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Those advocating for the passage of the law on prohibiting discrimination on the basis of Sexual Orientation and Gender Identity or Expression (SOGIE) may have the best of intentions but have their facts wrong and objectives muddled. Let us first understand where they are coming from. Much of the information in this article is taken from the Position Paper of Pro-Life Philippine Foundation, Inc. on this topic. By sexual orientation they mean the direction of emotional, sexual attraction, or conduct towards people of the same sex (homosexual orientation) or towards people of both sexes (bisexual orientation) or towards people of the opposite sex (heterosexual orientation) or to the absence of sexual attraction (asexual orientation). Gender expression for them means the way a person communicates gender identity to others through behavior, clothing, hairstyles, communication or speech pattern, or body characteristics. Finally, gender identify for them refers to the personal sense of identity as characterized, among others, by manner of clothing, inclinations, and behavior in relation to masculine or feminine conventions. A person may have a male or female identity with the physiological characteristics of the opposite sex, in which case this person is considered transgender.
The first error is in legally classifying persons or human beings according to sexual orientation and gender identity. According to Constitutional Law, classification is defined as the grouping of persons or things similar to each other in certain particular characteristics and different from all others in these very same particulars. The distinction has to be substantial as opposed to superficial difference. That is why it is reasonable to classify men from women (difference in reproductive roles), minors from adults (difference in age of consent), and citizens from aliens (difference in nationality). There should be relative permanency in the characteristics of the distinction being made. In contrast, one cannot legally classify persons according to the color of their skin, the way they dress, the Philippine regions they come from or the professions they practice. These differences can change relatively in time. There is no permanency in the distinctions being established.
Sexual orientation involves a superficial difference since the attraction of a person to the same sex can vary in degrees, and there are recorded cases of persons with diminished same-sex attractions, if not totally re-oriented into heterosexuals. The reality is that there are a number of “ex-gay ministries” available to persons struggling with same-sex attractions, such as the local Courage and Bagong Pag-Asa groups, who assist individuals in understanding the struggle against their same-sex attraction and living a chaste life (not to engage in same-sex acts). True, there may be proven cases of persons who are homosexual for life but the existence of others who are able to overcome their same-sex feelings demonstrates that it is wrong to classify people according to sexual orientation, which at least for some people is not a permanent condition.
Likewise, it has to be pointed out that gender identity is also a superficial difference. As defined above, it refers to a personal sense of identify (making it a subjective concept) based on manners of dressing inclinations and behavior in relation to masculine or feminine conventions. The indicators of gender identity, e.g. manners of clothing, inclinations and behavior, can change relatively in time. The subjectivity of the definition (personal) makes it difficult for it to be considered as a substantial distinction. In fact, the acronym LGBT (Lesbian, Gay, Bisexual and Transgender) is only the tip of the iceberg of gender identities. A longer list will include, in addition to the first four many more possible identities, such as transsexual, two-spirit, queer, questioning, intense, asexual and ally. Interestingly, the classification “questioning” highlights the tentativeness of the condition being described. The term refers either (a) to an individual who is unsure of and/or still exploring his or her gender identity and/or sexual reorientation or (b) to the process of exploration that such an individual is going through. It is often reserved for adolescents who are still trying to figure out their sexual orientation and their gender identity. The questioning phase is not allowed to persist for very long. There is a lot of pressure in schools for a young child to identify as transgender or identify as a sexual minority. For this reason, they might not be questioning for very long. Clearly, a law based on classifying persons according to sexual orientation or gender identify can lead to a great deal of confusion in its implementation.
The same confusion will apply to those who consider themselves “pansexual.” The pansexual is one who can be (or who claims to be capable of being) romantically or sexually attracted to people of any gender or regardless of their gender. These persons claim that when it comes to sexual attraction or choice, they are “gender-blind” (i. e. the gender and sex of their prospective partners are irrelevant or insignificant to them). How will these people be treated in the SOGIE bill? The multiplicity of sexual orientations and/or gender roles shows how ridiculous is it for an anti-discrimination bill based on SOGIE. In fact, unwittingly it will lead to a violation of the constitutional guaranty of equal protection. As illustrated in a case cited in a position paper of Courage Philippines (2005) there were two factory workers who were both due for promotions—one a homosexual while the other a “straight” person. The homosexual can use the anti-discrimination provision in the SOGIE law against a homophobic employer, but the “straight” person cannot claim anti-discrimination based on the SOGIE law against a biased homosexual employer. The proposed SOGIE bill ironically permits and allows discrimination and inequality. Under the constitution, similar subjects should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. (To be continued).