A policy brief on the SOGIE Equality Bill, a measure penalizing discrimination on the basis of sexual orientation, gende...
POLICY BRIEF No. 3
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#LOVEEQUALITY #PASSADB
A policy brief on the SOGIE Equality Bill, a measure penalizing discrimination on the basis of sexual orientation, gender identity, and gender expression (SOGIE).
History The first version of the SOGIE Equality Bill (Anti- Discrimination Bill/ADB) was filed by then Akbayan Rep. Etta Rosales and Sen. Miriam Defensor-Santiago during the 11th Congress. It was passed on the third and final reading at the House of Representatives during the 12th Congress, but the Senate version unfortunately did not progress. In the succeeding Congresses, the bill was actively blocked by legislators affiliated with faith- based groups. The bill was consolidated with a comprehensive anti- discrimination measure during the 15th Congress, but the bicameral conference committee failed to harmonize the House and Senate versions. photo from leafens.blogspot.com
Updates The SOGIE Equality Bill has seen historic development in the current 17th Congress as it has been co-authored for the first time by the Speaker of the House. It is being championed by Sen. Risa Hontiveros, chair of the Senate Committee Chair on Women and Gender Equality in the Senate. Dinagat Island Rep. Kaka Bag-ao champions the version in the Lower House. In the Senate, it reached the period of interpellations and is being debated for the first time since it was introduced 17 years ago. Senators who with massive support from religious groups continue to delay the bill as every effort is being taken to unnecessarily exhaust the period of debates. The version of the bill at the Lower House awaits schedule for the period of interpellation at the plenary. Unfortunately, the sponsoring committee - the Committee on Women and Gender Equality- has been without a chairperson and therefore the Committee could not lobby for the bill to be scheduled for debates.
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Why the SOGIE Equality Law is needed LGBT Filipinos continue to suffer from all forms of discrimination despite the belief that LGBT people are accepted in the country. An inclusive anti-bullying policy in the Department of Education( DepEd), and the enactment of local anti-discrimination ordinances in a few local governments are not enough to protect LGBT people from SOGIE-based discrimination. In the Civil Society Organizations’ submission to the Universal Periodic Review, it was reported that LGBT Filipinos are still discriminated in the areas of employment, in access to health care and social welfare services, A research by an international organization, the Human Rights Watch (HRW), reveals that despite an anti-bullying policy by the DepEd, LGBT students in secondary schools experience discrimination at the hands of schoolmates, teachers, and other school personnel. In 2014, trans woman Jennifer Laude was brutally killed by a US serviceman who used trans panic alibi to defend his action. This incident has been the most brutal case of violence against a member of the LGBT community in recent history. Even as the victim, Laude continued to suffer cruelty but at the hands of her fellow Filipinos who bashed her.
Expansion of the Equal Protection Clause The SOGIE Equality Bill echoes the state policy stated in the 1987 Philippine Constitution, giving value to the dignity of every human person and ensuring full respect for human rights. This bill, following the UN Human Rights Committee Decision in Toonen v Australia, will put under the scope of the Equal Protection Clause the rights of persons with different sexual orientation and gender identity or expression. It will likewise expand the constitutional provision guaranteeing the fundamental equality before the law of women and men to include lesbian, gay, bisexual, transgender, queer, and intersex people. This Bill will also comply with the state obligation imposed by the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the International Covenant on Economic Social and Cultural Rights for all states “to guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status” whose prevailing interpretation includes protection against discrimination on the basis of sexual orientation.
Elimination of All Forms of Discrimination The SOGIE Equality Bill hopes to enable a future where all forms of discrimination based on sexual orientation, gender identity, and gender expression are eliminated. It lists and defines discriminatory acts which are to be proscribed and penalized.
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Introduction of the Concept of SOGIE This SOGIE Equality Bill, once passed into law, will introduce into Philippine legislation the concept of SOGIE or Sexual Orientation, Gender Identity, and Gender Expression. The concept of SOGIE was mentioned in the Magna Carta for Women and the Implementing Rules and Regulation of the Anti-Bullying Act, but both laws failed to define them. This bill took the opportunity to infuse Philippine law with these international human rights concepts, defined as follows:
“Sexual Orientation refers to the direction of emotional sexual attraction or conduct. This can be towards people of the same sex (homosexual orientation), towards people of both sexes (bisexual orientation), towards neither, or towards people of the opposite sex (heterosexual orientation).” “Gender Identity refers to the personal sense of identity or expression as characterized, among others, by manners of clothing, inclinations, and behavior in relation to masculine or feminine conventions. A person may have a male or female identity with the physiological characteristics of the opposite sex.” “Gender Expression refers to the outward manifestations of the cultural traits that enable a person to identify as male or female according to patterns that, at a particular moment in history, a given society defines as gender appropriate.” Meanwhile, the definition of discrimination used in this bill is from General Comment No. 20 of the United Nations Committee on Economic Social and Cultural Rights. It is defined as:
“Discrimination shall be understood to imply any distinction, exclusion, restriction, or preference which is based on any ground such as sex, sexual orientation, gender identity, whether actual or perceived, and which has the purpose of effect of nullifying or impairing the recognition, enjoyment, or exercise by all persons of an equal footing of all rights and freedoms.” photo from Rappler
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List of Discriminatory Practices 1. 2. 3. 4. 5.
The following acts are considered by this bill as discriminatory and therefore unlawful: Denial of access to public service, with special mention of military service Differential treatment of an employee, a job applicant, or any one engaged by virtue of a contract of service Denial of admission to, expulsion from, or discipline of a student by an educational institution Refusal or revocation of accreditation, formal recognition, or registration of any organization, political party, or institution 6. Denial of access to medical and health services 7. Denial of application or revocation of professional license 8. Denial of access to establishments, facilities, utilities, or services, including housing 9. Forced medical or psychological examination to determine and/or alter a person’s SOGIE without his or her consent (This bill requires the approval of the appropriate Family Court for minors) 10. Harassment by the police or military 11. Other analogous circumstances
Penalty for Discrimination The SOGIE Equality Bill will give the court the discretion to impose upon a person, corporation, or organization guilty of committing discriminatory acts listed above a fine within the range of One Hundred Thousand Pesos (P100, 000) to Five Hundred Pesos (P500, 000) with imprisonment of not less than one (1) year but not more than six (6) years, and community service comprising human rights education and exposure to the plight of the victims. Administrative sanctions under the Civil Service Law may also be imposed upon government officials who refuse to investigate, prosecute, or act on a complaint for a violation of this Act.
Redress Mechanism for SOGIE-related Offenses The bill should expand the roles of some public offices to attend to cases of SOGIE-related offenses. This should include Women and Children’s Desks in police stations nationwide, the Commission on Human Rights, the Civil Service Commission, and the Department of Labor and Employment.
Promotion of SOGIE Diversity and Non-Discrimination The bill proposes for the State to initiate programs that should eliminate SOGIE-based stigma by guaranteeing inclusive social protection programs, mandating diversity program in public and private institution including the incorporation of this program in the gender and development programs of public offices, and implementing SOGIE-specific gender sensitivity education and information dissemination.
Positive portrayal of LGBT persons in media The Congress version, House Bill 4982, proposes incentives and awards be given to media organizations that defend and promote the human rights of LGBT people and empower them through positive portrayals.
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Arguments Against the Bill ADB is a class legislation and will create special rights for LGBTIQs It is a common misconception that this bill in its current format only seeks to protect LGBTIQs but the principles behind this bill are precisely—equality and nondiscrimination. It aims to protect ALL persons regardless of sexual orientation and gender identity or expression. It will not only cater to LGBTIQs. It will only abolish the notion of gender binary, but rights of other gender identities such as, males and females, against discrimination will also be recognized. ADB is an unnecessary piece of legislation; LGBTIQs are already protected by the Civil Code Provisions on Human Relations Gender-based discrimination needs a specific protective law. SOGIE is a human rights concept that needs to be defined first and introduced in Philippine legislation to erase the notion that fundamental equality is only guaranteed between (non-LGBT) men and women. ADB is our compliance with our obligation under the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the International Covenant on Economic Social and Cultural Rights, and our very own Equal Protection Clause in the 1987 Constitution. The Civil Code Provisions on Human Relations do not provide enough recognition of the human rights concepts of equality and nondiscrimination. More than penalizing discrimination as a civil wrong, ADB aims to criminalize it as a human rights violation.
ADB will violate the Right to Religious Freedom Human rights protection does not negate the exercise of religion freedom. It was CBCP President Archbishop Socrates Villegas himself who said that passing an anti-discrimination law is going to be a “gesture of charity.” In the same statement he issued on 3 March 2015, the Archbishop urged priests to care for all, including the LGBT community. He warned parents against imbuing in children hate against LGBTs. He also instructed Catholic schools specifically to implement a “zero-tolerance” policy against bullying of gender non-conforming students. Discrimination, according to Villegas, does not conform to Pope Francis’ vision of the Church as the sacrament of divine mercy and compassion. It is contrary to the Gospel spirit. Verbal and physical violence against LGBTs is an offense against God Himself. photo from MindaNews
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ADB will allow Same-Sex Marriage There is nowhere in the bill which tends to amend Article 1 of the Family Code defining marriage as a special contract between a man and woman. ADB only aims to prohibit discriminatory practices in schools, work place, healthcare, public service, and other violation of fundamental rights based on SOGIE. A separate bill on marriage equality needs to be filed.
ADB will confuse bathroom rules, school uniforms, and sex-based facilities ADB is a human rights legislation that addresses the historical prejudice against LGBTIQs. It is time to remove our gender-insensitive rules that have been contributing to the systemic homophobia, transphobia, and stigma. If a rule or a policy in an educational institution, workplace, or establishment will devalue the dignity of another human being, it should be declared discriminatory and should be proscribed. We need to remind schools, employers, establishments, even government agencies that comfort rooms are made to provide comfort; and uniforms are donned to identify to the institution one belongs to. These regulations are not imposed to promote gender binaries. It is time to challenge these rules and policies. ADB requires them to be at least SOGIE-sensitive.
About the Policy Brief This policy brief intends to provide the salient points of the SOGI-specific Anti-Discrimination Bills filed during the 17th Congress. The production of this material is supported by APCOM.
About us TLF Sexuality, Health, and Rights Educators Collective, Inc. (TLF Share, or more known as TLF) is a pioneering community organization promoting the sexual health and human rights of gays, bisexuals, other men who have sex with men, and transgender persons. Along with other LGBT groups, it is pushing for the passage of laws punishing stigma and discrimination on the basis of sexual orientation and gender identity and expression. Contact details: TLF SHARE, Inc., 63 Masikap Ext., Brgy Central, Diliman, Quezon City. Telefax: 632-4368595. Email:
[email protected]. Website: facebook.com/TLFShare
