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When the law discriminates

It must be made clear that the true discrimination against the LGBTQ community does not actually lie in how they are treated by their fellow man but rather by how the law itself treats them

Jess Varela

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Recently, the Sexual Orientation and Gender Identity and Expression Equality Bill, otherwise known as the SOGIE Bill, became the center of national debate, getting into the halls of Congress, capturing radio, television, print and throughout social media. The discussions continued all the way to the use of restrooms, which unfortunately, takes away the gist of what SOGIE should be about.

The purpose of the SOGIE bill is to end the discrimination against the LGBTQ community. As noble as this may sound, this bill loses focus on what issues actually need fixing and how to do it.

In order to correct a problem, you must first understand its nature. Thus, it must be made clear that the true discrimination against the LGBTQ community does not actually lie in how they are treated by their fellow man but rather by how the law itself treats them. This is because for the most part the LGBTQ community, society has accepted them or at worse, they have been tolerated by the majority of Filipinos. So, let us put aside those meaningless issues as to the comfort rooms, workplace issues and whatever the media in general has chosen to focus on, but rather delve into issues that should be looked into.

Property rights. A very common challenge between members of the LBGTQ community is when a couple has a title to a house or some other substantial property that both contributed to. When a partner passes away, the relatives of the deceased usually has legal claim and a number of those partners left behind end up with nothing. If they were of the opposite sex, the Family Code, despite their lack of marriage, if they cohabited as husband and wife for a period of at least five years, would have given them some kind of protection.

Custodianship over a minor. There are some LGBTQ couples that adopt a child, but since our laws do not recognize LGBTQ relationships, only one of them may adopt on paper. This may not seem to be a problem until the partner who was given the adoption paper of a child dies. The law will not allow or grant his partner child custody in view of the legal fiction that states that the partner and child are strangers to one another. Moreover, when the property of the deceased goes to the child and if the child is of minor age, custody of the child goes to a guardian and not the partner and thereby granting to the custodian the day-to-day asset management of the child. The surviving partner shall have no legal claim as he has no relation whatsoever to the deceased and the child.

Birth certificate. Under the SOGIE Bill, the sex of the child will not be indicated until that said minor decides his sex at the age of 10. This provision in my view was created to indirectly challenge the issue on same-sex marriages, thus it does not fix any problem but rather sidesteps over it while creating more confusion in its wake. This provision for one will make a 10-year-old decide. You cannot vote or drink until you reach the age of 18, you cannot enter casinos until you are 21, but you can decide your sex at the age of 10. Unfortunately, jurisprudence was established that once the sex is registered, it can never be changed.

I believe that it may be time to look beyond the trivial issues that surround the LGBTQ. The focus should be the on discrimination created by law. Paraphrasing the famous psychologist Dr. Jordan Peterson, “Legislating equality brings about more inequality.” Rather than concentrating on outcomes, legislation should be geared to equal opportunities.

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