SOGIE: Hard questions over bill vs gender-based discrimination

Christian V. Esguerra, ABS-CBN News

Posted at Sep 11 2019 09:43 AM | Updated as of Sep 11 2019 11:10 AM

University students pose beside an Lesbian, Gay, Bisexual and Transgender (LGBT) advocacy standees at a University in Manila. The group is supporting the passage of the Sexual Orientation Gender Identity and Expression Bill at the Senate. Jonathan Cellona, ABS-CBN News/file

MANILA -- A bill seeking to eliminate gender-related discrimination has raised tough questions from conservative legislators worried that it may inadvertently infringe on the rights of others in the Philippines.

Senators have begun committee debates on the proposal to penalize discrimination based on one’s Sexual Orientation and Gender Identity or Expression (SOGIE), a divisive issue in a predominantly Catholic country where a birth control law was passed just 6 years ago.

SOGIE supporters were hoping to build on that momentum, despite strong opposition from the likes of Senate President Vicente Sotto III, who argued that a more encompassing anti-discrimination bill might be a better option.

Sotto was also at the forefront of the campaign against the reproductive health law, and now occupies a greater position of influence in the upper chamber.

But Sotto will have only 1 vote as any other senator, said Sen. Risa Hontiveros, principal author of a version of the SOGIE bill, adding it had a “good fighting chance” in the current Congress.

“I don’t consider it a roadblock,” she told ABS-CBN News.

“I know that they have opposing opinions, so I deal with them on that basis,” she said, referring to fellow senators who had openly expressed misgivings over her bill.

President Rodrigo Duterte on Tuesday said he would certify the SOGIE bill as urgent. But Malacañang later clarified he was referring to an anti-discrimination measure, not the one specifically for LGBT people.

STIGMA

The proposal is seen as a protection for “individuals and communities that experience human rights violations on the basis of SOGIE.”

But details of what would constitute “discriminatory practices” must be carefully scrutinized, said Sen. Joel Villanueva, son of the leader of one of the biggest Christian churches in the Philippines.

His father, evangelist Bro. Eddie Villanueva of the Jesus Is Lord church, sits in the House of Representatives.

The bill defines “stigma” as the “dynamic devaluation and dehumanization of an individual in the eyes of others.”

Villanueva sought clarification on whether a religious institution’s scripture-based teaching that same-sex relationship is a sin would constitute a “stigma” for LGBT people.

Or can a Catholic school exclusive to girls be compelled to accept transgender women, a question posed by Sen. Nancy Binay in a previous hearing?

“Until now, ang hindi naipapaliwanag nang husto, meron bang matatapakan tayong rights, because yung rights not to be discriminated, given yun e,” Villanueva told ABS-CBN News.

(Until now, it has not been explained fully. Are there rights that will be violated because the right against discrimination is a given.)

Hontiveros said her bill would not penalize schools run by religious organizations if they opted not to accept transgender children, consistent with their beliefs.

CAKESHOP CASE

In 2012, a baker in the United State came under fire for refusing to make a wedding cake for a gay couple. The couple refused to buy elsewhere and sued.

The US Supreme Court later ruled in favor of the cake shop owner, upholding his right to his religious beliefs and free expression.

Villanueva said a similar case might arise in the Philippines pitting religious beliefs against anti-discrimination guarantees, if the SOGIE was passed into law.

“These are very sensitive issues that should be addressed first,” he said.

“It’s sad that there are a lot of attacks—from both sides—without really looking specifically into the provisions of the bill.”

Hontiveros said her proposal respected religious freedom.

But if the cake shop case happened here, the senator said the owner would have the "legal obligation to practice non-discrimination," citing the business permit issued by the local government.

"The principle of the bill is he would have to sell the cake," she said.

"If we are able to pass the bill into law and parts of the bill are assailed in court, then let it be."

‘SUPERFICIAL DIFFERENCE’

The bill makes fine distinctions among gender expression, gender identify, and sexual orientation.

In gender identity, an individual may have a “male or female identity with the physiological characteristics of the opposite sex,” according to the bill.

It defines sexual orientation as the “direction of emotional sexual attraction or conduct.”

Gender expression is the “outward manifestation of the cultural traits that enable a person to identify as male or female,” it said.

Such definitions are deemed as a “superficial difference,” according to Courage Philippines, a Roman Catholic group “providing spiritual support for men and women with same-sex attractions.”

“To classify individuals according to their sexual orientation is unreasonable,” it said.

“Notwithstanding the argument that sexual orientation can be changed, the indicators of gender identity — manners of clothing, inclinations, and behavior — are also undeniably factors in social science that can change relatively in time.”

FEELINGS

“It’s important to note that it’s very hard, perhaps it’s impossible for us to legislate a measure based on feelings,” said Villanueva.

“If you say na I feel like I’m a woman but I’m actually a man, and then the next day, I say otherwise, pano yun (what will happen)?” he added, warning of possible difficulties in implementing a SOGIE law.

The bill, critics warn, may also raise complications in certain sports events if, say, a trans woman sought to compete in the women’s category.

Hontiveros said she had read online about a trans woman who defeated a woman in a mixed-martial arts bout.

Reports quoted the vanquished fighter as supposedly saying: “I’ve never felt so overpowered ever in my life and I am an abnormally strong female in my own right.”

Hontiveros said concerns about ensuring fair play in sports could be tackled during deliberations on the SOGIE bill.

“That’s a fair area for discussion and debate,” she said. “We could possibly put safeguards... I believe, the community, the advocates would also be open to amendments regarding physicality.”

BACKDOOR?

Critics of the bill warned it could essentially allow same-sex unions.

The provision in question will penalize a person who would “deny an application for or revoke, on the basis of SOGIE, any government license, authority, clearance, permit, certification, or other similar documents necessary to exercise a profession, business, or any other legitimate calling.”

Rizalito David, executive director of Prolife Philippines, said a same-sex couple could sue an agency for discrimination, if an application for marriage license was rejected.

"And if you have a Supreme Court that is liberal, mangyayari dyan, judicial legislation, male-legalize ang same-sex marriage through judicial legislation, not by congressional act," he said.

Hontiveros said the bill would not be a backdoor to legalize same-sex marriage, insisting there was no mention of it.

"You can go through the SOGIE bill with a fine-tooth comb," she said.

"Although it was superfluous, we were willing to put in a specific provision that this does not cover marriage licenses."