito, Private International Law, 1995 Edition, Rex Bookstore, p. 238.
29
 This, of course, should be taken in conjunction with Articles 407 and 412 of the Civil Code which authorizes the recording of acts, events and
judicial decrees or the correction or change of errors including those that occur after birth. Nonetheless, in such cases, the entries in the
certificates of birth are not be corrected or changed. The decision of the court granting the petition shall be annotated in the certificates of
birth and shall form part of the civil register in the Office of the Local Civil Registrar. (Co v. Civil Register of Manila, supra note 24)
30
 The error pertains to one where the birth attendant writes "male" or "female" but the genitals of the child are that of the opposite sex.
31
 Moreover, petitioner’s female anatomy is all man-made. The body that he inhabits is a male body in all aspects other than what the
physicians have supplied.
32
 Black’s Law Dictionary, 8th edition (2004), p.1406.
33
 Words and Phrases, volume 39, Permanent Edition, p. 106.
34
 In re Application for Marriage License for Nash, 2003-Ohio-7221 (No. 2002-T-0149, slip op., Not Reported in N.E.2d, 2003 WL 23097095 (Ohio
App. 11 Dist., December 31, 2003), citing Webster’s II New College Dictionary (1999).
35
 Id.
36
 Standard Oil Co. v. United States, 221 U.S. 1 (1911), 31 S.Ct. 502, 55 L.Ed. 619.
37
 Article 1, Family Code.
38
 Article 2(1), Id.
39
 These are Articles 130 to 138 of the Labor Code which include nightwork prohibition, facilities for women, prohibition on discrimination and
stipulation against marriage, among others.
40
 These include Article 333 on adultery, Articles 337 to 339 on qualified seduction, simple seduction and acts of lasciviousness with the consent
of the offended party and Articles 342 and 343 on forcible and consented abduction, among others.
41
 Section 3(jj)(4).

7
REPUBLIC v. JENNIFER B. CAGANDAHAN +

GR No. 166676, Sep 12, 2008

DECISION

586 Phil. 637

QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a reversal of the Decision[1] dated
January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for Correction of Entries in Birth
Certificate filed by Jennifer B. Cagandahan and ordered the following changes of entries in Cagandahan's birth certificate: (1) the name
"Jennifer Cagandahan" changed to "Jeff Cagandahan" and (2) gender from "female" to "male."

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate[2] before the RTC, Branch
33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the Certificate of Live Birth but while
growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a
condition where persons thus afflicted possess both male and female characteristics. She further alleged that she was diagnosed to have
clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age
thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development.
She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that
her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was posted in conspicuous places by the
sheriff of the court. The Solicitor General entered his appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the Department of Psychiatry, University of the
Philippines-Philippine General Hospital. Dr. Sionzon issued a medical certificate stating that respondent's condition is known as CAH. He
explained that genetically respondent is female but because her body secretes male hormones, her female organs did not develop normally
and she has two sex organs - female and male. He testified that this condition is very rare, that respondent's uterus is not fully developed
because of lack of female hormones, and that she has no monthly period. He further testified that respondent's condition is permanent and
recommended the change of gender because respondent has made up her mind, adjusted to her chosen role as male, and the gender change
would be advantageous to her.

The RTC granted respondent's petition in a Decision dated January 12, 2005 which reads:

The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs prayed [for]. Petitioner has adequately
presented to the Court very clear and convincing proofs for the granting of his petition. It was medically proven that petitioner's body produces
male hormones, and first his body as well as his action and feelings are that of a male. He has chosen to be male. He is a normal person and
wants to be acknowledged and identified as a male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to make the following corrections in the birth
[c]ertificate of Jennifer Cagandahan upon payment of the prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioner's school records, voter's registry, baptismal certificate, and other pertinent records are hereby amended to
8
conform with the foregoing corrected data.

SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:

I.

THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN COMPLIED WITH; AND,

II.

CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE
RESPONDENT'S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT MAKE HER A "MALE."[4]

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth certificate of respondent to change her
sex or gender, from female to male, on the ground of her medical condition known as CAH, and her name from "Jennifer" to "Jeff," under Rules
103 and 108 of the Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the Rules of Court because while
the local civil registrar is an indispensable party in a petition for cancellation or correction of entries under Section 3, Rule 108 of the Rules of
Court, respondent's petition before the court a quo did not implead the local civil registrar.[5] The OSG further contends respondent's petition is
fatally defective since it failed to state that respondent is a bona fide resident of the province where the petition was filed for at least three (3)
years prior to the date of such filing as mandated under Section 2(b), Rule 103 of the Rules of Court.[6] The OSG argues that Rule 108 does not
allow change of sex or gender in the birth certificate and respondent's claimed medical condition known as CAH does not make her a male.[7]

On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not formally named a party in the Petition
for Correction of Birth Certificate, nonetheless the Local Civil Registrar was furnished a copy of the Petition, the Order to publish on December
16, 2003 and all pleadings, orders or processes in the course of the proceedings,[8] respondent is actually a male person and hence his birth
certificate has to be corrected to reflect his true sex/gender,[9] change of sex or gender is allowed under Rule 108,[10] and respondent
substantially complied with the requirements of Rules 103 and 108 of the Rules of Court.[11]

Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME

SECTION 1. Venue. - A person desiring to change his name shall present the petition to the Regional Trial Court of the province in which he
resides, [or, in the City of Manila, to the Juvenile and Domestic Relations Court].

SEC. 2. Contents of petition. - A petition for change of name shall be signed and verified by the person desiring his name changed, or some
other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of
such filing;

9
(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

SEC. 3. Order for hearing. - If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition,
shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week
for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set
for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice.

SEC. 4. Hearing. - Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or
city fiscal shall appear on behalf of the Government of the Republic.

SEC. 5. Judgment. - Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that
the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge
that such name be changed in accordance with the prayer of the petition.

SEC. 6. Service of judgment. - Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality
or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register.

Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY

SECTION 1. Who may file petition. - Any person interested in any act, event, order or decree concerning the civil status of persons which has
been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Regional
Trial Court of the province where the corresponding civil registry is located.

SEC. 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring
marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss
or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of
name.

SEC. 3. Parties. - When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim
any interest which would be affected thereby shall be made parties to the proceeding.

SEC. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same,
and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once
a week for three (3) consecutive weeks in a newspaper of general circulation in the province.

SEC. 5. Opposition. - The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is
sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto.

SEC. 6. Expediting proceedings. - The court in which the proceedings is brought may make orders expediting the proceedings, and may also
grant preliminary injunction for the preservation of the rights of the parties pending such proceedings.

SEC. 7. Order. - After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In
either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

10
The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the Rules of Court because
respondent's petition did not implead the local civil registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made parties to the proceedings. Likewise, the local civil registrar is required to be
made a party in a proceeding for the correction of name in the civil registry. He is an indispensable party without whom no final determination
of the case can be had.[12] Unless all possible indispensable parties were duly notified of the proceedings, the same shall be considered as falling
much too short of the requirements of the rules.[13] The corresponding petition should also implead as respondents the civil registrar and all
other persons who may have or may claim to have any interest that would be affected thereby.[14] Respondent, however, invokes Section 6,
[15]
 Rule 1 of the Rules of Court which states that courts shall construe the Rules liberally to promote their objectives of securing to the parties a
just, speedy and inexpensive disposition of the matters brought before it. We agree that there is substantial compliance with Rule 108 when
respondent furnished a copy of the petition to the local civil registrar.

The determination of a person's sex appearing in his birth certificate is a legal issue and the court must look to the statutes. In this connection,
Article 412 of the Civil Code provides:

ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No. 9048[17] in so far as clerical or
typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without
the need for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such
errors. Rule 108 now applies only to substantial changes and corrections in entries in the civil register.[18]

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a
substantial change for which the applicable procedure is Rule 108 of the Rules of Court.[19]

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407
and 408 of the Civil Code:

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.[20]

Respondent undisputedly has CAH. This condition causes the early or "inappropriate" appearance of male characteristics. A person, like
respondent, with this condition produces too much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH
usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male than female; (2)
normal internal structures of the female reproductive tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some
features start to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000
children are born with CAH.

CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century, medicine adopted the term "intersexuality" to
apply to human beings who cannot be classified as either male or female.[22] The term is now of widespread use. According to Wikipedia,
intersexuality "is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics
are determined to be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male and
female sexes."

Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have been expected to conform to
either a male or female gender role.[23] Since the rise of modern medical science in Western societies, some intersex people with ambiguous

11
external genitalia have had their genitalia surgically modified to resemble either male or female genitals.[24] More commonly, an intersex
individual is considered as suffering from a "disorder" which is almost always recommended to be treated, whether by surgery and/or by taking
lifetime medication in order to mold the individual as neatly as possible into the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be
subject to outright denial. "It has been suggested that there is some middle ground between the sexes, a `no-man's land' for those individuals
who are neither truly `male' nor truly `female'."[25] The current state of Philippine statutes apparently compels that a person be classified either
as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid
classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry for gender. But if
we determine, based on medical testimony and scientific development showing the respondent to be other than female, then a change in the

subject's birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male)
composition. Respondent has female (XX) chromosomes. However, respondent's body system naturally produces high levels of male hormones
(androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male.

Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification
would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here
thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological
support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And
accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong
medication,[26] to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due
course in respondent's development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one's sexuality and
lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not
consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female. Neither will the Court
force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this
gender of the human species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit
of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual
development and maturation. In the absence of evidence that respondent is an "incompetent"[27] and in the absence of evidence to show that
classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as
valid and justified the respondent's position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In
other words, we respect respondent's congenital condition and his mature decision to be a male. Life is already difficult for the ordinary
person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique
circumstances in this case.

As for respondent's change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion,
to be exercised in the light of the reasons adduced and the consequences that will follow.[28] The trial court's grant of respondent's change of
name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent's change
of name merely recognizes his preferred gender, we find merit in respondent's change of name. Such a change will conform with the change of
the entry in his birth certificate from female to male.

WHEREFORE, the Republic's petition is DENIED. The Decision dated January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna,
is AFFIRMED. No pronouncement as to costs.
12
SO ORDERED.

Carpio-Morales, Tinga, Velasco, Jr., and Brion, JJ., concur.

[1]
 Rollo, pp. 29-32. Penned by Judge Florenio P. Bueser.

[2]
 Id. at 33-37.

[3]
 Id. at 31-32.

[4]
 Id. at 97.

[5]
 Id. at 99.

[6]
 Id. at 103.

[7]
 Id. at 104.

[8]
 Id. at 136.

[9]
 Id. at 127.

[10]
 Id. at 134.

[11]
 Id. at 136.

[12]
 Republic v. Court of Appeals, G.R. No. 103695, March 15, 1996, 255 SCRA 99, 106.

[13]
 Ceruila v. Delantar, G.R. No. 140305, December 9, 2005, 477 SCRA 134, 147.

[14]
 Republic v. Benemerito, G.R. No. 146963, March 15, 2004, 425 SCRA 488, 492.

[15]
 SEC. 6. Construction.- These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding.

[16]
 Art. 376. No person can change his name or surname without judicial authority.

[17]
 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 REGISTRAR WITHOUT NEED OF A JUDICIAL ORDER,
AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES. APPROVED, MARCH 22, 2001.

[18]
 Silverio v. Republic of the Philippines, G.R. No. 174689, October 19, 2007, 537 SCRA 373, 388.

[19]
 Id. at 389.

[20]
 Id. at 389.

[21]
 (1) 5-alpha reductase deficiency; (2) androgen insensitivity syndrome; (3) aphallia; (4) clitoromegaly; (5) congenital adrenal hyperplasia; (6)

13
gonadal dysgenesis (partial & complete); (7) hypospadias; (8) Kallmann syndrome; (9) Klinefelter syndrome; (10) micropenis; (11) mosaicism
involving sex chromosomes; (12) MRKH (mullerian agenesis; vaginal agenesis; congenital absence of vagina); (13) ovo-testes (formerly called
"true hermaphroditism"); (14) partial androgen insensitivity syndrome; (15) progestin induced virilization; (16) Swyer syndrome; (17) Turner
syndrome. [Intersexuality <<u>http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).]

[22]
 Intersexuality<<u>http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).

[23]
 Intersexuality<<u>http://en.wikipedia.org/wiki/Intersexual> visited August 15, 2008), citing Gagnon and Simon 1973.

[24]
 Intersexuality <<u>http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).

[25]
 M.T. v. J.T. 140 N.J. Super 77 355 A. 2d 204.

[26]
 The goal of treatment is to return hormone levels to normal. This is done by taking a form of cortisol (dexamethasone), fludrocortisone, or
hydrocortisone) every day. Additional doses of medicine are needed during times of stress, such as severe illness or surgery.

xxxx

Parents of children with congenital adrenal hyperplasia should be aware of the side effects of steroid therapy. They should report signs of
infection and stress to their health care provider because increases in medication may be required. In additional, steroid medications cannot be
stopped suddenly, or adrenal insufficiency will result.

xxxx

The outcome is usually associated with good health, but short stature may result even with treatment. Males have normal fertility. Females
may have a smaller opening of the vagina and lower fertility. Medication to treat this disorder must be continued for life. (Congenital Adrenal
Hyperplasia )

[27]
 The word "incompetent" includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb
who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound
mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage
their property, becoming thereby an easy prey for deceit and exploitation. (See Sec. 2 of Rule 92 of the Rules of Court)

[28]
 Yu v. Republic of the Philippines, 123 Phil. 1106, 1110 (1966).

14