GENDER AND THE LAW 2022 exists as social constructs —

by: Atty Hendrix Bongalon (hcbongalon@slu.edu.ph) as gender “roles” or “norms.”

TOPIC 1: EVERYONE HAS SOGIE: UNDERSTANDING These are defined as the
SEXUAL ORIENTATION, GENDER IDENTITY AND socially constructed roles,
EXPRESSION, AND SEX CHARACTERISTICS (SOGIESC) behaviors, and attributes that a
A. Sex vs. Gender society considers appropriate
SEX GENDER for men and women.
Civil status of a person A social construct used to B. Sexual Orientation
acquired by birth having a categorize man, woman, or  Direction of emotional, sexual attraction, or conduct towards
system of reproduction other identity which is usually people of the same gender (homosexual orientation) or
corresponding to that based on one’s assigned sex towards people of more than one gender (bisexual), or
belonging to either male, at birth. towards people of different gender (heterosexual)or to the
female, or intersex. absence of sexual attraction (asexual attraction).
Determined by the conception  Refers to a person’s physical, romantic, and/ or emotional
Biological characteristics that of tasks, functions, and roles attraction towards other people.
define men and women. attributed to women and men  Heterosexual- They are sexually or romantically attracted to
in society and in public and people of the opposite sex. Heterosexual men are sexually
The biological differentiation private life. or romantically attracted to women, and heterosexual
between male and female women are sexually or romantically attracted to men.
physical differences between Involves how a person  Homosexual- Homosexuality refers to attraction between
people who are male, female, identifies himself or herself. people who are the same sex.
or intersex. A person typically Unlike natal sex, gender is not  Bisexual - attracted to people of one’s own gender and
has their sex assigned at made up of binary forms. people of other gender(s). Two common misconceptions are
that bisexual people are attracted to everyone and anyone,
birth based on physiological Instead, gender is a broad
or that they just haven’t “decided.” Often referred to as “bi.”
characteristics, including their spectrum. A person may
 Pansexual/Fluid - attracted to people regardless of gender.
genitalia and chromosome identify at any point within this
Sometimes also or alternately “omnisexual” or “polysexual.”
composition. This assigned spectrum or outside of it
 Asexual - not sexually attracted to anyone and/or no desire
sex is called a person’s “natal entirely. People may identify
to act on attraction to anyone. Does not necessarily mean
sex.” with genders that are different sexless. Asexual people sometimes do experience
from their natal sex or with affectional (romantic) attraction.
none at all. These identities C. Gender Identity
may include transgender,  Identity: who or what we are; what we think about ourselves
nonbinary, or gender-neutral.
 Gender identity reflects a deeply felt and experienced sense
There are many other ways in
of one’s own gender. It is not determined by assigned sex. A
which a person may define
person’s innermost concept of self as man, woman, or
their own gender. Gender also
 another non-binary identity which may or may not  Gender Fluid – having or expressing a fluid or unfixed
correspond with their sex or gender assigned at birth. gender identity. It is preferring to remain flexible than commit
 Cisgender – it is the term used to describe people whose to a single gender, may move between genders or express
gender identity and/ or expression aligns with those typically multiple genders.
associated with the sex assigned to them at birth. The prefix  Gender transitioning- it is the process some transgender
cis- means “on this side of” A term used to call attention to people go through in order to be and live as gender with
the privilege of people who are not transgender. Male: boy/ which they identify, rather than the gender that corresponds
man/ masculine; female: girl/ woman/ feminine with the sex assigned to them at birth. It is internal, social,
 Transgender – it is an umbrella term for people whose legal, and medical. It is the process of changing one's
gender identity and/ or expression is different from those gender presentation or sex characteristics to accord with
typically associated with the sex assigned to the at birth. It is one's internal sense of gender identity – the idea of what it
used as an adjective, not a noun. Eg Juan is a transgender means to be a man or a woman, or to be non-binary or
man, not Juan is a transgender. First coined to distinguish genderqueer.
gender benders with no desire for surgery or hormones from  Transsexual - The term transsexual has historically been
transsexuals, those who desired to legally and medically used to refer to individuals who have medically and legally
change their sex, more recently transgender and/or trans changed their sex, or who wish to do so. Most transsexual
has become an umbrella term popularly used to refer to all people feel a conflict between their gender identity and the
people who transgress dominant conceptions of gender, or sex they were assigned at birth.
at least all who identify themselves as doing so. The D. Gender Expression
definition continues to evolve.  It refers to the external manifestation of a person’s gender
 Trans man (or transgender man or transexual man)- A identity. It may or may not conform to socially defined
person who has transitioned their identity from woman to behaviors and characteristics typically associated with being
man, and sometimes their body from female to male. either masculine or feminine.
(Assigned sex: frmale; gender identity: man)  It refers to the way a person communicates gender identity
 Trans woman (or transgender woman or transexual to others through behavior, clothing, hairstyles,
woman)- A person who has transitioned their identity from communication, or speech pattern, or body characteristics,
man to woman, and sometimes their body from male to among others.
female. (Assigned sex: male; gender identity: woman)  Masculine- having qualities or appearance traditionally
 Genderqueer/ queer- An umbrella identity term for gender associated with men.
identities other than man and woman. Being both man and  Feminine- having qualities or an appearance traditionally
woman, neither man or woman, or as falling outside these associated with women.
categories. It refers to those who transgress and challenge  Gender nonconforming is a broad term referring to people
the socially constructed gender binary. used by people who who do not behave in a way that conforms to the traditional
do not conform to norms of heterosexuality and/or the expectations of their gender, or whose gender expression
gender binary. A reclaimed slur, often used with a political does not fit neatly into a category. when an individual’s
connotation.
 appearance, behavior, interests, and self-concept vary, In her petition, she alleged that she was born on January 13,
either from the norms attributed to their biological sex, or 1981 and was registered as a female in the Certificate of Live
from masculine or feminine general norms in general. Very Birth but while growing up, she developed secondary male
few people fully conform to all gender norms for their characteristics and was diagnosed to have Congenital Adrenal
assigned gender. This may not mean that everyone is Hyperplasia (CAH) which is a condition where persons thus
gender nonconforming. Instead, it describes someone who afflicted possess both male and female characteristics. She
intentionally subverts these gender norms. further alleged that she was diagnosed to have clitoral
 Androgynous- identifying and/or presenting as neither hyperthropy in her early years and at age six, underwent an
ultrasound where it was discovered that she has small ovaries.
distinguishably masculine nor feminine. refers to the gender
At age thirteen, tests revealed that her ovarian structures had
expression of someone with both significant masculine and
minimized, she has stopped growing and she has no breast or
feminine characteristics
menstrual development. She then alleged that for all interests
E. Sex Characteristics and appearances as well as in mind and emotion, she has
 A person’s physical traits that indicate their biological sex, become a male person. Thus, she prayed that her birth
such as chromosomes, external, genitalia, gonads, certificate be corrected such that her gender be changed from
hormones, and internal reproductive organs, traits present at female to male and her first name be changed from Jennifer to
birth are called primary sex characteristics, whereas those Jeff.
that develop during puberty are called secondary sex
characteristics. To prove her claim, respondent testified and presented the
 Intersex- An umbrella term used to describe a wide range of testimony of Dr. Michael Sionzon of the Department of
natural bodily variations. In some cases, these traits are Psychiatry, University of the Philippines-Philippine General
visible at birth, and in others, they are not apparent until Hospital. Dr. Sionzon issued a medical certificate stating that
puberty. Some chromosomal variations of this type may not respondent's condition is known as CAH. He explained that
be physically apparent at all. genetically respondent is female but because her body
 Congenital Adrenal Hyperplasia- refers to a group of secretes male hormones, her female organs did not develop
genetic disorders that affect the adrenal glands, a pair of normally and she has two sex organs - female and male. He
walnut-sized organs above the kidneys. The adrenal glands testified that this condition is very rare, that respondent's uterus
produce important hormones, including: Cortisol, which is not fully developed because of lack of female hormones, and
regulates the body's response to illness or stress. that she has no monthly period. He further testified that
respondent's condition is permanent and recommended the
F. Case
change of gender because respondent has made up her mind,
Republic vs. Cagandahan (GR No. 166676,09/12/08)
adjusted to her chosen role as male, and the gender change
FACTS: On December 11, 2003, respondent Jennifer would be advantageous to her.
Cagandahan filed a Petition for Correction of Entries in Birth
Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna. The RTC granted respondent's petition to have her name and
sex be changed in his birth certificate. Thus, this petition by the
Office of the Solicitor General (OSG) seeking a reversal of the
abovementioned ruling. In the instant case, if we determine respondent to be a female,
then there is no basis for a change in the birth certificate entry
ISSUE: Did the trial court erred in ordering the correction for gender. But if we determine, based on medical testimony
of entries in the birth certificate of respondent to change and scientific development showing the respondent to be other
her sex or gender, from female to male, on the ground of than female, then a change in the subject's birth certificate
her medical condition known as CAH? entry is in order.

RULING: No. In deciding this case, we consider the compassionate calls for
recognition of the various degrees of intersex as variations
In so ruling we do no more than give respect to (1) the diversity which should not be subject to outright denial. "It has been
of nature; and (2) how an individual deals with what nature has suggested that there is some middle ground between the
handed out. In other words, we respect respondent's congenital sexes, a `no-man's land' for those individuals who are neither
condition and his mature decision to be a male. truly `male' nor truly `female'." The current state of Philippine
statutes apparently compels that a person be classified either
as a male or as a female, but this Court is not controlled by
Respondent here has simply let nature take its course and has
mere appearances when nature itself fundamentally negates
not taken unnatural steps to arrest or interfere with what he was
such rigid classification.
born with. And accordingly, he has already ordered his life to
that of a male. Respondent could have undergone treatment
and taken steps, like taking lifelong medication, to force his TOPIC 2: THE LGBTQIA+ AND THE PHILIPPINE LEGAL
body into the categorical mold of a female but he did not. He FRAMEWORK
chose not to do so. Nature has instead taken its due course in Ang Ladlad
respondent's development to reveal more fully his male
characteristics. Ang Ladlad LGBT Party v. COMELEC, GR No. 190582, 08
April 2010
FACTS:
Ultimately, we are of the view that where the person is The case has its roots in the COMELEC's refusal to accredit
biologically or naturally intersex the determining factor in his Ang Ladlad as a party-list organization under Republic Act (RA)
gender classification would be what the individual, like No. 7941, otherwise known as the Party-List System Act.
respondent, having reached the age of majority, with good
reason thinks of his/her sex. Respondent here thinks of himself Ang Ladlad is an organization composed of men and women
as a male and considering that his body produces high levels of who identify themselves as lesbians, gays, bisexuals, or trans-
male hormones (androgen) there is preponderant biological gendered individuals (LGBTs). Ang Ladlad first applied for
support for considering him as being male. Sexual development registration with the COMELEC in 2006. The application for
in cases of intersex persons makes the gender classification at accreditation was denied on the ground that the organization
birth inconclusive. It is at maturity that the gender of such had no substantial membership base.
persons, like respondent, is fixed.
Petitioner argued that the LGBT community is a marginalized morals (d) the Penal Code (Art 201) makes it punishable for
and under-represented sector that is particularly disadvantaged anyone to “publicly expound or proclaim doctrines openly
because of their sexual orientation and gender identity; that contrary to public morals. Likewise, the Civil Code (Article 694)
LGBTs are victims of exclusion, discrimination, and violence; considers a nuisance “any act, omission..or anything
that because of negative societal attitudes, LGBTs are else...which shocks, defies or disregards decency or morality”
constrained to hide their sexual orientation; and that Ang Ladlad
complied with the 8-point guidelines enunciated by this Court in Ang Ladlad argues that the denial of accreditation, insofar as it
Ang Bagong Bayani-OFW Labor Party v. Commission on justified the exclusion by using religious dogma, violated the
Elections. Ang Ladlad laid out its national membership base constitutional guarantees against the establishment of religion.
consisting of individual members and organizational supporters, Moreover, the Assailed Resolutions contravened its
and outlined its platform of governance. constitutional rights to privacy, freedom of speech and
assembly, and equal protection of laws, as well as constituted
The COMELEC (Second Division) dismissed the Petition on violations of the Philippines' international obligations against
moral grounds: Petitioner defines the Filipino Lesbian, Gay, discrimination based on sexual orientation.
Bisexual and Transgender (LGBT) Community a marginalized The COMELEC argued for the first time that the LGBT sector is
and under-represented sector that is particularly disadvantaged not among the sectors enumerated by the Constitution and RA
because of their sexual orientation and gender identity. Then 7941 (Party-List System Act).
proceeded to define sexual orientation as that which refers to a
person’s capacity for profound emotional, affectional and sexual ISSUE:
attraction to, and intimate and sexual relations with, individuals WON COMELEC should grant petitioner’s application for party-
of a different gender, of the same gender, or more than one list accreditation.
gender." This definition of the LGBT sector makes it crystal
clear that petitioner tolerates immorality which offends religious RULING:
beliefs wherein the respondent cited verses from the Bible and YES. COMELEC should grant petitioner’s application for party-
Koran; ANG LADLAD collides with Article 695 of the Civil Code list accreditation.
which defines nuisance; It also collides with Article 1306 and
1409 of the Civil Code and Article 201 of the Revised Penal Compliance with the Requirements of the Constitution and
Code which are grounded mainly on morality. Republic Act No. 7941
In Ang Bagong Bayani-OFW Labor Party v. Commission on
When Ang Ladlad sought reconsideration, the COMELEC Elections, "the enumeration of marginalized and under-
Chairman, breaking the tie and speaking for the majority, upheld represented sectors is not exclusive". The crucial element is not
the denial of Ang Ladlad's petition for accreditation as a sectoral whether a sector is specifically enumerated, but whether a
party in the party-list system. The reasons given were that (a) it particular organization complies with the requirements of the
cannot be said that Ladlad's expressed sexual orientations per Constitution and RA 7941.
se would benefit the nation as a whole (b) the LGBT group do
not present substantial differentiation, the Ladlad constituencies Ang Ladlad has sufficiently demonstrated its compliance with
are still males and females, and they will remain either male or the legal requirements for accreditation. Indeed, aside from
female protected by the same Bill of Rights that applies to all COMELEC’s moral objection and the belated allegation of non-
citizens alike. (c) it would be against generally accepted public existence, nowhere in the records has the respondent ever
found/ruled that Ang Ladlad is not qualified to register as a prosecution under the Revised Penal Code or any local
party-list organization under any of the requisites under RA ordinance, a civil action, or abatement without judicial
7941 or the guidelines in Ang Bagong Bayani. The difference, proceedings. A violation of Article 201 of the Revised Penal
COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof. Code, on the other hand, requires proof beyond reasonable
doubt to support a criminal conviction. Mere allegation of
Religion as the Basis for Refusal to Accept Ang Ladlad’s violation of laws is not proof, and a mere blanket invocation of
Petition for Registration public morals cannot replace the institution of civil or criminal
Our Constitution provides in Article III, Section 5 that "no law proceedings and a judicial determination of liability or culpability.
shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof." At bottom, what our non- Moral disapproval is not a sufficient governmental interest to
establishment clause calls for is "government neutrality in justify exclusion of homosexuals from participation in the party-
religious matters.” Clearly, "governmental reliance on religious list system. The denial of Ang Ladlad’s registration on purely
justification is inconsistent with this policy of neutrality." We thus moral grounds amounts more to a statement of dislike and
find that it was grave violation of the non-establishment clause disapproval of homosexuals, rather than a tool to further any
for the COMELEC to utilize the Bible and the Koran to justify the substantial public interest. Respondent’s blanket justifications
exclusion of Ang Ladlad. Government must act for secular give rise to the inevitable conclusion that the COMELEC targets
purposes and in ways that have primarily secular effects. [the homosexuals themselves as a class, not because of any
Court cited the case of Estrada v. Escritor and discussed the particular morally reprehensible act. It is this selective targeting
principle of benevolent neutrality - that government must pursue that implicates our equal protection clause.
its secular goals and interests but at the same time strive to
uphold religious liberty to the greatest extent possible within Equal Protection
flexible constitutional limits.] If a law neither burdens a fundamental right nor targets a
suspect class, Court will uphold the classification as long as it
Public Morals as a Ground to Deny Ang Ladlad’s Petition bears a rational relationship to some legitimate government
for Registration end. In Central Bank Employees Association, Inc. v. Banko
The Court is not blind to the fact that, through the years, Sentral ng Pilipinas, “in our jurisdiction, the standard of analysis
homosexual conduct, and perhaps homosexuals themselves, of equal protection challenges have followed the ‘rational basis’
have borne the brunt of societal disapproval. It is not difficult to test, coupled with a deferential attitude to legislative
imagine the reasons behind this censure – religious beliefs, classifications and a reluctance to invalidate a law unless there
convictions about the preservation of marriage, family, and is a showing of a clear and unequivocal breach of the
procreation, even dislike or distrust of homosexuals themselves Constitution."
and their perceived lifestyle. Nonetheless, we recall that the
Philippines has not seen fit to criminalize homosexual conduct. No law exists to criminalize homosexual behavior or
Evidently, therefore, these "generally accepted public morals" expressions or parties about homosexual behavior. Indeed,
have not been convincingly transplanted into the realm of law. even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here – that
The COMELEC’s reference to purported violations of our penal is, moral disapproval of an unpopular minority – is not a
and civil laws was insubstantial and misleading. Article 694 of legitimate state interest that is sufficient to satisfy rational basis
the Civil Code defines a nuisance the remedies for which are a review under the equal protection clause. The COMELEC’s
differentiation, and its unsubstantiated claim that Ang
Ladlad cannot contribute to the formulation of legislation that In the area of freedom of expression, United States courts have
would benefit the nation, furthers no legitimate state interest ruled that existing free speech doctrines protect gay and lesbian
other than disapproval of or dislike for a disfavored group. rights to expressive conduct. In order to justify the prohibition of
a particular expression of opinion, public institutions must show
Laws of general application should apply with equal force to that their actions were caused by "something more than a mere
LGBTs, and they deserve to participate in the party-list system desire to avoid the discomfort and unpleasantness that always
on the same basis as other marginalized and under-represented accompany an unpopular viewpoint."
sectors.
The OSG argues that since there has been neither prior
COMELEC’s act of differentiating LGBTs from heterosexuals restraint nor subsequent punishment imposed on Ang Ladlad,
insofar as the party-list system is concerned does not imply that and its members have not been deprived of their right to
any other law distinguishing between heterosexuals and voluntarily associate, then there has been no restriction on their
homosexuals under different circumstances would similarly fail. freedom of expression or association. The OSG fails to recall
We disagree with the OSG’s position that homosexuals are a that petitioner has established its qualifications to participate in
class in themselves for the purposes of the equal protection the party-list system, and the moral objection offered by the
clause.38 We are not prepared to single out homosexuals as a COMELEC was not a limitation imposed by law. To the extent,
separate class meriting special or differentiated treatment. therefore, that Ang Ladlad has been precluded, because of
COMELEC's action, from publicly expressing its views as a
Freedom of Expression and Association political party and participating on an equal basis in the political
Under our system of laws, every group has the right to promote process with other equally-qualified party-list candidates, we
its agenda and attempt to persuade society of the validity of its find that there has, indeed, been a transgression of Ang
position through normal democratic means. Freedom of Ladlad's fundamental rights.
expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those Non-Discrimination and International Law
that are favorably received but also to those that offend, shock, Our Decision today is fully in accord with our international
or disturb. Any restriction imposed in this sphere must be obligations to protect and promote human rights. In particular,
proportionate to the legitimate aim pursued. Absent any we explicitly recognize the principle of non-discrimination as it
compelling state interest, it is not for the COMELEC or this relates to the right to electoral participation, enunciated in the
Court to impose its views on the populace. Otherwise stated, UDHR and the ICCPR.
the COMELEC is certainly not free to interfere with speech for
no better reason than promoting an approved message or The principle of non-discrimination is laid out in Article 26 of the
discouraging a disfavored one. ICCPR, as follows: All persons are equal before the law and are
entitled without any discrimination to the equal protection of the
This position gains even more force if one considers that law. In this respect, the law shall prohibit any discrimination and
homosexual conduct is not illegal in this country. It follows that guarantee to all persons equal and effective protection against
both expressions concerning one's homosexuality and the discrimination on any ground such as race, colour, sex,
activity of forming a political association that supports LGBT language, religion, political or other opinion, national or social
individuals are protected as well. origin, property, birth or other status.
 Party-list system is essentially a tool for the advancement of
In this context, the principle of non-discrimination requires that social justice with the fundamental purpose of affording
laws of general application relating to elections be applied opportunity to marginalized and underrepresented sectors to
equally to all persons, regardless of sexual orientation.  Although participate in the shaping of public policy and the crafting of
sexual orientation is not specifically enumerated as a status or national laws. It is premised on the proposition that the
ratio for discrimination in Article 26 of the ICCPR, the ICCPR advancement of the interests of the marginalized sectors
Human Rights Committee has opined that the reference to "sex" contributes to the advancement of the common good and of our
in Article 26 should be construed to include "sexual nation’s democratic ideals.
orientation." Additionally, a variety of United Nations bodies
have declared discrimination on the basis of sexual orientation The Texts of the Constitution And of RA 7941
to be prohibited under various international agreements. The Constitution left the matter of determining the groups or
sectors that may qualify as "marginalized" to the hands of
Yogyakarta Principles not recognized as obligatory norms Congress. Pursuant to this constitutional mandate, RA 7941 or
Petitioners invoke the Yogyakarta Principles (the Application of the Party-List System Act was enacted in 1995.
International Human Rights Law in Relation to Sexual
Orientation and Gender Identity) which it declares to reflect The Court’s Previous Pronouncements
binding principles of international law. In Ang Bagong Bayani-OFW Labor Party, the Court stressed
We are not prepared to declare that these Yogyakarta that the party-list system is reserved only for those sectors
Principles contain norms that are obligatory on the Philippines. marginalized and underrepresented in the past (e.g., labor,
There are declarations and obligations outlined in said peasant, fisherfolk, urban poor, indigenous cultural
Principles which are not reflective of the current state of communities, elderly, handicapped, women, youth, veterans,
international law, and do not find basis in any of the sources of overseas workers, professionals and even those in the
international law enumerated under Article 38(1) of the Statute underground movement who wish to come out and participate).
of the International Court of Justice. They are those sectors traditionally and historically marginalized
and deprived of an opportunity to participate in the formulation
of national policy although their sectoral interests are also
o Dissenting Opinion of CJ. Corona traditionally and historically regarded as vital to the national
interest. That is why Section 2 of RA 7941 speaks of
Petitioner seeks accreditation by the respondent Commission "marginalized and under-represented sectors, organizations and
on Elections as a political organization of a marginalized and parties, and who lack well-defined political constituencies but
underrepresented sector under the party-list system. Finding who could contribute to the formulation and enactment of
that petitioner is not a marginalized sector under RA 7941, the appropriate legislation that will benefit the nation as a whole."
Commission on Elections denied its petition. Does petitioner
Ang Ladlad LGBT Party qualify, under the terms of the The concept of marginalized and underrepresented sectors
Constitution and RA 7941, as a marginalized and under the party-list scheme has been carefully refined by
underrepresented sector in the party-list system? concrete examples involving sectors deemed to be significant in
our legal tradition. They are essentially sectors with a
A System For Marginalized And Underrepresented Sectors constitutional bond, that is, specific sectors subject of specific
provisions in the Constitution, namely, labor, peasant, urban
poor, indigenous cultural communities, women, youth, veterans, Party, the meaning of "marginalized sectors" under the party list
fisherfolk, elderly, handicapped, overseas workers and system is limited and qualified. Hence, other sectors that may
professionals. qualify as marginalized and underrepresented should have a
close connection to the sectors mentioned in the Constitution
Marginalized sectors should be given a say in governance and in the law. In other words, the marginalized and
through the party-list system, not simply because they desire to underrepresented sectors qualified to participate in the party-list
say something constructive but because they deserve to be system refer only to the labor, peasant, fisherfolk, urban poor,
heard on account of their traditionally and historically decisive indigenous cultural communities, elderly, handicapped, women,
role in Philippine society. youth, veterans, overseas workers, professionals and other
related or similar sectors.
A Unifying Thread
Based on the language of the Constitution and of RA 7941 and This interpretation is faithful to and deeply rooted in the
considering the pronouncements of this Court in Ang Bagong language of the fundamental law and of its implementing
Bayani-OFW Labor Party and BANAT, the following factors are statute. It is coherent with the mandate of the Constitution that
significant: marginalized sectors qualified to participate in the party-list
(a) they must be among, or closely connected with or system but not mentioned in Section 5(2), Article VI are "such
similar to, the sectors mentioned in Section 5 of RA 7941; other sectors as may be provided by law" duly enacted by
(b) they must be sectors whose interests are traditionally Congress. It is also consistent with the basic canon of statutory
and historically regarded as vital to the national interest construction, ejusdem generis, which requires that a general
but they have long been relegated to the fringes of word or phrase that follows an enumeration of particular and
society and deprived of an opportunity to participate in specific words of the same class, the general word or phrase
the formulation of national policy; should be construed to include, or to be restricted to persons,
(c) the vinculum that will establish the close connection things or cases, akin to, resembling, or of the same kind or
with or similarity of sectors to those expressly mentioned class as those specifically mentioned. Moreover, it reins in the
in Section 5 of RA 7941 is a constitutional provision subjective elements of passion and prejudice that accompany
specifically recognizing the special significance of the discussions of issues with moral or religious implications as it
said sectors (other than people’s organizations, unless avoids the need for complex balancing and undue policy-
such people’s organizations represent sectors mentioned making.
in Section 5 of RA 7941) to the advancement of the
national interest and For Purposes of the Party-List System, Petitioner is Not a
(d) while lacking in well-defined political constituencies, Marginalized Sector
they must have regional or national presence to ensure First, petitioner is not included in the sectors mentioned in
that their interests and agenda will be beneficial not only Section 5(2), Article VI of the Constitution and Section 5 of RA
to their respective sectors but, more importantly, to the 7941. Unless an overly strained interpretation is resorted to, the
nation as a whole. LGBT sector cannot establish a close connection to any of the
said sectors. Indeed, petitioner does not even try to show its link
Following the texts of the Constitution and of RA 7941, and in to any of the said sectors. Rather, it represents itself as an
accordance with established rules of statutory construction and altogether distinct sector with its own peculiar interests and
the Court’s pronouncement in Ang Bagong Bayani-OFW Labor agenda.
 government require us to declare that only sectors expressly
Second, petitioner’s interest as a sector, which is basically the mentioned or closely related to those sectors mentioned in
legal recognition of its members’ sexual orientation as a right, Section 5 of RA 7941 are qualified to participate in the party-list
cannot be reasonably considered as an interest that is system. That is the tenor of the Court’s rulings in Ang Bagong
traditionally and historically considered as vital to national Bayani-OFW Labor Party and BANAT. As there is no strong
interest. At best, petitioner may cite an emergent awareness of reason for the Court to rule otherwise, stare decisis compels a
the implications of sexual orientation on the national human similar conclusion in this case.
rights agenda. However, an emergent awareness is but a
confirmation of lack of traditional and historical The Court is called upon to exercise judicial restraint in this
recognition. Moreover, even the majority admits that there is no case by strictly adhering to, rather than expanding, legislative
"clear cut consensus favorable to gay rights claims." policy on the matter of marginalized sectors as expressed in the
enumeration in Section 5 of RA 7941. The Court has no power
Third, petitioner is cut off from the common constitutional thread to amend and expand Sections 2, 3(d) and 5 of RA 7941 in the
that runs through the marginalized and underrepresented guise of interpretation. The Constitution expressly and
sectors under the party-list system. It lacks the vinculum, a exclusively vests the authority to determine "such other
constitutional bond, a provision in the fundamental law that marginalized sectors" qualified to participate in the party-list
specifically recognizes the LGBT sector as specially significant system to Congress. Thus, until and unless Congress amends
to the national interest. This standard, implied in BANAT, is the law to include the LGBT and other sectors in the party-list
required to create the necessary link of a particular sector to system, deference to Congress’ determination on the matter is
those sectors expressly mentioned in Section 5(2), Article VI of proper.
the Constitution and Section 5 of RA 7941.
A Final Word
Finally, considering our history and tradition as a people, to I do not say that there is no truth to petitioner’s claim of
consider the promotion of the LGBT agenda and "gay rights" as discriminatory and oppressive acts against its members. I am in
a national policy as beneficial to the nation as a whole is no position to make that claim. Nor do I claim that petitioner has
debatable at best. no right to speak, to assemble or to access our political
departments, particularly the legislature, to promote the
This Court can only apply and interpret the Constitution and the interests of its constituency. Social perceptions of sexual and
laws. Its power is not to create policy but to recognize, review or other moral issues may change over time, and every group has
reverse the policy crafted by the political departments if and the right to persuade its fellow citizens that its view of such
when a proper case is brought before it. Otherwise, it will tread matters is the best.
on the dangerous grounds of judicial legislation.
o Separate Concurring Opinion C.J Puno
In this instance, Congress, in the exercise of its authority under
Section 5(2), Article VI of the Constitution, enacted RA 7941. FIRST. The COMELEC’s ruling is completely antithetical to the
Sections 2, 3(d) and (5) of the said law instituted a policy when fundamental rule that "[t]he public morality expressed in the law
it enumerated certain sectors as qualified marginalized and is necessarily secular, for in our constitutional order, the religion
underrepresented sectors under the party-list system. Respect clauses prohibit the state from establishing a religion, including
for that policy and fidelity to the Court’s duty in our scheme of the morality it sanctions." As we explained in Estrada v.
Escritor, the requirement of an articulable and discernible
secular purpose is meant to give flesh to the constitutional Preliminarily, in our jurisdiction, the standard and analysis of
policy of full religious freedom for all. equal protection challenges in the main have followed the
rational basis test, coupled with a deferential attitude to
SECOND. The COMELEC capitalized on Ang Ladlad’s legislative classifications and a reluctance to invalidate a law
definition of the term "sexual orientation," as well as its citation unless there is a showing of a clear and unequivocal breach of
of the number of Filipino men who have sex with men, as basis the Constitution. However, Central Bank Employees
for the declaration that the party espouses and advocates Association, Inc. v. Bangko Sentral ng Pilipinas, carved out an
sexual immorality. This position, however, would deny exception to this general rule, such that prejudice to persons
homosexual and bisexual individuals a fundamental element of accorded special protection by the Constitution requires stricter
personal identity and a legitimate exercise of personal liberty. judicial scrutiny than mere rationality. Considering thus that
For, the "ability to independently define one’s identity that is labor enjoys such special and protected status under our
central to any concept of liberty" cannot truly be exercised in a fundamental law, the Court ruled in favor of the Central Bank
vacuum; we all depend on the "emotional enrichment from close Employees Association.
ties with others."
The United States Supreme Court has looked to four factors to
It has been said that freedom extends beyond spatial determine whether certain legislative classifications warrant
bounds. Liberty presumes an autonomy of self that includes more demanding constitutional analysis:
freedom of thought, belief, expression, and certain intimate (1) The history of invidious discrimination against the
conduct. These matters, involving the most intimate and class burdened by the legislation;
personal choices a person may make in a lifetime, choices (2) Whether the characteristics that distinguish the class
central to personal dignity and autonomy, are central to the indicate a typical class member's ability to contribute to
liberty protected by the due process clause. At the heart of society;
liberty is the right to define one’s own concept of existence, of (3) Whether the distinguishing characteristic is
meaning, of the universe, and of the mystery of human "immutable" or beyond the class members' control; and
life. Beliefs about these matters could not define the attributes (4) The political power of the subject class.
of personhood were they formed under compulsion of the State.
These factors, it must be emphasized, are not constitutive
THIRD. A classification based on gender or sexual orientation is essential elements of a suspect or quasi-suspect class, as to
a quasi-suspect classification, as to trigger a heightened level of individually demand a certain weight. The U.S. Supreme Court
review. has applied the four factors in a flexible manner; it has neither
required, nor even discussed, every factor in every
The ponencia of Mr. Justice del Castillo refused to characterize case. Indeed, no single talisman can define those groups likely
homosexuals and bisexuals as a class in themselves for to be the target of classifications offensive to the equal
purposes of the equal protection clause. Accordingly, it struck protection clause and therefore warranting heightened or strict
down the assailed Resolutions using the most liberal basis of scrutiny; experience, not abstract logic, must be the primary
judicial scrutiny, the rational basis test, according to which guide.
government need only show that the challenged classification is
rationally related to serving a legitimate state interest.
Guided by this framework, and considering further that orientation is not the type of human trait that allows courts to
classifications based on sex or gender – albeit on a relax their standard of review because the barrier is temporary
male/female, man/woman basis – have been previously held to or susceptible to self-help.
trigger heightened scrutiny, I respectfully submit that
classification on the basis of sexual orientation (i.e., The final factor that bears consideration is whether the group is
homosexuality and/or bisexuality) is a quasi-suspect "a minority or politically powerless." However, the political
classification that prompts intermediate review. powerlessness factor of the level-of-scrutiny inquiry does not
require a showing of absolute political powerlessness. Rather,
The first consideration is whether homosexuals have suffered a the touchstone of the analysis should be "whether the group
history of purposeful unequal treatment because of their sexual lacks sufficient political strength to bring a prompt end to the
orientation. One cannot, in good faith, dispute that gay and prejudice and discrimination through traditional political means."
lesbian persons historically have been, and continue to be, the
target of purposeful and pernicious discrimination due solely to Applying this standard, it would not be difficult to conclude that
their sexual orientation. History of discrimination suggests that gay persons are entitled to heightened constitutional protection
any legislative burden placed on lesbian and gay people as a despite some recent political progress. The discrimination that
class is "more likely than others to reflect deep-seated prejudice they have suffered has been so pervasive and severe – even
rather than legislative rationality in pursuit of some legitimate though their sexual orientation has no bearing at all on their
objective." ability to contribute to or perform in society – that it is highly
unlikely that legislative enactments alone will suffice to eliminate
A second relevant consideration is whether the character-in- that discrimination. Furthermore, insofar as the LGBT
issue is related to the person’s ability to contribute to community plays a role in the political process, it is apparent
society. Heightened scrutiny is applied when the classification that their numbers reflect their status as a small and insular
bears no relationship to this ability; the existence of this factor minority.
indicates the classification is likely based on irrelevant
stereotypes and prejudice. Insofar as sexual orientation is It is therefore respectfully submitted that any state action
concerned, it is gainful to repair to Kerrigan v. Commissioner of singling lesbians, gays, bisexuals and trans-genders out for
Public Health, homosexual orientation is no more relevant to a disparate treatment is subject to heightened judicial scrutiny to
person's ability to perform and contribute to society than is ensure that it is not the product of historical prejudice and
heterosexual orientation. stereotyping.

A third factor that courts have considered in determining In this case, the assailed Resolutions of the COMELEC
whether the members of a class are entitled to heightened unmistakably fail the intermediate level of review. Regrettably,
protection for equal protection purposes is whether the attribute they betray no more than bigotry and intolerance; they raise the
or characteristic that distinguishes them is immutable or inevitable inference that the disadvantage imposed is born of
otherwise beyond their control. Of course, the characteristic that animosity toward the class of persons affected (that is, lesbian,
distinguishes gay persons from others and qualifies them for gay, bisexual and trans-gendered individuals). In our
recognition as a distinct and discrete group is the characteristic constitutional system, status-based classification undertaken for
that historically has resulted in their social and legal ostracism, its own sake cannot survive.
namely, their attraction to persons of the same sex. Sexual
FOURTH. It has been suggested that the LGBT community down to ascertaining whether the party seeking accreditation
cannot participate in the party-list system because it is not a belongs to the "marginalized and underrepresented."
"marginalized and underrepresented sector" enumerated either
in the Constitution or Republic Act No. (RA) 7941. However, this Unfortunately, Congress did not provide a definition of the term
position is belied by our ruling in Ang Bagong Bayani-OFW "marginalized and underrepresented." Congress crafted that
Labor Party v. COMELEC, where we clearly held that the term—marginalized and underrepresented—from its reading of
enumeration of marginalized and underrepresented sectors in the concrete examples that the Constitution itself gives of
RA 7941 is not exclusive. groupings that are entitled to accreditation. These examples are
the labor, the peasant, the urban poor, the indigenous cultural
I likewise see no logical or factual obstacle to classifying the minorities, the women, and the youth sectors. Fortunately, quite
members of the LGBT community as marginalized and often ideas are best described by examples of what they are,
underrepresented, considering their long history (and indeed, which was what those who drafted the 1987 Constitution did,
ongoing narrative) of persecution, discrimination, and pathos. In rather than by an abstract description of them.
my humble view, marginalization for purposes of party-list
representation encompasses social marginalization as well. To If one were to analyze these Constitutional and statutory
hold otherwise is tantamount to trivializing socially marginalized examples of qualified parties, it should be evident that they
groups as "mere passive recipients of the State’s benevolence" represent the working class (labor, peasant, fisherfolk,
and denying them the right to "participate directly [in the overseas workers), the service class (professionals),
mainstream of representative democracy] in the enactment of the economically deprived (urban poor), the social
laws designed to benefit them." The party-list system could not outcasts (indigenous cultural minorities),
have been conceptualized to perpetuate this injustice. the vulnerable (women, youth) and the work impaired (elderly,
handicapped, veterans). This analysis provides some
o Separate Opinion of J. Abad understanding of who, in the eyes of Congress, are
marginalized and underrepresented.

In the case of Ang Bagong Bayani the Court said that the list in The group should be characterized by a shared advocacy for
R.A. 7941 is not exclusive. Thus, while the party-list system is genuine issues affecting basic human rights as these apply to
not meant for all sectors of society, it was envisioned as a social their groups. This is in keeping with the statutory objective of
justice tool for the marginalized and underrepresented in sharing with them seats in the House of Representatives so
general. they can take part in enacting beneficial legislation. Both the
Constitution and R.A. 7941 merely provide by examples a
The Congress provided in Section 2 of R.A. 7941 a broad sense of what the qualified organizations should look like. As
standard for screening and identifying those who may qualify for the Court acknowledged in Ang Bagong Bayani, these
the party-list system, which speaks of "marginalized and examples are not exclusive.
underrepresented sectoral parties or organizations lack well
defined political constituencies who could contribute to the To qualify, a party applying for accreditation must represent a
formulation and enactment of appropriate legislation." But, as narrow rather than a specific definition of the class of people
the Court said in Ang Bagong Bayani, the whole thing boils they seek to represent. For example, the Constitution uses the
term "labor," a narrower definition than the broad and more
abstract term, "working class," without slipping down to the Section 5 of R.A. 7941 provides that parties interested in taking
more specific and concrete definition like "carpenters," "security part in the party-list system must state if they are to be
guards," "microchips factory workers," "barbers," "tricycle considered as national, regional, or sectoral parties. Taken
drivers," and similar sub-groupings in the "labor" group. See the alongside with the territorial character of the sample sectors
other illustrations below. provided by the Constitution and R.A. 7941, indicates that every
Broad *Narrow Specifically Defined Groups sectoral party-list applicant must have an inherently regional
Definition Definition presence (indigenous cultural minorities) or a national
presence (all the rest). The people they represent are not
Working Labor Carpenters, security guards, bound up by the territorial borders of provinces, cities, or
Class microchip municipalities. A sectoral group representing the sugar
factory workers, barbers, tricycle plantation workers of Negros Occidental, for example, will not
drivers qualify because it does not represent the inherently national
character of the labor sector.
Economically Urban Informal settlers, the jobless,
Deprived Poor persons displaced by domestic Court held in Ang Bagong Bayani, it is not enough for a party to
wars claim that it represents the marginalized and underrepresented.
That is easy to do. The party must factually and truly represent
The Women Working women, battered women, the marginalized and underrepresented. It must present to the
Vulnerable victims of slavery COMELEC clear and convincing evidence of its history,
authenticity, advocacy, and magnitude of presence. The
Work Handi- Deaf and dumb, the blind, people COMELEC must reject those who put up building props
Impaired Capped on wheelchairs overnight as in the movies to create an illusion of sectoral
presence so they can get through the door of Congress without
running for a seat in a regular legislative district.
*The definition that the Constitution and R.A. 7941 use by
their examples.
In sum, to qualify for accreditation:
One, the applying party must show that it represents the
Obviously, the level of representation desired by both the
"marginalized and underrepresented," exemplified by the
Constitution and R.A. 7941 for the party-list system is the
working class, the service class, the economically
second, the narrow definition of the sector that the law regards
deprived, the social outcasts, the vulnerable, the work
as "marginalized and underrepresented." The implication of this
impaired, or some such similar class of persons.
is that, if any of the sub-groupings (the carpenters, the security
Two, the applying party should be characterized by a
guards, the microchips factory workers, the barbers, the tricycle
shared advocacy for genuine issues affecting basic
drivers in the example) within the sector desires to apply for
human rights as these apply to the sector it represents.
accreditation as a party-list group, it must compete with other
Three, the applying party must share the cause of their
sub-groups for the seat allotted to the "labor sector" in the
sector, narrowly defined as shown above. If such party is
House of Representatives. This is the apparent intent of the
a sub-group within that sector, it must compete with other
Constitution and the law.
sub-groups for the seat allocated to their sector.
 Four, the members of the party seeking accreditation allegedly injured by the supposed "prohibition against the right
must have an inherent regional or national presence. to marry the same-sex," which prevents his plans to settle down
And five, except for matters the COMELEC can take in the Philippines. Falcis justifies the direct recourse to the
judicial notice of, the party applying for accreditation must Supreme Court by citing, in addition to the alleged
prove its claims by clear and convincing evidence. transcendental importance of the issues he raised, the
supposed lack of need for trial concerning any factual issues.
In this case, Ang Ladlad represents men and women who He also insists that the constitutionality of Articles 1 and 2 of the
identify themselves as lesbians, gays, bisexuals, or trans- Family Code were the very lis mota of his case.
gendered persons (LGBTs). The COMELEC denied Ang
Ladlad’s petition on religious and moral grounds is proof of this According to Falcis, a facial challenge on Articles 1 and
discrimination. 2 is permitted as these two (2) provisions regulate fundamental
rights such as "the right to due process and equal protection,
Ang Ladlad has amply proved that it meets the requirements for right to decisional and marital privacy, and the right to found a
sectoral party accreditation. Their members are in the family in accordance with religious convictions." Because there
vulnerable class like the women and the youth. Ang Ladlad is allegedly no necessity to limit marriage as only between a
represents a narrow definition of its class (LGBTs) rather than a man and a woman, Articles 1 and 2 of the Family Code are
concrete and specific definition of a sub-group within the class supposedly unconstitutional for depriving Falcis of his right to
(group of gay beauticians, for example). The people that Ang liberty without substantive due process of law.
Ladlad seeks to represent have a national presence.
Finally, Falcis claims that Articles 1 and 2 of the Family
JESUS NICARDO M. FALCIS III v. CIVIL REGISTRAR Code deny the existence of "individuals belonging to religious
GENERAL denominations that believe in same-sex marriage" and that they
G.R. No. 217910, 03 September 2019, EN BANC (Leonen, J.) have a "right to found a family in accordance with their religious
convictions." He claims that the religious weddings conducted
FACTS: Jesus Nicardo M. Falcis III (Falcis) filed pro se (when by these denominations have been denied civil recognition
litigant proceeds without legal counsel) before the Supreme "unlike the religious convictions of Catholics and Muslims."
Court a Petition for Certiorari and Prohibition under Rule 65 of
the 1997 Rules of Civil Procedure, seeking to declare Articles 1 The Supreme Court ordered the Civil Registrar General
and 2 of the Family Code as unconstitutional and, as a to comment on the Petition. The Civil Registrar General,
consequence, nullify Articles 46 (4) and 55 (6) of the Family through the Office of the Solicitor General, filed its Comment,
Code. praying for the dismissal of the Petition since it was not in the
nature of a class suit, but was instead personal only to Falcis.
Falcis argues that his Petition complied with the Because of this, it claims that Falcis failed to show injury-in-fact
requisites of judicial review. As to standing, he claims that his and an actual case or controversy, but was rather seeking an
standing consisted in his personal stake in the outcome of the advisory opinion that the Court cannot issue.
case, as he "is an open and self-identified homosexual" who
alleges that the Family Code has a "normative impact" on the LGBTS Christian Church, Inc. (LGBTS Church),
status of same-sex relationships in the country. He was also Reverend Crescencio "Ceejay" Agbayani, Jr., Marlon Felipe,
and Maria Arlyn "Sugar" Ibañez—collectively, Falcis-intervenors the earliest possible opportunity, thus ripe for adjudication; and
— whose counsel was Falcis himself, filed a Motion for Leave to (4) The matter of constitutionality must be the very lis mota of
Intervene and Admit Attached Petition-in-Intervention, adopting the case, or that constitutionality must be essential to the
by reference the arguments raised by Falcis in his Petition. disposition of the case.
Subsequently, they filed their Petition-in-Intervention, which is a
Petition for Certiorari under Rule 65 of the Rules of Court, In Pimentel, Jr. v. Aguirre, the Court fixed the point at
seeking the same reliefs as those in Falcis' Petition. which a legal issue matures into an actual case or controversy
— at the pre-occurrence of an "overt act." By the mere
The Court granted the Motion for Leave to Intervene and enactment of the questioned law or the approval of the
Admit Petition-in-Intervention. Thereafter, preliminary challenged action, the dispute is said to have ripened into a
conference and oral arguments were conducted. [During the judicial controversy even without any other overt act. In addition,
preliminary conference, Falcis was ordered to show cause why the Court stated in Province of North Cotabato v. Government
he should not be cited in direct contempt considering that Falcis of the Republic of the Philippines Peace Panel on Ancestral
was attired with a casual jacket, cropped jeans and loafers Domain, "that the law or act in question is not yet effective does
without socks- for his failure to observe the required decorum not negate ripeness." This, however, is qualified by the
during the preliminary conference which is a formal session of requirement that there must be sufficient facts to enable the
the Court. He was found guilty of direct contempt of court Court to intelligently adjudicate the issues.
considering that as an officer of the court, he is duty bound to
maintain towards this Court a respectful attitude essential to the Here, the Petition cannot be entertained as a facial
proper administration of justice.] Memoranda were then filed in challenge to Articles 1, 2, 46 (4), and 55 (6) of the Family Code.
compliance with the Court’s Resolution. A facial challenge is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its
ISSUES AND RULING actual operation to the parties, but also on the assumption or
prediction that its very existence may cause others not before
(1) Does the mere passage of the Family Code create an actual the court to refrain from constitutionally protected speech or
case or controversy reviewable by the Court? activities. To be entertained by the Court, a facial challenge
requires a showing of curtailment of the right to freedom of
NO. The Petition before the Court does not present an expression. In other words, it must be based on actual facts,
actual case over which it may properly exercise its power of sufficiently for a proper joinder of issues to be resolved. So
judicial review. when faced with speculations — situations that have not yet
fully ripened into clear breaches of legally demandable rights or
Fundamentally, for the Court to exercise the immense obligations — the Court shall refrain from passing upon the
power that enables it to undo the actions of the other case.
government branches, the following requisites must be satisfied:
(1) There must be an actual case or controversy involving legal The need to demonstrate an actual case or controversy
rights that are capable of judicial determination; (2) The parties is even more compelling in cases concerning minority groups. In
raising the issue must have standing or locus stand to raise the Ang Ladlad LGBT Party v. Commission on Elections, this Court
constitutional issue; (3) The constitutionality must be raised at acknowledged that the LGBTQI+ community has historically
"borne the brunt of societal disapproval" due to religious beliefs, respondent. Without an exercise of discretion, there could not
convictions about the preservation of marriage, family, and have been abuse of discretion, let alone one that could
procreation, even dislike or distrust of homosexuals themselves conceivably be characterized as "grave."
and their perceived lifestyle. Thus, LGBT discrimination has a
long history and serves as a remnant of the colonial era when Despite seeking access to the benefits of marriage,
the most powerful nations used laws as mechanisms of control Falcis miserably fails to articulate what those benefits are, in
over morality and standards of behavior. Any entity that both his filed pleadings and his submissions during oral
attempts to speak for and on behalf of a diverse community arguments. More than being the "foundation of the family," the
must be able to adequately thread the needle in representation state of marriage grants numerous specific rights and privileges
of them, assisting the Court's understanding with sufficient facts that affect most, if not all, aspects of marital and family
that would enable it to empower, and not further exclude, an relationships, such as those granted by the Family Code and
already marginalized community. the Civil Code. Marriage has consequences in criminal law as
well. The State's interest in marriage and married persons
In this case, Falcis has no actual facts that present a extends to taxation. Even the Labor Code and other labor laws
real conflict between the parties of this case. Falcis’ 29-page are influenced by the institution of marriage. Aside from
initiatory pleading neither cites nor annexes any credible influencing provisions in substantive law, the status of marriage
studies, statistics, affidavits, papers, or statements that would is also recognized in the Rules of Court and special laws, such
impress upon this Court the gravity of his purported cause. as the National Health Insurance Act of 2013, the Insurance
Even Falcis' choice of respondent exposes the lack of an actual Code, as amended by Republic Act No. 10607, and others. Yet,
case or controversy. He claims that he impleaded the Civil orienting same-sex relationships towards a state-sanctioned
Registrar General as respondent because "it is the marriage cannot be attuned solely to its advantages. This
instrumentality of the government that is tasked to enforce the approach usually ignores the burdens associated with marriage.
law in relation with marriage." Lest Falcis himself forget, what he As a legally-binding relationship that unites two (2) individuals,
asserts as ground for the allowance of his suit is the existence marriage becomes an "enabling constraint" that imposes certain
of grave abuse of discretion in the enactment of the Family duties on married couples and even limitations on their actions.
Code. Civil Registrar General was not involved in the In civil actions, spouses are generally joint parties in a case
formulation or enactment of the Family Code. It did not irrespective of who incurred the obligation. In criminal actions,
participate in limiting the definition of marriage to only opposite- the court may also cite in contempt the spouse of a drug
sex couples because that is the province and power of dependent who refuses to cooperate in the treatment and
Congress alone. rehabilitation of the drug dependent.

No factual antecedents existed prior to the filing of the Thus, the claim for a state-sanctioned marriage for same-
Petition apart from the passage of the Family Code. Falcis has sex couples should come with the concomitant willingness to
never applied for a marriage license. He has never even visited embrace these burdens, as well as to submit to the State
the premises of respondent's office, or of anyone acting under certain freedoms currently enjoyed outside the institution of
its authority. Falcis has never bothered to show that he himself marriage. Yet, Falcis has miserably failed to show proof that he
acted in any way that asked respondent to exercise any kind of has obtained even the slightest measure of consent from the
discretion. Indeed, no discretion was ever exercised by members of the community that he purports to represent, and
that LGBTQI+ persons are unqualifiedly willing to conform to the the first four (4) deliveries of the legitimate spouse with whom
State's present construct of marriage. he is cohabiting." Said litany of provisions are not even the
entirety of laws relating to marriage.
Limiting itself to four (4) specific provisions in the Family
Code, the Petition prays that the Court "declare Articles 1 and 2 Falcis would have the Court impliedly amend all such
of the Family Code as unconstitutional and, as a consequence, laws, through a mere declaration of unconstitutionality of only
nullify Articles 46 (4) and 55 (6) of the Family Code." However, two (2) articles in a single statute. The Court cannot do what
should the Court rule as the Petition asks, there will be far- Falcis wants without arrogating legislative power unto itself and
reaching consequences that extend beyond the plain text of the violating the principle of separation of powers. Consequently,
specified provisions. A significant number of provisions under the task of devising an arrangement where same-sex relations
current marriage arrangements pertain to benefits to or burdens will earn state recognition is better left to Congress in order that
on a specific sex (and are therefore dependent on what is it may thresh out the many issues that may arise. Allowing
assigned at birth based on the appearance of external same-sex marriage based on this Petition alone can delay other
genitalia). more inclusive and egalitarian arrangements that the State can
acknowledge.
As our current laws are confined to a heteronormative
standard, they do not recognize the existence and specificities (2) Does the self-identification of Jesus Nicardo M. Falcis III as
of other forms of intimacy. For instance, an incident of marriage a member of the LGBTQI+ community give him standing to
granted by the law to spouses, specifically to wives, is the challenge the Family Code?
option to adopt their husbands' surname under the Civil Code.
In case of artificial insemination of the wife with the sperm of the NO. Falcis has no legal standing to file his Petition.
husband or of a donor, the Family Code specifies that, to
establish paternity and filiation, the husband must consent to Legal standing is a party's "personal and substantial
the procedure in a written instrument prior to the child's birth. interest in the case such that he has sustained, or will sustain,
The Family Code also contains provisions that favor the direct injury as a result of its enforcement." Interest in the case
husband over the wife on certain matters, including property "means a material interest, an interest in issue affected by the
relations between spouses. For one, the administration over the decree, as distinguished from mere interest in the question
community property belongs to the spouses jointly, but in case involved, or a mere incidental interest." If the mere passage of a
of disagreement, the husband's decision prevails. Our penal law does not create an actual case or controversy, neither can it
laws likewise contain sex-specific provisions. While a woman be a source of direct injury to establish legal standing.
who commits adultery shall be punished with imprisonment, a
man who commits adultery shall only suffer the penalty of Here, Falcis asserts that he, being an "open and self-
destierro. Further, a husband who engages in sex with a woman identified homosexual," has standing to question Articles 1, 2,
who is not his wife does not incur criminal liability if the sexual 46 (4), and 55 (6) of the Family Code due to his "personal stake
activity was not performed under "scandalous circumstances." in the outcome of the case." Falcis’ supposed "personal stake in
In labor law, Paternity Leave Act of 1996 provides that "every the outcome of this case" is not the direct injury contemplated
married male employee in the private and public sectors shall by jurisprudence as that which would endow him with standing.
be entitled to a paternity leave of seven (7) days with full pay for Mere assertions of a "law's normative impact"; "impairment" of
his "ability to find and enter into long-term monogamous same- Here, while petitioners-intervenors have legal interest in
sex relationships"; as well as injury to his "plans to settle down the issues, their claims are more adequately decided in a
and have a companion for life in his beloved country"; or separate proceeding, seeking relief independently from the
influence over his "decision to stay or migrate to a more LGBT Petition. Even if the Petition-in-Intervention is not a sham foisted
friendly country" can neither be recognized by the Court as by Falcis upon the Court, it still does not satisfy the
sufficient interest nor can they constitute legally demandable requirements of justiciability. Petitioner-intervenors invoke "third-
rights that require judicial enforcement. party standing" as their basis for filing suit. But the requisites of
third-party standing are absent here. For a successful
During the oral arguments, Falcis asserted that the very invocation of third-party standing, three (3) requisites must
passage of the Family Code itself was the direct injury that he concur: (a) The litigant must have suffered an 'injury-in-fact,'
sustained. Falcis presents no proof at all of the immediate, thus giving him or her a "sufficiently concrete interest" in the
inextricable danger that the Family Code poses to him. His outcome of the issue in dispute; (b) The litigant must have a
fixation on how the Family Code is the definitive cause of his close relation to the third party; and (c) There must exist some
inability to find a partner is plainly non sequitur. Similarly, hindrance to the third party's ability to protect his or her own
anticipation of harm is not equivalent to direct injury. Falcis fails interests."
to show how the Family Code is the proximate cause of his
alleged deprivations. Regarding injury-in-fact, LGBTS Christian Church claims
that its ability to recruit, evangelize, and proselytize is impaired
It does not escape the Court's notice that the Family by the lack of state recognition of the same-sex marriage
Code was enacted in 1987. This Petition was filed only in 2015. ceremonies it conducts as part of its religion. But there is no
Falcis, as a member of the Philippine Bar, has been aware of legally demandable right for a sect or denomination's religious
the Family Code and its allegedly repugnant provisions, since at ceremonies to be given State imprimatur. Likewise, the Family
least his freshman year in law school. It is then extraordinary for Code has not been shown to be the proximate cause of
him to claim, first, that he has been continually injured by the petitioners-intervenors' alleged injury.
existence of the Family Code; and second, that he raised the
unconstitutionality of Articles 1 and 2 of the Family Code at the Falcis’ choice of remedy further emphasizes his
earliest possible opportunity. ignorance of basic legal procedure. Falcis' presentation of his
case makes it patently obvious that his proper remedy is not
(3) Does the Petition-in-Intervention cure the procedural defects Rule 65, but rather, a petition for declaratory relief under Rule
of the Petition? 63 of the 1997 Rules of Civil Procedure. The Court has been
categorical that, in certain instances, declaratory relief is proper
NO. The Petition-in-Intervention cannot cure the original should there be a question of the constitutionality of a statute,
Petition’s defects, and must also be dismissed. executive order or regulation, ordinance, or any other
governmental regulation. Here, considering that there is an
Intervention requires: (1) a movant's legal interest in the abysmal dearth of facts to sustain a finding of an actual case or
matter being litigated; (2) a showing that the intervention will not controversy and the existence of a direct injury to Falcis, a
delay the proceedings; and (3) a claim by the intervenor that is petition for declaratory relief resolved after full-blown trial in a
incapable of being properly decided in a separate proceeding. trial court would have been the more appropriate remedy.
 An equally compelling and independently sufficient basis seeking to "convert the Court into an Office of Ombudsman for
for dismissing this Petition is Falcis' violation of the doctrine of the ventilation of generalized grievances."
hierarchy of courts.
In undertaking judicial review, it decides in accordance
(4) Is the application of the doctrine of transcendental with the Fundamental Law issues that have particular relevance
importance warranted? and application to actual facts and circumstances, not imagined
or anticipated situations. Falcis does not assert that he has
NO. Diocese of Bacolod recognized transcendental been directly injured by the provisions of the Family Code. If
importance as an exception to the doctrine of hierarchy of ever he would be prevented from marrying, that is still in the
courts. In cases of transcendental importance, imminent and uncertain future, a contingency that may never happen.
clear threats to constitutional rights warrant a direct resort to the However, he tries to rectify this problem by making reference to
Court, but the decisive factor is not merely the presence of the petition-in-intervention filed by LGBTS Christian Church,
"special and important reasons," but the nature of the question Inc., et al. who allegedly were prevented from having a same-
presented by the parties. Still, it does not follow that the Court sex marriage ceremony when the same-sex couple was not
should proceed to exercise its power of judicial review just granted a marriage license. In this connection, intervention
because a case is attended with purely legal issues. Even if the should never be allowed to be utilized as a means to correct a
Court were to go out of its way in relaxing rules and proceed to fatal omission in the principal action. Intervention is only
resolve the substantive issues, it would ultimately be unable to ancillary to the main case and it should not be conveniently
do so, as Falcis himself failed to present even an iota of resorted to as a means to save the day for an intrinsically
evidence substantiating his case. flawed petition.

The Court sympathizes with Falcis with his obvious Congress is the democratic institution which initially may
longing to find a partner. Yet, the time for a definitive judicial fiat tackle issues and policies about interpersonal relations and
may not yet be here. This is not the case that presents the institutions affecting its citizens, including the propriety or
clearest actual factual backdrop to make the precise reasoned desirability of same-sex marriage. Only in the presence of a
judgment our Constitution requires. clear violation of the tenets of the Fundamental Law may the
courts proceed to declare that an unmistakable constitutional
SEPARATE OPINION OF J. PERALTA right has been impaired or otherwise trampled upon by the
government. In the absence of such, the courts should stay their
It is to be pointed out that the role of the Court in hand. In this particular instance, I do not see any such violation
constitutional adjudication is to determine the rights of the that would justify the Court getting into this social and political
people under the Constitution, an undertaking that demands, debate on same-sex marriages.
among others, the presence of an actual case or controversy
ripe for judicial pronouncement, and that the case must be The right to marry is fundamental as a matter of history
raised by one who has standing to do so. Here, the Falcis fails and tradition, but rights come not from ancient sources alone.
to satisfy both requisites. He is practically beseeching the Court They rise, too, from a better-informed understanding of how
to come up with an advisory opinion about the presence of constitutional imperatives define a liberty that remains urgent in
constitutionally protected right to same-sex marriages - in effect our own era. Under the Constitution, same-sex couples seek in
marriage the same legal treatment as opposite-sex couples, his residence. It is clear that Falcis's cause of action does not
and it would disparage their choices and diminish their exist.
personhood to deny them this right.
Falcis has no legal standing to file the suit. Standing or
In fine, the claim of alleged unconstitutionality of the locus standi is defined as the right of appearance in a court of
Family Code provisions defining marriage as a union between a justice on a given question. In this case, Falcis is not in a long-
man and a woman has no leg to stand on. It is not for this Court term monogamous same-sex relationship. He has not
to write into the law purported rights when they are not attempted to marry nor was prevented by the State from doing
expressly or by clear implication deemed available under the so. This makes his lack of direct interest in the enforcement of
Fundamental Law. Same-sex marriage is a policy matter better the assailed provisions of the Family Code patent. Neither does
left to the deliberations of the elected officials of the country. Falcis qualify as a taxpayer as he has not alleged illegal
disbursement of public funds or that a tax measure is involved
CONCURRING OPINION OF J. JARDELEZA in this case. He does not assail the validity of an election law, so
he also does not have standing as a voter. Finally, he is not a
I vote to DISMISS the petition, not the idea of marriage legislator nor an association and therefore cannot claim
equality. standing as such.

Falcis is not the proper party to assert a liberty interest in The petition-in-intervention cannot cure the defects of the
same-sex marriage. He did not suffer any injury as a result of petition. An intervention is merely ancillary and supplemental to
the enforcement of Articles 1 and 2 the Family Code. The an existing litigation. It is not an independent action.
subsequent intervention by Agbayani, Felipe, LGTBS Church, Jurisprudence instructs that a petition-in-intervention cannot
and Ibañez did not cure this defect in the petition. create an actual controversy for the main petition. The cause of
action must be made out by the allegations of the petition
The petition presents no actual case or controversy. without the aid of any other pleading. Neither can the
There is an actual case or controversy when the case is transcendental importance doctrine save the petition and the
appropriate or ripe for determination, not conjectural or petition-in-intervention. This doctrine dispenses only with the
anticipatory, lest the decision of the court would amount to an requirement of locus standi. It does not override the
advisory opinion. Falcis alleged that "the prohibition against the requirements of actual and justiciable controversy, a condition
right to marry the same-sex injures [his] plans to settle down sine qua non for the exercise of judicial power
and have a companion for life in his beloved country." Yet as of
the filing of the petition, Falcis has no partner. He lamented that Petitioner alleges that even if only the rational basis test
his "ability to find and enter into a long-term monogamous is applied, the assailed provisions will fail since there is no
same-sex relationship is impaired because of the absence of a substantial distinction between opposite-sex couples and same-
legal incentive for gay individuals to seek such relationship." sex couples respecting marriage. Both can perform the
Significantly, however, even if he has a partner, Falcis admitted essential marital obligations under the Family Code. These are:
in open court that it is not automatic that his partner might want (a) the obligation to live together, observe mutual love, respect,
to marry him. Thus, Falcis cannot, did not or even attempted to, and fidelity, and render mutual help and support; (b) fix the
file an application for marriage license before the civil registry of family domicile; and (c) support the family and pay the
expenses for such support and other conjugal obligations. To The case before Us presents a cautionary tale of how not
reiterate, this argument still requires the presentation of to prove a fundamental right in the context of public interest
documentary and testimonial evidence. It cannot be assumed litigation. Nevertheless, the pursuit of the idea of marriage
especially since there are conflicting claims on these assertions. equality need not end here. Rather, zealous fealty to the
Constitution's strictures on case and controversy and the
With respect to petitioner's claim that same-sex couples hierarchy of courts should give the idea of marriage equality a
can raise children as well as opposite-sex couples intervenors- sporting chance to be, in time, vigorously and properly
oppositors expressed a strong contrary view and argue that presented to the Court.
children raised by heterosexual couples fare better than those
who are not. The reception of scientific and expert opinion is
probably necessary to assist the Court in resolving this issue.

Relevant to the Court's consideration of the religious

argument is the free exercise clause of the 1987 Constitution.
This clause guarantees the liberty of religious conscience and
prohibits any degree of compulsion or burden, whether direct or
indirect, in the practice of one's religion. In Estrada v. Escritor,
the Court established benevolent neutrality-accommodation as
the regime under which a claim of violation of religious freedom
should be considered. The following factual questions should be
resolved through the presentation of evidence: (1) whether the
claimant's right to religious freedom has been burdened by the
government regulation; (2) whether the claimant is sincere in
his/her belief, which in turn constitutes a central tenet of their
proclaimed religion; and (3) whether the State has compelling
interest to override the claimant's religious belief and practice.
Applying the foregoing analysis to this case, Falcis must first
show how the assailed provisions of the Family Code created a
burden on their right to the free exercise of religion; while on the
part of the LGBTS Church, it must prove, foremost, that it is a
religion and that same-sex marriage is a central tenet of its faith.
Second, petitioner and the petitioners-intervenors must
demonstrate that they hold a sincere belief in this tenet. Third,
the CRG must establish that the state has a compelling interest
to limit marriage to opposite-sex couples. As was shown earlier,
these are factual matters requiring the presentation of evidence.