SUMMARY

On January 11, 2001, the Philippine Commission on Human Rights -- a governmental monitoring body -- dismissed a complaint by the non-governmental organization Gay Movement for Human Rights in the Philippines (GAHUM-Philippines). The complaint concerned a transgender woman who was barred on two separate occasions from entering a dance club in Cebu City for wearing women's clothes and sandals.

The decision came only days after a landmark court decision in Manila authorized a change in the official, legal registration of a transgender person's sex to reflect her chosen, rather than originally attributed, gender.

The International Gay and Lesbian Human Rights Commission (IGLHRC) joins GAHUM-Philippines in calling for urgent letters of protest demanding that the Commission on Human Rights reconsider its decision; follow the lead of local courts as well as international standards; and affirm the equality and rights of transgender persons.

ACTION

Please send letters of protest to the following address. A sample letter follows.

Attorney Alejandro P. Alonzo
Regional Director
Commission on Human Rights-Region VII

Rosal Building, Rosal Street, Capital Site
Cebu City, Cebu 6000
Philippines
Fax: +63-32-254-6921

Please send a copy to:

Hon. Aurora Navarette-Reciña
Commissioner
Commission on Human Rights

SAAC Building, Commonweath Avenue
U. P. Diliman, Quezon City
Philippines
Fax: +63-2-928-5655

Letter-writers are kindly asked to send their names and addresses to the Gay Movement for Human Rights in the Philippines at: gahum@skyinet.net

BACKGROUND

In October 1999, employees at Club Royale, a dance club in Cebu City, barred Jonathan Agudaña, a male-to-female transvestite, from entering the premises because she was wearing a tight-fitting sleeveless blouse and pants. She borrowed a friend's sweatshirt to gain entry, but was forcibly apprehended and removed by two guards upon removing it on the dance floor, on the grounds that she had failed to wear "proper attire."

Agudaña returned to Club Royale on a subsequent occasion, in July 2000. Again, she was denied entry -- this time for wearing a tight-fitting blouse and women's sandals. When another person wearing identical shoes was allowed to enter the club a few minutes later, the guard justified his decision by saying, "because she is a woman."

The Gay Movement for Human Rights in the Philippines (GAHUM-Philippines) learned about these incidents in the context of a training on gay rights. GAHUM presented a complaint to the Commission on Human Rights (CHR) on October 25, 2000. The complaint was the first ever presented to this body regarding the rights of lesbian, gay, bisexual, or transgender (LGBT) persons. It called on the Commission to investigate the Agudaña case and take appropriate remedial measures.

On January 11, 2001, the Commission on Human Rights announced it was dismissing the case. The case resolution stated:

"In the instant case nobody can begrudge the complainant's sexual preference or tendencies, nor his choice of clothes to wear. He has all the rights to practice them; providing, in doing so, it may not violate existing laws, rules, or regulations. In the privacy of his room, he may, alone or together with others of similar persuasions, wear even the most outrageous attire. But he cannot do it in a place like Club Royale, which caters to clients belonging to the middle and upper class markets. It is not farfetched that the sensibilities of other patrons may be offended by a male customer wearing a woman's outfit. Club Royale, engaged in a legitimate business endeavor, has all the prerogative to adopt rules and regulations to ensure the protection and satisfaction of customers. Adoption of a dress code falls under this prerogative."

Commenting on this decision on July 29, the Regional Director for Cebu of the Commission on Human Rights, Attorney Alejandro Alonzo, was quoted in newspapers as saying: "They [gays] should wear proper attire, and I don't think [Club Royale's policy is] a violation because customers should follow the house rules. There should be appropriate attire because they are governed by dress code." He added: "If you are a man, you should wear the apparel of a man or vice versa. Unless the court will [meaning: grant] the change of status to a particular gay just like what happened in Metro Manila" (emphases added).

Alonzo alluded to a case decided just days before the dismissal of GAHUM's complaint. A court in Metro Manila made history by granting a "Petition for Change of Status" to a male-to-female transsexual known as "Esperanza", authorizing that her stated sex be changed accordingly in the records of the Civil Registrar. This decision has generated widespread debate about the legal status of transgender people in the media throughout the Philippines.

GAHUM-Philippines hailed this ruling as a progressive and precedent-setting milestone. According to apublic statement by the organization: "Full respect of the basic rights of lesbians, gays, bisexuals, and transgenders recognizes the right to full and harmonious development of his/her personality, and the right to grow in a gender- and bias-free environment in an atmosphere of happiness, love, and compassion. Above all are the rights to self-determination and freedom to pursue political, economic, social, and cultural beliefs and practices without being unduly prejudiced and discriminated."

Philippine authorities thus find themselves in a mixed and paradoxical situation as they face questions of gender identity. The Manila court ruling goes far toward recognizing the right of transgender people to have their experienced gender publicly acknowledged by the law. Without such acknowledgement -- denied them in numerous countries -- transgender people exist in a shadow world of half-citizenship at best; they can be and are denied services, care, housing, employment, and other necessities because their papers do not match their persons. Correcting the discrepancy between observable gender identity and the documentary record of it is essential to the principle codified in Article 6 of the Universal Declaration of Human Rights: that "Everyone has the right to recognition everywhere as a person before the law."

At the same time, the law is not a discrete and detachable sphere of society, in which dignity can be flouted or respect denied in ignorance of, or without effect upon, conditions in the rest of the social realm. The law sets the rules for, but also is a representation of, the whole of society. Flagrant inequality or persistent disrespect in the wider world, if left unnoticed by the law, will eventually undo the law's assertions of fairness, however often reiterated, however seriously meant.

The expulsion of Jonathan Agudaña from Club Royale thus has ramifications which echo far beyond the door of the discotheque. It reflects an environment of discrimination in which the right of transgender people to move freely, as equals in public space, is at steady risk. It reflects an atmosphere of repression in which the free expression of a gender identity can be met by rejection and exclusion. It is the law's responsibility, and that of national human rights institutions, to address such discrimination and end such oppression. That responsibility applies no less in this case than in other cases of gender-based abuse -- such as the right of women not to conform to dress codes, or to be protected against violence in the public or private spheres. The Philippine Commission on Human Rights has failed in this task in this crucial instance.

The Philippine Commission on Human Rights was established in 1987 by an order of then President Corazon Aquino. It defines itself as not only an instrument of remedy and redress, but an independent institution to "promote the protection, respect for and enhancement of people's human rights." It claims to follow the "Principles Relating to the Status and Functioning of National Institutions for Protection and Promotion of Human Rights" adopted by the UN General Assembly in 1993 (also known as the "Paris Principles.")

Those principles commit national human rights institutions to "publicize human rights and efforts to combat all forms of discrimination . . . by increasing public awareness." The comments of Director Alonzo have exactly the opposite effect. They endorse and encourage discrimination. Indeed, the point the way to a future further level of violation: to the "arbitrary interference with privacy" prohibited by Article 12 of the UDHR. Alonzo suggests that transgender people -- that is, only post-operative transgender people -- might be allowed in public places if their identity papers are in fact changed in accordance with the new Manila court ruling. But this invites new surveillance and scrutiny of visible transgender people. It means that those with nonconforming gender identities could be singled out for intrusive and discriminatory identity checks at any corner, at every door. It transforms the promise of equality in the Manila ruling into a new technology of injustice.

The rights to free expression, to freedom from discrimination, and to respect for one's privacy are all components of human dignity and freedom. Dignity and freedom are the inalienable possessions of transgender people as of all other persons. The Philippine Human Rights Commission only discredits itself in disregarding them.

ADDITIONAL INFORMATION

The Paris Principles on National Human Rights Institutions can be found at http://www.unhchr.ch/html/menu6/2/fs19.htm#annex.

The Constitution of the Philippines can be found at http://www.chanrobles.com/philsupremelaw.htm.