SILVERIO, vs.

REPUBLIC OF THE PHILIPPINES,

CORONA, J.:

FACTS:
When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind! North
Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out
came two human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman
"Maganda" (Beautiful). (The Legend of Malakas and Maganda)

petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the
RTC Manila, The petition impleaded the civil registrar of Manila as respondent.

Petitioner born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes. His name was registered
as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had
always identified himself with girls since childhood. Feeling trapped in a man’s body, he consulted several doctors in the United States.

He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a
"woman" when he underwent sex reassignment surgery in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz,
Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact
undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth
certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female.".
the trial court rendered a decision in favor of petitioner.
(do not include)
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for
the purpose of making his birth records compatible with his present sex.
the court is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual
re-assignment, petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioner’s
misfortune to be trapped in a man’s body is not his own doing and should not be in any way taken against him.
the court believes that no harm, injury or prejudice will be caused to anybody or the community in granting the petition. granting the
petition would bring the much-awaited happiness on the part of the petitioner and her fiancé and the realization of their dreams.

The court order the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of petitioner, specifically
for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE.
the Republic of the Philippines (Republic), thru the OSG, filed a petition to CA. It alleged that there is no law allowing the change of
entries in the birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic.

Petitioner moved for reconsideration but it was denied.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the
Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.

ISSUE: WON sexual reassignment is a ground for the change of entry in the Birth Certificate as to Sex – NO

WON Equity is a ground for the change of entry in the Birth Certificate as to Sex – NO

HELD:

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment

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.

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.

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.

Under Section 5 of Act 3753 of the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the
time of birth.29Thus, 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,30 is immutable.31

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.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity

The trial court opined that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.

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,41 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 "no 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.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil
registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If
the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform
with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.