30. Silverio vs. Republic, G.R. No.

174689, October 22, 2007

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.

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) 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.

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.

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.