SILVERIO vs.

REPUBLIC

FACTS: On November 26, 2002, Rommel Jacinto Dantes Silverio filed a petition for change of his
first name from “Rommel” to “Mely” and sex from “male” to “female” in his birth certificate in
the RTC of Manila Br. 8. He alleged that he was born in Manila on April 4, 1962 to Filipino
parents. He is a male transexual (anatomically male but feels, thinks and acts as a female) and
that he has always identified as a female. He transitioned witht help of US doctors and on
January 27, 2001, he underwent sex reassignment surgery in Bangkok. He was thereafter
examined by Dr. Marcelino Reysio-Cruz and issued a certificate attesting the said surgery. From
then on, the petitioner lived as a female. He then got engaged to be married hence his petition
for change of name and sex.

On June 4, 2003 RTC granted the petition on the ground of justice and equity; purpose of
making his birth records compatible with his present sex; no harm, injury or prejudice will be
caused to anybody or community; and no evidence to deny the petition. CA reversed the
decision on the ground of lack of basis in law for said decision.

ISSUE: Whether or not a person may petition for a change of name and sex appearing in the
birth certificate to reflect the result of a sex reassignment surgery?

HELD: No. The Supreme Court agrees with the decision of the CA. There is no law providing for
such change. A change of name is a privilege, not a right. Petitions for change of name are
controlled by statutes. In this connection, Art. 376 of the Civil Code provides that “No person
can change his name and surname without judicial authority.”

RA 9048 now governs the change of first name. 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.
It likewise lays down the corresponding venue, form and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily administrative in nature, not judicial.

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. 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. In addition, he must show that he will be prejudiced by the use of
his true and official name. 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.

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.

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: x x x      x x x      x x x (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.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even
those that occur after birth. 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.” 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.

“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. 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.

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.

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed
at the time of birth. 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, is immutable.

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” or “the distinction between male and
female.” Female is “the sex that produces ova or bears young” and male is “the sex that has
organs to produce spermatozoa for fertilizing ova.” 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.” 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.

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. One of its essential requisites is the legal capacity of the contracting parties who must
be a male and a female. 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, certain felonies under the Revised
Penal Code and the presumption of survivorship in case of calamities under Rule 131 of the
Rules of Court, 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.