Birth certificate is a source of vital information and provides legal proof of the identity of a person including the name, sex, date and place of birth, nationality and parents’ name and marriage. Having identity is a fundamental human right which allows an individual to enjoy rights.
Names are labels for one’s identity. They facilitate social interaction. It is for this reason that the State has an interest in one’s name. The name through which one is known is not chosen by the person who bears it. Rather, it is chosen by one’s parents. In this sense, the choice of one’s name is not a product of the exercise of autonomy. Thus, changes of one’s name and sex can be the result of exercise of one’s freedom or to correct the data as it was recorded in the Civil Registry [Justice Leonen in Republic v. Michelle Gallo, G.R. No. 207074].
When is a man a man? May a person change name and sex in his/her birth certificate to reflect sex reassignment surgery? This was the issue in Silverio v. Republic, G.R. 174689, 22 October 2007. In 2002, Rommel filed a petition to change his first name and sex in his birth certificate from “Rommel” to “Mely” and “male” to “female” since he is a male transsexual, anatomically male but feels, thinks and acts as a female. He always identified himself as a girl since childhood. He underwent psychological exam, hormone treatment and breast augmentation and later sex reassignment surgery in Thailand. The Regional Trial Court granted the petition based on equity since he possessed the physique of a female and will achieve happiness by marrying his fiancée. In 2003, the Republic appealed. In 2006, the Court of Appeals ruled that the RTC decision lacked legal basis, since there is no law allowing the change of name or sex in the certificate of birth due to sex reassignment through surgery. Rommel appealed.
Our Honorable Supreme Court has ruled that a change of name is a privilege, not a right. Petitions for change of name are controlled by law. Article 376 of the Civil Code provides: no person can change his name or surname without judicial authority. This was amended by R.A. 9048 [Clerical Error Law] that vest to the civil registrar the authority to change first name. This excludes the change of first name from Rules 103 [Change of Name] and 108 ]Cancellation or Correction of Entries in the Civil Registry] of the Rules of Court unless administrative petition for change of name is first filed and later denied. In determining one’s sex as appearing in his birth certificate, it is a legal issue and the court must look to the law. Article 412 of the Civil Code provides: no entry in the civil register shall be changed or corrected without a judicial order. This was also amended by R.A. 9048 in so far as there are clerical error. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 applies only to substantial changes and corrections in entries in civil register. A person’s sex is an essential factor in marriage and family relations. It is part of one’s legal capacity and civil status. Article 413 of the Civil Code provides: All other matters pertaining to the registration of civil status shall be governed by special laws. But, there is no such special law governing sex reassignment and its effects. Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth. The sex of a person is determined at birth, visually done by the birth attendant by examining the genitals of the infant. Since 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.
Female is the sex that produces ova and male is the sex that has organs to produce spermatozoa for fertilizing ova. 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 that allows a post-operative male-to-female transsexual to be included in the category of female. While Rommel may have succeeded in altering his body and appearance through 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. The insufficiency of the law, however, 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. As such, the appeal of Rommel was denied.
