STUDENT NO: 201922366

THE LGBT RIGHT AGAINST GENDER DISCRIMINATION

IN THE INTERPLAY OF INTERESTS AND PROBLEMS
IN THE USE OF PUBLIC RESTROOMS IN THE PHILIPPINES

Gone is the era when women were considered as “second-class

citizens” in a testosterone-driven world and their pursuit for equality and
empowerment was the resounding theme of political debates around the world.
They have come a long way and have seen the light of day after all the blood
and tears that they shed just to reach the pinnacle of what they had been
fighting for centuries – equal entitlement of rights and privileges with men.
Now, the society has leveled the playing field for women. They changed the
landscape of a gender-biased society and succeeded in claiming their rightful
place.

With the worldwide recognition of women’s rights and the protection

mechanisms for their violation, the outcry of women for equality and
empowerment is no longer as deafening as it was before. However, in this era
of consciousness and vigilance for human rights, a different voice of gender
discrimination has emerged and grown louder and louder day by day – the
voice of the so called “third sex” constituted by lesbians, gays, bisexuals and
transgenders (LBGTs). For reasons relating to their sexual orientation, they
suffer from different forms of condemnation, discrimination, abuse and
punishment from a society that struggles to understand and accept their
gender identities. From bullying to commission of hate crimes, LGBTs are
being punished for their gender and stripped of their basic human dignity. To
address this social epidemic, a growing movement for the respect, protection
and promotion of gender equality rights of the LGBTs has risen globally.
Different international organizations and notable personalities have given
voice to these rights. Some governments around the world have heard their
voices and crafted legislations to accord certain rights to LGBTs.

Significantly, through the 1994 case of Toonen v. Australia,1 which

held that sexual orientation is included in the reference to “sex” under Articles

1 U.N. Doc CCPR/C/50/D/488/1992 (1994).

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2 and 26 of the International Covenant on Civil and Political Rights, LGBTs
can rightfully assert that they cannot be discriminated on the basis of sex.
Notably, in 2011, the United Nations Human Rights Council (UNHRC) passed
its first resolution2 recognizing LGBT rights, following which the Office of the
High Commissioner for Human Rights (OHCHR) issued a report documenting
violations of the rights of LGBT people, including hate crimes, criminalization
of homosexual activity, and discrimination. 3 Following the issuance of the
report, the UN urged all countries, which had not yet done so, to enact laws
protecting basic LGBT rights. In 2016, the UNHRC passed a resolution to
appoint an Independent Expert to find the causes of violence and
discrimination against people due to their gender identity and sexual
orientation, and discuss with governments about how to protect those
people.4 This long-term OHCHR-based mandate has been seen as the UN's
“most overt expression of gay rights as human rights.”

However, the fight for gender equality by the LGBT community is far
from over. Recently, a Filipino transwoman who was barred by a janitress
from using a female restroom in a mall took the media by storm. According to
twenty-eight-year old Gretchen Diez, the janitress told her not to enter the
female restroom and that she should use the male restroom instead. Diez
called out the alleged harassment and broadcasted the incident on Facebook
using her cellphone, which irked the janitress, who tried to tap away her
phone thrice and said, “Hindi ka maganda para maging sikat ka…Share at like
n’yo para sumikat and baklang ‘to.” Worse, she was also dragged to the
administration security office where she was detained for more than an hour
and subjected to further acts of ridicule and harassment. Then, she was
brought to the Quezon City Police Station for supposedly documenting the
whole incident on video and handcuffed at the hospital where she was

2 17/19 Human rights, Sexual Orientation and Gender Identity. (2011). Retrieved from
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G11/148/76/PDF/G1114876.pdf?OpenElement
ny.un.org/doc/UNDOC/GEN/G11/148/76/PDF/G1114876.pdf?OpenElement
3 UN issues first report on human rights of gay and lesbian people. (2011, December 15). Retrieved

from https://news.un.org/en/story/2011/12/398432-un-issues-first-report-human-rights-gay-and-lesbian-
people
4 Ausserer C. (2016, July 26). UN Passes Historic Resolution to Establish Independent SOGI Expert.

Retrieved from https://www.boell.de/en/2016/07/26/un-passes-historic-resolution-establish-independent-

sogi-expert

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brought for medical examination. Eventually, Diez was released and the
janitress apologized for her ignorance. Likewise, the management of the mall
publicly apologized to Diez and the LBGT community. But Diez refused to
downplay the incident in the light of Quezon City’s Gender Fair Ordinance5
and filed charges against the management of the mall and the security and
sanitation agencies whose personnel were involved in the incident.

The case of Diez is just one of the many harassment incidents that
transgenders encounter in using public restrooms. Pointedly, in the 2015
survey conducted by the National Center for Transgender Equality in the
United States (US), 12% of transgender people was found out to have been
verbally harassed in public restrooms, 1% were physically attacked and same
percentage was sexually assaulted while 9% said they were denied access to
a bathroom.6

Because of the hype on the restroom incident, the issue on gender

equality was brought back in the national conversation and stirred the
Philippine Government to take an in-depth look on the real issue of gender
inequalities being faced by the LGBT community in the country. The call for
an enactment of a law that prohibits gender-based discrimination has grown
louder prompting the senate to conduct a hearing on the proposed law known
as the Sexual Orientation and Gender Identity and Expression (SOGIE) bill,
which essentially seeks to prevent various economic and public
accommodation-related acts of discrimination against people based on their
sexual orientation, gender identity or expression. President Rodrigo Duterte,
himself, vowed to push for the passage of the bill by the Congress.

As the bill becomes a hot topic for discussion across all genders, the
comfort room fiasco, which reignited the gender equality issue of the LGBTs,
raises a legitimate question of whether LGBTs can be allowed to use public
restrooms according to their gender identities.

5Ordinance No. SP-2357, Series of 2014

6Trotta, D. (2016, December 8). U.S. transgender people harassed in public restrooms: landmark
survey. Retrieved from https://www.reuters.com/article/us-usa-lgbt-survey/u-s-transgender-people-
harassed-in-public-restrooms-landmark-survey-idUSKBN13X0BK

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 The answer is not as easy as a “Yes” or a “No.” In view of the absence
of a national legislation requiring establishments to provide a gender-neutral
restroom, majority of the public comfort rooms in the country are still binary in
nature, catering only for either male or female. With this scenario, where will
the LGBTs come in? How will they respond when nature calls in a public
place? The truth is, regardless of which restroom they enter, whether the one
with which they are biologically identified or that which they identify
themselves with based on their sexual orientation, still, there will be an
atmosphere of awkwardness and discomfort not only to the LGBT concerned
but also to straight men or women inside the restroom. To deal with the
situation, there are two possible scenarios for the LGBTs: they may either
control themselves from answering the “call of nature” or go to the restroom of
their choice and ignore others’ reaction or their own feeling of awkwardness.
Either way, they experience discomfort - a sad price that they have to pay for
going out in public and living the truth of their gender identity.

During the senate hearing on the SOGIE bill, Senator Ronald dela
Rosa voiced out a concern on allowing transgender people to use gender-
specific restrooms. He said that male perverts might use the anti-
discrimination policies to cross-dress and be voyeurs in the women’s
restrooms. He added that the sentiments and welfare of the “real women”
should also be considered. His apprehension, however, was countered by an
LGBT group president Naomi Fontanas who responded that there are no
proven cases yet of transgender women harassing females in shared comfort
rooms in the Philippines and that stranger-to-stranger violence is very rare all
over the world.

Indeed, there is yet no recorded incident in the Philippines of a

transgender harassing another woman inside a toilet. However, the
lawmaker’s apprehension makes a lot of sense and is not far from happening.
Few months ago, a transgender woman from Scotland, who goes by the
name of Katie Dolatowski attacked a ten-year old girl inside a female toilet in
a supermarket by grabbing her face and forcing her into the cubicle before

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demanding that she took her trousers off. In the course thereof, she also
threatened to stab the young girl’s mother. In a separate incident, she carried
out a similar attack in a public restroom by filming a twelve-year old girl over a
partition wall using her cellphone.7

Few years back, it was reported in Georgia, USA, that a five-year old
girl was sexually assaulted in a female bathroom at Oakhurst Elementary
School by a five-year old boy who identified himself as gender-fluid. According
to the complaint, as the victim was emerging from a stall, the assailant pushed
her against a wall, pushed his hand between her legs, and repeatedly felt and
poked at her genitals while she struggled and called out for him to stop.
Unfortunately, no one came to help. The boy had permission to enter the girls’
bathroom under a policy that “required” schools to “admit boys who identify as
female into girls’ restrooms, locker rooms, and shower areas on school
premises.”8

The school policy appeared to be an offshoot of the 2016 “guidance”

issued by the U.S. Department of Justice and U.S. Department of Education
during the Obama administration providing that state and private educational
institutions had to allow transgender students to use toilets according to their
gender identity.9 In 2017, however, the Trump administration scrapped that
policy as it caused confusion and “significant litigation” over how it should be
applied and left the matter to the discretion of state and school authorities.10

Apparently, the controversy on whether LGBTs can be allowed to use

the restroom of their gender identities does not only raise an issue of gender
discrimination but also the right to security of persons. This is not only a safety

7 Corbishley, S. (2019, March 16) Transgender woman, 18, sexually assaulted girl, 10, in Morrisons
toilet. Retrieved from https://metro.co.uk/2019/03/16/transgender-woman-18-sexually-assaulted-girl-10-
morrisons-toilet-8914577/
8 Ward, E. (2018, October 10). 5-Year-Old Girl Allegedly Assaulted in School Bathroom, Transgender

Policy Being Investigated. Retrieved from https://www.cnsnews.com/news/article/emily-ward/5-year-old-

girl-allegedly-assaulted-school-bathroom-transgender-policy-being
9 Eilperin, J. (2016, May 13). Obama administration directs schools to accommodate transgender

students. Retrieved from https://www.washingtonpost.com/politics/obama-administration-to-instruct-

schools-to-accommodate-transgender-students/2016/05/12/0ed1c50e-18ab-11e6-aa55-
670cabef46e0_story.html?noredirect=on
10 Transgender bathrooms: Trump administration reverses Obama policies. (2017, February 22).

Retrieved from https://www.cbsnews.com/news/trump-transgender-bathroom-obama-policies/

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issue of women in public restrooms but also that of the LGBTs who may
experience harassment, which already happened in the case of Diez. While it
may be argued that there are existing laws that can address the concern on
any possible violence in allowing LGBTs to use the comfort room of their
gender identities, the assertion, however, seems to be counterproductive as it
relegates the significance of crime prevention in favor of the right for gender
equality by the LGBTs. While LGBTs are entitled to their right against gender
discrimination, it should not, however, be exercised at the expense of opening
a door for evildoers to take advantage of situations created by such right to
victimize vulnerable individuals.

On the other note, will the provision of a separate restroom for the
LGBTs allay the fear for the security of women and the LGBTs? President
Duterte is inclined to such proposal. Providing a separate restroom for the
LGBTs can prevent the discomforts and assuage the apprehension on the
sharing of restrooms by the LGBTs with straight men or women. It can create
a safe place for every gender. Meanwhile, some are against it, as it will
purportedly even highlight the discrimination of the LGBTs, especially for
some of its members seeking an equal treatment with men or women
depending on their sexual orientation. In effect, they are saying that they
should be allowed to share the restroom of the gender with which they identify
themselves. Apparently, it again goes back to the issue of safety and
discomfort involving women and the LGBTs. Prudence dictates that the
general welfare should be made to prevail over the interest of a single sector.
Thus, the perceived inequality by some members of the LGBT community in
providing a separate LGBT restroom has to give way to a more pressing
concern for the safety not only of the straight women but also of the LGBT
community.

With this dilemma, there appears to be another approach to the

situation and that is by providing single-user unisex restrooms that will cater to
all genders regardless if an individual is a male, a female or an LGBT. With
this alternative, it seems that it is not only the right to gender equality by the
LGBTs that is addressed but also ensures the right to safety and the right to

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privacy of all genders. This type of restroom, however, has a drawback. It
appears to be impractical and inefficient in a high-traffic setting such as, in
malls, airports and large school campuses. Since this type of restroom can
only cater to users one at a time, the queues will be longer outside the
restroom and concomitantly cause inconvenience to the users and aggravate
the “call-of-nature discomfort.”

On the other hand, there are proponents abroad advocating for what
appears to be a novel and liberal approach to address this concern - a
provision for multi-user mixed-gender restroom. Pointedly, in 2020, Utah,
USA, through its Sprague Library in Salt Lake City, will have its first ever all-
inclusive multi-user public restroom. 11 Under this type, several people
regardless of gender will share a restroom with provision only for separate
stalls that can cater to every user. It will not only address the problem of
impracticality of a single-user unisex restroom but also promote inclusivity
thereby eliminating gender biases and discrimination. This type of restroom
set-up, however, also raises some serious concerns for the safety of children
and women. It is seen as creating a “moral hazard” insofar as it will be
attractive to pedophiles who might exploit the space for their own purposes
and to sexual predators who might look at it as an opportunity to harass and
assault women. The lack of gendered privacy is also seen as a potential issue
to this type of set-up. Apparently, putting up this type of restroom is very
challenging, not just due to its novelty, but also because it presents the
possibility of interpersonal interaction between genders in a space that is
simultaneously coded as private and public.

The practice in some establishments in the country and abroad is to

provide a single-user unisex restroom in addition to existing shared restrooms
for male or female. While it seems to address the problem of gender
discrimination of the LGBT in the use of public restrooms, enforcement,
however, is another thing. A case in point is the Gender Fair Ordinance by the

11Aaron, R. (2019, May 1). Mixed company: Utah’s first all-gender, multi-user public restroom to debut
in 2020. Retrieved from https://www.abc4.com/news/local-news/mixed-company-utahs-first-all-gender-
multi-user-public-restroom-to-debut-in-2020/

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Quezon City Government. Since 2014, it has already begun requiring all
government agencies, private offices and commercial/industrial
establishments in the city to designate toilet rooms and lavatories labeled as
an all-gender CR. Anyone who violates the same can be imprisoned for sixty
days to one year or pay a fine of Php1,000.00 to Php5,000.00. Yet, despite
the existence of the ordinance for five years already, most of the
establishments in the City have not yet complied with said requirement.
Perhaps, one of the contributory factors for non-compliance is the additional
cost that it will entail for Government offices and private establishments to
construct and maintain a third restroom. Also, the laxity of local officials in the
enforcement of the Ordinance and, perhaps, the indifference of some people
on the rights being promoted by said Ordinance are just some of the factors
that render the directive to be ineffectual. Apparently, it goes to show that
implementation and compliance can pose another arduous challenge in a
passage of a law for gender equality of the LGBTs.

Sadly, while the Philippines is ranked as one of the most gay-friendly

nations in the world according to a 2013 global survey,12 yet, to date, the
country still lacks even a basic national legislation on gender equality of the
LGBTs. While it is good to know that the restroom incident made the
Government re-examine the human rights situation of the LGBTs in the
country, but the big question remains: is it a legislative priority of the
Government at the moment or is it just one of those national issues where
politicians happily took a ride on for self-promotion but is bound to be buried
into oblivion?

12 Tubeza, P. (2013, June 8). PH Ranks Among Most Gay-Friendly in the World. Retrieved from
https://globalnation.inquirer.net/76977/ph-ranks-among-most-gay-friendly-in-the-world