Intersex Philippines, the pioneering organization for intersex people in the Philippines, is calling for the inclusion of “intersex” in the definition of “sex” in the proposed anti-discrimination law that is now being tackled in Congress.
The organization released its position ahead of the International Day Against Homophobia, Biphobia, Intersexism and Transphobia (IDAHOBIT) this May 17, a global event that aims to raise awareness of LGBTQIA human rights violations, and stimulate interest in LGBTQIA rights work worldwide.
On May 11, the House Committee on Human Rights started discussing the scope of the proposed “comprehensive” anti-discrimination law. Reportedly, due to the urging of House Minority Leader Rep. Bienvenido Abante (6th District, Manila City), the panel agreed to exclude “intersex” in the definition of “sex” to avoid confusing people about the assigned sex at birth.
“This decision would promote only the binary understanding of ‘sex’ as a concept, which is both incomplete and unscientific,” said Jeff Cagandahan, officer in charge of Intersex Philippines. “This decision would also render the law ineffective as far protecting intersex people, thereby turning back the clock on the progress of intersex rights in the country.”
Had the panel chosen to include “intersex” in the definition of “sex”, it would have paved the way for legal recognition of intersex people in the country. The move would have also backed the 2008 Supreme Court decision that biological parameters cannot be neatly divided into two categories of men and women.
In 2008, in the case of Republic of the Philippines v. Jennifer Cagandahan, the Supreme Court of Philippines delivered a landmark judgment recognizing the right of intersex people to eventually determine their gender.
Recognizing the existence of intersex people, the Supreme Court said: “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 mere appearances when nature itself fundamentally negates such rigid classification.”
With this, Cagandahan said that the House panel should recognize this judgment and review its position.
“In excluding ‘intersex’, the House panel is missing a golden opportunity to affirm intersex rights,” Cagandahan said. “Intersex Philippines calls upon the members of the House Committee on Human Rights to reconsider their decision and expressly prohibit discrimination on the basis of sex characteristics.”
Cagandahan added: “The current legislative discourse in the House reflects a flawed understanding of basic concepts related to intersex status. Inclusion of ‘intersex’ would not only make the definition of ‘sex’ as inclusive, but also convey an evolved understanding of the concept.”
Various legal developments related to this have been happening around the world, and Cagandahan believes these should help guide the House representatives.
Principle 31 of the Yogyakarta Principles, for instance, clearly states that States must make available a multiplicity of gender marker options. As of 2021, several countries worldwide introduced some form of non-binary gender recognition, next to the standard options of “male” and “female”. Non-binary/”third” gender options (mostly ‘X’, ‘other’ or ‘diverse’) have already been introduced through legislation or case law in countries like Australia, Austria, Bangladesh, Canada, Denmark, Germany, India, Malta, Nepal, the Netherlands, New Zealand, Pakistan and a number of US States.
“In Philippines, intersex people continue to face discrimination and stigma due to heteronormative understanding of ‘sex’. Ending the binary normativity of the official sex/gender registration framework is necessary to protect the human rights of intersex people and to ensure their inclusion,” said Cagandahan, who is now lobbying for the House to actually include intersex people to “actively consult with intersex-led organizations and groups to ensure the law is both comprehensive and effective.”