Fulfilling the promise of basic fairness
Sponsorship speech of Akbayan Rep. Kaka Bag-ao for the Anti-Discrimination Bill (HB515)
September 27, 2011 / Committee on Women and Gender Equality
Good afternoon, Madam Chair and honorable members of the committee.
In an interview in New York during the Asia Society Forum last month, President Noynoy Aquino reiterated his position on LGBT rights: that while the Aquino government is not ready to tackle the issue of same-sex marriage, it believes that LGBTs should not be discriminated.
The statement of the President breaks the atmosphere of invisibility and silence that the previous GMA administration has build around the issue of equal rights. For almost a decade, the Philippine government turned a blind eye to the plight of Filipino lesbians, gays, bisexuals, and transgenders, and instead of engaging in meaningful dialogues about the inclusiveness of human dignity, it allowed divisive sectarianism to trump equal rights. Not everyone would be pleased about the stance that President Aquino made on same-sex marriage: by stating that it is not his administration’s priority, those who are opposed to it would see the stand as tepid; on the other hand, those pushing for same-sex marriage would see it as a concession to the Catholic Church.
But whether one is anti or pro same-sex marriage, it is important for all of us to step out of the hostile atmosphere that has marked our discussions on LGBT rights and go back to where the debate should be situated: within the context of human rights and equality. This is why the pronouncement of President Aquino is important: that whether we believe in same-sex marriage or not, we should all make a stand for equality.
The nature of the bill that we are tackling today, Madam Chair, is precisely that: basic fairness, and realizing the promise of equality guaranteed in our constitution. It reflects the yearning of many Filipinos for that chance to be treated as equals, and to live in a nation where dignity is not determined by one’s gender, or the sex of the person we found ourselves loving.
Basic fairness is the prayer of any mother whose child is being bullied in school for being too effeminate, for cross-dressing, for being “bakla”. It is the common aspiration of lesbian and gay students who, having faced prejudice in their schools and communities because of their sexuality, fear that they would encounter the same gender-based biases once they’ve entered the labor force.
When a gay man goes home after spending three nights in jail, where he suffered extortion, physical abuse, and humiliation in the hands of policemen who arrested him for vagrancy or prostitution, solely on the basis of the presence of condoms, his thoughts would be on the ordeal that he went through. This incident of police abuse would sear on his mind how dignity could be taken away easily and arbitrarily by abusive law enforcers. Same-sex marriage would be the last thing he’d think about.
Reducing LGBT rights to same-sex marriage renders invisible the inequality and abuse faced by Filipino LGBTs. This is the status quo, Madam Chair, that the Anti-Discrimination Bill aims to cure: we hope to provide a remedy for the inequality experienced by LGBTs by ensuring that human rights violations committed against them are penalized.
The Anti-Discrimination bill introduces the language of sexual orientation and gender identity in our laws and defines these concepts. This is not entirely novel, in a sense, since both sexual orientation and gender identity have been mentioned in some of our laws already. Currently, there are four laws where the above terms have been mentioned:
- Under Section 59 of the PNP Reform Act of 1998, the NAPOLCOM is mandated to establish a gender sensitivity program that includes the prohibition of discrimination on the basis of sexual orientation;
- Section 17 of the Magna Carta for Public Social Workers (2007) includes protection against discrimination on the basis of sexual orientation as one of the rights of government social workers;
- The Magna Carta of Women (2009) has included sexual orientation as a protected category in its human rights principles (Section 3, para 4) and gender identity in its women in sports provision (Section 14);
- The definition of crimes against humanity under the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (2009) includes widespread persecution against any groups or collectivity on the basis of several grounds, including sexual orientation.
However, neither sexual orientation nor gender identity have been defined under these laws. Furthermore, since their scope is limited, they do not provide comprehensive protection against discrimination on the basis of sexual orientation and gender identity.
By defining sexual orientation and gender identity in our laws on gender equality and human rights, we likewise harmonize our domestic laws with binding international laws and covenants that we have signed, among them the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women.
These international human rights instruments have already been applied to cases of human rights violations against LGBTs. For instance, as early as 1994, the UN Human Rights Committee, the committee that monitors the enforcement of the ICCPR, declared in Toonen vs Australia that the anti-sodomy law of the Australian State of Tasmania goes against the Covenant.
Madam Chair, the bill likewise explicitly prohibits acts of discrimination in areas where LGBTs often meet prejudice.
In public service, the bill aims to address illegitimate and unconstitutional barriers to access to public service, one of which is the continuing refusal of the armed forces to allow the entry of LGBTs. The AFP has repeatedly claimed that it is open to LGBTs, and yet under its policies, ‘homosexual tendency’ is a basis for removal from the active force or rejection of one’s application to serve the country as a soldier.
The same arbitrary and unconstitutional bias could be seen in the case of Ang Ladlad, whose application for accreditation was rejected by COMELEC due to ‘immorality’.
The bill also aims to penalize discrimination in the workplace. In some private schools, teachers found to be in a relationship with people of the same sex could be dismissed from work. The first documented case of LGBT-related discrimination in the workplace involved a lesbian couple who were dismissed by their employer, a human rights NGO, because of their decision to come out as a couple. A case was filed against the NGO but it was dismissed by the NLRC due to the absence of any protective laws against discrimination based on sexual orientation and gender identity.
The bill also aims to enforce equality in educational institutions. Some schools still impose discriminatory admission policies through ‘masculinity tests’ that rate student applicants according to their behavior. Some schools also include patently discriminatory policies in their student handbooks, among them prohibitions on expressions of effeminacy among male students. Some private and public schools also impose rules against organizing of LGBT groups, thus curtailing the right to freedom of assembly, another form of discrimination that the bill aims to penalize.
The persistence of stigma is also one barrier to universal healthcare. The growing HIV infection among gays, bisexuals, transgenders, and other men who have sex with men proves that life-saving health services, especially those linked to sexual health, are not accessed due to the persistence of stigma and discrimination. According to the United Nations, the perception that HIV is a gay disease and discrimination based on sexual orientation and gender identity make it harder for HIV prevention services to reach these communities.
Discrimination is likewise experienced by lesbians in healthcare. A lesbian organization reported before, for example, that OB-gynes would refuse to treat lesbians because they’re not women.
HB 515 also aims to penalize harassment and abuse committed by law enforcers against LGBTs. Some law enforcers use their position to reinforce biases against LGBTs through the wrongful application of the law: lesbian couples, for instance, are arrested using our anti-kidnapping policy on the wrong and homophobic assumption that no decent woman would get into a consensual relationship with a lesbian unless she was kidnapped by the lesbian. Gay men and transgenders are arrested through the wrong enforcement of our anti-prostitution laws, using condoms as sole evidence to rationalize police operations that lead to the detention of gay men and transgenders. Some policemen assume that condoms indicate sexual activity, and sexual activity between men could only be transactional or paid because no decent man would have sex with another man.
Finally, the bill wants to prohibit mandatory psychiatric treatments that aim to ‘correct’ one’s homosexuality. There is a consensus in the medical field already that homosexuality is not a pathological condition, and therefore it should not be cured. Alarmed by the growing popularity of conversion therapies in the US, the American Psychological Association established a Task Force on Appropriate Therapeutic Responses to Sexual Orientation in 2009 and concluded that such therapies cannot change one’s sexual orientation. The Task Force even found evidence that such conversion therapies could be harmful.
The bill, as you can see, doesn’t grant additional rights to LGBTs. It merely corrects practices and policies that deny the full enjoyment of rights and freedoms that are supposedly accorded equally to all members of the human family. The alarming incidents of discrimination on the basis of sexual orientation and gender identity also indicate that we do need an anti-discrimination law to enable the guarantees provided in our constitution and in various international human rights instruments that the Philippines has signed.
To close my sponsorship speech, let me share with you what UN Secretary General Ban Ki Moon said in a statement supporting the call for the recognition of LGBT rights in the UN. He said that “it is not the ‘Partial’ or ‘Sometimes’ Declaration of Human Rights, but the ‘Universal’ Declaration of Human Rights.” As members of this esteemed committee, I appeal to you to help fulfill this promise of basic fairness and equality not just for a few Filipinos, or some Filipinos, but for all Filipinos.
Maraming salamat, Madam Chair.
 Aquino’s exact words: “Gays shouldn’t be discriminated against in terms of occupation and other aspects. I am not prepared to support it (gay marriage).” – Philippine Star interview, 2010