Compilation of articles on the SOGI bill, LGBT 'rights', and same sex 'marriage'

For the convenience of those arguing in favor of the family and marriage, here are the articles or papers I've written on the matter so far:

- There is no such thing as SOGI rights, just human rights;
- The SOGI law will hurt business owners, schools, the military;
- House testimony on the SOGI anti-discrimination bill;
- Gay rights and marriage;
- Gay marriage not a human right;
- Still no right to gay marriage;
- Death and the transgender;
- Transgender policy: he or she as they want to be; and
- The continued womanization of men.

Inasmuch as LGBT activists are wont to rely on international law to override Philippine law to advance their agenda, here are my thoughts on international human rights (click here).

Feel free to copy, quote, or share with proper attribution.

We must elect a pro-family president

my Trade Tripper column in the 29-30 April 2016 issue of BusinessWorld:

This election campaign season unfortunately neglected the family.

Distractions (some necessary, some not) prevented the nation from putting in the needed time to discuss two really important issues.

And while debates abounded on national security, crime, unemployment, and inequality, the most important issues, one that actually encompasses all others due to their fundamental nature, were never raised.

Am referring, of course, to human dignity and the traditional family.

Princeton professor Robert George famously said there are three pillars to a decent and dynamic society. The third was about having “fair and effective system of law and government.”

This is a matter commonly known to most Filipinos.

However, what we disastrously fail to realize is how important the first two pillars are to the rule of law. These are “respect for the human person” and “the family” (i.e., that based on the commitment of a husband and a wife).

Regarding the human person, George notes that a “society that does not nurture respect for the human person -- beginning with the child in the womb, and including the mentally and physically impaired and the frail elderly -- will sooner or later (probably sooner, rather than later) come to regard human beings as mere cogs in the larger social wheel whose dignity and well-being may legitimately be sacrificed for the sake of the collective.”

Measures such as euthanasia and abortion (as well as the extrajudicial killing of criminals) obviously do not help in advancing respect for the human person.

Regarding the family, without it “there is no transmission of the virtues which underpin society and which also ensure respect for human dignity. Political and legal institutions cannot function without people who respect the fundamental virtues that bind society.”

The importance of the family cannot be overestimated.

Research by Wilcox, Lerman, and Price for the Institute for Family Studies “shows that states with higher levels of married parenthood enjoy higher levels of growth, economic mobility for children growing up poor, and median family income, along with markedly lower levels of child poverty.”

The impact of the family on the economy is so strong, in fact, that it is a better predictor of economic health than the population’s “educational attainment.”

Harvard economist Raj Chetty backs this up, saying that “the strongest predictors of upward mobility are measures of family structure.”

Family Research Council’s Patrick Fagan was more direct: “No matter which way you look at it -- through the lens of income, savings, or poverty -- marriage is the great engine of the economy, with every household a building block that either contributes or takes away, millions of times over. Put all these families together, and we have the team that runs the American economy.”

Even more direct: “The foundation for a productive household begins with marriage”. “Cohabitation does not take the place of marriage, and there are very strong indications that cohabitation may rival single parenthood as the largest generator of child poverty, while divorce is the cause of most women and children entering poverty in any given year.”

Much was made this election season regarding crime. What was incredibly missed was how taking care of the traditional family structure could go a long way towards a solution.

The Atlantic’s Kay Hymowitz pointed out that 70% of youths in prison “did not grow up with both parents.” An even starker study found that only 13% of criminal juveniles “grew up with their married parents.”

Finally, referencing a study by Cynthia Harper and Sara McLanahan: “The bottom line is that there is a large body of literature showing that children of single mothers are more likely to commit crimes than children who grow up with their married parents. This is true not just in the United States, but wherever the issue has been researched.”

The desperation caused by the breakup of the traditional family structure was famously summed up -- ironically -- by Barack Obama:

“We know the statistics -- that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and 20 times more likely to end up in prison. They are more likely to have behavioral problems, or run away from home or become teenage parents themselves. And the foundations of our community are weaker because of it.

More than corruption and more than any other issue, to protect the family is a matter of national survival.

Unfortunately, we have candidates who, unknown to many, have filed bills or advocated measures that experience taught are extremely damaging to the traditional family structure.

These involve contraceptives, euthanasia, same sex marriage, divorce, and the not so well thought through Sexual Orientation and Gender Identity.

In the remaining days of this campaign, Filipinos are urged to grab the opportunity to make its vote one that protects human dignity and the traditional family.

Now, more than any other time in our history, we desperately need a pro-family president.

To next year’s president: Slash government

my Trade Tripper column in the 11-12 December 2015 issue of BusinessWorld:

Last Dec. 2, I spoke at the University of Asia and the Pacific’s Business Economics Club 2015 Year-end Business Economics Briefing. The theme this year was “2016: New Normal or New Mediocre.” It was apt, coming off a horrible 2015, even by merely using policy direction as sole standard.

And if public commentator Ben Kritz is to be believed, 2016 promises to be an annus horribilis. An assessment I happen to agree with.

In any event, the point I wanted to make in the Briefing was essentially threefold:

• Our foreign policy must flow from an effective domestic policy, for which experienced well trained leadership is vital;
• The traditional family institution must be protected for its vital social benefits, as well as economic significance and overall effect on the common good; and
• The need to cut back on government and put more responsibility (and choice) to the people.

Of the first, I need not dwell on, it being previously discussed in other articles for this column. What will be said is that many critical challenges will be faced by the next administration (perhaps so intended by the current one): managing a likely legal victory over China at The Hague in relation to our sea claims, a Moro Islamic Liberation Front disgruntled over perceived noncompliance of a possible implementing legislation with the Comprehensive Agreement on the Bangsamoro, and the ramifications of public courtship (as what happened during the Asia-Pacific Economic Cooperation meeting in Manila) for the Trans-Pacific Partnership over the Regional Comprehensive Economic Partnership.

On the second, I refer the reader to “Strong Families, Prosperous States: Do Healthy Families Affect The Wealth Of States?” (W. Bradford Wilcox, Robert I. Lerman, and Joseph Price; American Enterprise Institute, 2015):

“Higher levels of marriage, and especially higher levels of married-parent families, are strongly associated with more economic growth, more economic mobility, less child poverty, and higher median family income at the state level in the United States.”

Furthermore: “Violent crime is much less common in states with larger shares of families headed by married parents, even after controlling for a range of socio-demographic factors at the state level... This is noteworthy because high crime rates lower the quality of life and real living standards and are associated with lower levels of economic growth and mobility.”

Hence, this column urges people to vote for candidates that will do away with nonsense such as government subsidized contraceptives, gay “marriage,” divorce, and euthanasia; and instead support those that uphold the traditional marriage and the family. It’s really the socially and economically sensible thing to do.

On the last, it is really urged by this column (and will be a theme repeated throughout 2016) to move away from the paternalistic, socialistic form of government that crept over the country through the decades.

It comes with a cost: a proposed 2016 national budget ballooned to P3 trillion, representing a whopping 461% increase from 2000 and a nearly 300% from 2006. Add to that a nearly P6-trillion national debt.

And this will not be solved by better tax collection or increased personal income tax. Regarding the latter, as John Mangun pointed out, any non-insane increase would still only constitute 14% of the national budget.

The point is that whatever way our government goes regarding tax increases, a budget deficit will still result.

No. The best way for the Philippines moving forward is to really start cutting down the size of government, which now is a humongous 25% of our economy.

Right now, our welfare expenses (using the 2015 budget as benchmark) add up to 64%: this includes programs such as socialized housing, climate change, social protection such as the Conditional Cash Transfer, health care, and employment.

These are fine. But we’ll be far better off allowing the bulk of the responsibility to be shouldered by the private sector.

Cut the size of government, lower spending, lower taxes, allow people to keep more of their hard-earned money, and give them the power to choose which health care, school, business, etc., they want.

Cut the bureaucracy and allow our citizens the power to open and close up businesses as is needed, to hire and fire people, and give incentives for them to share their wealth (such as donations to charity) rather than coercively taking money through taxes.

Such policies are more democratic and empowering of Filipinos.

On the other hand (and again using the 2015 budget as benchmark), on the one job that government is really supposed to do, which is national security, we allocated only a mere 4.4%.

In a world where terrorists and secessionists abound, this is patently not enough. Increased military spending and beefing up our civilian police force should be encouraged.

Clearly, these things cannot be achieved overnight.

But those looking to vote in the next elections would do well seeking candidates that put their trust in the Filipino, encouraging personal responsibility, rather than in fat paternalistic bureaucracies.

Pope Francis’ charity in truth

was my Trade Tripper column in the 26-27 June issue of BusinessWorld:

Laudato Si, Pope Francis’ “green encyclical,” was released to great commotion last week. Immediately, both sides of the environmental divide were quick to claim the papal pronouncement as supporting their positions. The document, it must be said, is superbly engaging reading and contains insights well worth sharing. But radical it is not.

That is, “radical” in the progressive, liberal sense of the word. Nothing much that is new is said in Laudato Si, and its power as an “encyclical for the ages” (as one commentator puts it) has more to do with its earnest call to arms in putting faith at the center of earthly struggles.

In that context, Laudato Si is essentially the Caritas in Veritate for the environment. Indeed, as the Archbishop of Sao Paolo, Brazil, Cardinal Odilo Pedro Scherer, points out: “In his encyclical, Benedict also officiated in the language of the Magisterium of the Church the concept of ‘human ecology,’ dealing with the correct coexistence of people in society and in relation to the environment.”

It would be wrong to consider Laudato Si frowning upon the market economy. In one particular passage, it even mentions that “to continue providing employment, it is imperative to promote an economy which favors productive diversity and business creativity.”

Undeniably, portions of Laudato Si are quite Pope Benedict XVI’ish: “Stop with the cynicism, secularism and immorality” and “human ecology also implies another profound reality: the relationship between human life and the moral law.”

And then it ups the ante.

Putting environmentalists on the back pedal, Pope Francis unflinchingly declared: “To blame population growth instead of extreme and selective consumerism on the part of some, is one way of refusing to face the issues.” This puts the Church squarely at odds with climate change advocates such as Jeffrey Sachs (who incidentally attended a recent Vatican conference on climate change) who strongly pushed for population control as part of environmental development.

Indeed, Pope Francis was blunt to people that “view men and women and all their interventions as no more than a threat, jeopardizing the global ecosystem, and consequently the presence of human beings on the planet should be reduced and all forms of intervention prohibited.” In other words, he was referring to activists who valued the trees and little snails more than human beings. Hence, “a sense of deep communion with the rest of nature cannot be real if our hearts lack tenderness, compassion and concern for our fellow human beings.”

And as I wrote on June 12 in anticipation of the encyclical (“Climate change and of leaving science to the scientists”): “The Church’s mandate is with moral issues and moves with absolute sure footing when dealing in matters where the natural law and Scripture are clear: abortion, same-sex marriage, contraception. But to give specific empirical measures or remedies relating to the environment, inequality, poverty, immigration? That is better left to people with the established expertise for it.”

Such a point Pope Francis took time to make clear: “On many concrete questions, the Church has no reason to offer a definitive opinion; she knows that honest debate must be encouraged among experts, while respecting divergent views.”

And this is the correct thought. Consensus among scientists is one thing, but to take such as truth is another. One commentator puts it this way: the Pope “has (just as we have) no guarantee of the soundness of the views of any scientist or group of scientists. A view that he adopts based on what a climate-change scientist or group of scientists -- be he or they believers (known to their critics as ‘alarmists’) or skeptics (known to their critics as ‘deniers’) -- say, could be wrong.” Note Laudato Si’s quite off comments on air-conditioning, for example.

Finally, there is Pope Francis’ express criticism of gender theory and transgenderism: “Valuing one’s own body in its femininity or masculinity is necessary if I am going to be able to recognize myself in an encounter with someone who is different. It is not a healthy attitude which would seek ‘to cancel out sexual difference because it no longer knows how to confront it.’”

The foregoing is no mere religious medievalism. The rationale here is that “the principle of the common good is respect for the human person as such, endowed with basic and inalienable rights ordered to his or her integral development.”

All in all, Pope Francis shares nothing whatsoever with progressive environmental activists’ overriding faith in institutions, policies, or human activism but rather a continuation of and consistency with Church teaching: that to care for the environment is connected with respect for all that God created, whether it be in the new life that we see in children, the unborn, and the distinction between men and women.

Indeed, more than any pollutant or corruption, the “culture of relativism is the same disorder which drives one person to take advantage of another.”

Three articles on divorce

For easy reference, here are the links for the three articles on divorce previously published in my Trade Tripper column in BusinessWorld:

> Divorce means freedom? Not really. Nor is it free.
> Divorce is just a bad idea.
> Divorce and the progressive ambition to destroy the family.

The Supreme Court ruling on the RH Law: One year later

my Trade Tripper column in this weekend issue of BusinessWorld:

Last Apr. 8 marked a year to the day of the Supreme Court’s ruling in Imbong vs. Ochoa, more commonly known as the “RH Law case.” Quaintly touted then as the “trial of the century,” it paved the way for a ruling with fundamental implications for social policy and jurisprudence here in the Philippines. Albeit in a manner not recognized by many. Indeed, while the RH Law case represented a victory for organized legal planning and cohesive argumentation, it at the same time saw one of the more eccentric examples of lack of focus in legal advocacy.

One has to give credit indeed to the government lawyers who defended the law -- led by then Solicitor General (now Supreme Court Justice) Francis Jardeleza and Assistant Solicitor General (now Solicitor General) Florin Hilbay -- for their well orchestrated, legally coherent, and sophisticatedly reasoned stand.

Conversely, one can only shake one’s head at the mystifying amount of attention given by the Court on “abortifacients” and “the right to life.” This becomes evident when one realizes that the question of life’s beginnings should never have been an issue in the first place. One can see this not only from the Supreme Court’s immediate affirmation that “life begins at conception” but from the very fact that RA 10354 itself (as noted by the Court in its ruling) “clearly mandates that protection be afforded from the moment of fertilization” and “that abortion is a crime.” But to emphasize how surrealistic (or just plain baffling) the whole thing is: whenever somebody now wants to complain about alleged abortifacients, the law they run to for protection is -- you guessed it -- none other than RA 10354.

All the while, the real and true issue of artificial non-abortifacient contraception was inexplicably forgotten.

During the early days of the release of the ruling, the idea was even flouted (evidently as a face-saving measure) that contraception was not really the target of the complaint. But that is wrong. And irresponsible. The reality is that government subsidization of contraception was and has always been the point of the entire case.

Ironically, it took a foreigner to grasp the various significant parts and implications of the ruling. Brian Simboli, writing for Public Discourse, puts it this way:

It is “troubling that while the Court asserts there is no compelling state interest to justify overriding the conscientious objector rights of health providers, it does not similarly conclude that objecting taxpayers should not be burdened coercively with taxes used to purchase contraceptives.”

This is significant because the main point of the RH Law was not that it made contraceptives legal (it has always been legal and cheaply available, cheaper than bottled water), but that it provided huge amounts of tax money to subsidize it.

Think about that when you read about the Department of Health asking for an additional P1.7 billion in its budget this year for the exclusive implementation of the RH Law. Admittedly, not all of it will be used for the purchase of contraceptives.

But note: the latest Global Competitiveness Report indicated tuberculosis as one of the country’s biggest health problems, with the Philippines ranking a low 127 (out of 144 countries) in this area and with a business impact of 114. The Philippines also ranked low in primary education and infrastructure. Why not put the money there?

The foregoing is crucially within the context of another fact that Simboli points out: “[The Supreme Court] did not dismiss a petitioner claim that oral contraceptive use has been correlated with significant health risks.”

But the most damaging portion of the ruling is when the Supreme Court, to use the words of Simboli, “greatly delimits the role of natural law reasoning.”

The ruling, with all due respect, evokes a substantial misappreciation of natural law. It seemed to say that our Constitution (and all our laws) has no philosophy, without history, and has vacuum as context. Had the ruling been within the parameters of the US Constitution, the RH Law ruling may have credence. But even then, the US Supreme Court employed natural law reasoning in a number of cases.

Our Supreme Court, on the other hand, has the power to strike down laws considered done with grave abuse of discretion (a power that the US Supreme Court does not have) and itself knowingly employed the natural law (or reasoning involving or related thereto) in many of its past decisions.

The significance of this, as Simboli points out, is that it renders our Supreme Court with “quite a weak basis for responding to whatever legislative threats may emerge, not just to the pro-life cause, but also to the centrality of the family.”

In short, think about the consequences of the RH ruling the next time the issues of same-sex marriage, divorce, euthanasia, LGBT “rights,” and even abortion comes up.

The SOGI law will hurt business owners, schools, the military

my Trade Tripper column in the 27-28 issue of BusinessWorld:

Simply put: to create “rights” based on purported sexual orientation or gender identity (SOGI) is bad policy, without basis, and wholly problematic. It will lead to substantial long-term confusion and (ironically) discrimination. As I pointed out in my congressional testimony, in the end there is no such thing as SOGI rights, there is just human rights.

Witherspoon Institute’s Ryan Anderson pretty much said the same thing when he testified before the US Congress on the Employment Non-Discrimination Act Bill. In an article based on his own testimony (“Sexual Orientation and Gender Identity Are Not Like Race: Why ENDA is Bad Policy,” March 2015), Mr. Anderson emphasized the ambiguous nature of sexual orientation or gender identity: “Social science research continues to show that sexual orientation, unlike race, color, and ethnicity, is neither a clearly defined concept nor an immutable characteristic of human beings. Basing federal employment law on a vaguely defined concept such as sexual orientation, especially when our courts have a wise precedent of limiting suspect classes to groups that have a clearly-defined shared characteristic, would undoubtedly cause problems for many well-meaning employers.”

“McHugh and Bradley caution against elevating sexual orientation and gender identity to the status of protected characteristics because of the lack of clear definition: ‘There is no scientific consensus on how to define sexual orientation, and the various definitions proposed by experts produce substantially different groups of people’.”

The point is that, no scientific consensus exists that homosexuality is genetic. And there is no consensus on the nature and origin of sexual orientation. This is significant. Because in order for a penal law, such as the SOGI bill, to be effective, it must be:

a) able to identify properly those covered by the protections it offers; and

b) capable of being implemented by the police or judicial system in terms of evidence.

The SOGI bill does give definitions of “gender identity” and “sexual orientation” but they are unfortunately (and expectedly) ambiguous and superficial. Much of what can constitute identity or orientation cannot be seen through clothing or even at skin level. And yet, the State is expected to punish individuals (e.g., employers, faculty administrators, business owners, ordinary service employees, etc.) for any failure on their part to identify due to lack of workable standards on the very particular kind of person covered by the bill.

There is also the difficulty of proving that one has indeed been discriminated due to gender identity or sexual orientation (and not for any other reason), and of proving that such a status of gender identity or sexual orientation did exist at the time of the supposed discrimination.

In other words, there is the failure to identify the evidence necessary that must be presented to our courts that at the time of the supposed discrimination taking place the person making the claim is indeed covered under the purview of the provisions of the SOGI bill and that the person or persons committing the discrimination did so because of that complainant’s sexual orientation or gender identity and not for another (justifiable) reason. This difficulty is heightened because of the possibility that sexual orientation can unilaterally change through time.

Mr. Anderson also effectively put down the mistaken notion that sexual orientation is similar to race: “While race implies nothing about one’s actions, sexual orientation and gender identity are frequently descriptions for one’s actions: ‘gay’ denotes men who engage in voluntary sex acts with other men, ‘lesbian’ denotes women who engage in voluntary sex acts with other women, and ‘transgender’ denotes a biological male who voluntarily presents himself to the world as if female or a biological female who voluntarily presents herself to the world as if male. ‘Race’ and ‘sex,’ by contrast, clearly refer to traits, and in the vast majority of cases denote no voluntary actions.

“Bans on interracial marriage and Jim Crow laws, by contrast, were aspects of an insidious movement that denied the fundamental equality and dignity of all human beings and forcibly segregated citizens. When these interracial marriage bans first arose in the American colonies, they were inconsistent not only with the common law inherited from England, but also with the customs of prior world history, which had not banned interracial marriage.”

Finally, despite the quite limited size of the LGBT population (a recent US study pegs its own LGBT population to 2-5% of population, the Philippine demographic will not be too far off), the SOGI bill quite irresponsibly failed to consider the obvious effects it will have on the great majority of Filipinos. Judging by the usual listing that LGBT advocates have regarding the ‘rights’ they are pushing for, such will involve laws relating to employment, military service, adoption, marriage, student activities, parenting, schools, religion, and government identity documents.

Truth is, we don’t need a SOGI law as we already have SOGI laws: among others, they are called the Constitution, the Civil Code, the Revised Penal Code, and the Labor Code.

My House testimony on the SOGI anti-discrimination bill

Statement on the proposed draft consolidated Bill “Prohibiting Discrimination on the Basis of Sexual Orientation or Gender Identity (SOGI), Providing Penalties Therefore and for Other Purposes”

* Delivered orally before the Committee on Women and Gender Equality, House of Representatives, 10 February 2015.

1. The comments herein are intended as brief preliminary thoughts on the proposed draft consolidated bill (hereafter referred to as the “Draft Law”), without prejudice to a possible further later exposition on the points outlined below.

Nature of international human rights law

2. There is, as yet, no binding international law obligation relating to sexual orientation or gender identity, or as to that designated as LGBT (i.e., lesbian, gay, bisexual, transgender) “rights”. Certainly no written international instrument that expressly mentions sexual orientation or gender identity “rights” constituting a binding international obligation have been entered into by States at the international level. Resolutions, whether of the General Assembly or the Human Rights Council, it must be emphasized, do not form binding obligations on States (and this includes the so-called Yogyakarta Principles).[1] Having said that, at the United Nations level, almost 100 State members have either rejected or otherwise refrained from expressing support for the so-called LGBT “rights”.

3. Even as a matter of international customary law, with its requirements of practice and opinion juris, it would be hard to argue for LGBT rights considering that 78 States have, in fact, expressed the opposite, labeling the same criminal.[2] As pointed out by one social commentator: “In the first place, and unlike the main elements of the Universal Declaration of Human Rights, sexual liberation has no roots in the traditional cultures and religious traditions that shape the lives of the vast majority of people in the world.”[3]

4. But even had there been such a legally binding obligation at the international level, it is in the nature of international human rights law that States will have wide latitude as to its implementation. Many too readily presume the universality of international human rights, ignoring the fact that its relatively recent existence poses problems in implementation at the State level. Specifically for sexual orientation and gender identity, such “are vague and ill-defined, and have come to encompass a whole range of morally problematic ideas, including same-sex marriage, adoption by gay and lesbian couples, and presenting the homosexual lifestyle positively to schoolchildren.”[4]

5. There is also the fact that international human rights law is quite political.[5] The United Nations Committee on the Elimination of Discrimination Against Women (which oversees the Convention on the Elimination of All Forms of Discrimination Against Women), for example, has proven to be quite controversial, seen by many as promoting Western-style feminism. The Convention on the Elimination of All Forms of Discrimination Against Women itself has been viewed, by the Women for Faith and Family for one, as being “destructive of rights basic to every human being and the rights of cultural self-determination of nations,” albeit though presenting itself as protecting the rights of women.[6]

Human rights cannot deviate from natural law

6. A point that I believe is beyond contention is that human rights are the "inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being."[7] In short, our rights are based on our appreciation of what it means to be human. Human rights, as in natural law (a universal, objective standard of right and wrong based on right reason, independent of man-made laws[8]), are universal (applicable to everyone and everywhere), and exist in both national and international law.[9]

7. Human rights is, in fact, closely related to that of natural rights,[10] a thought further illustrated by noted philosopher Jacques Maritain: “The philosophical foundation of the rights of man is natural law” and that “the true philosophy of the rights of the human person is based upon the true idea of natural law”.[11]

8. Accordingly, as human rights is based on natural law, then it can be fairly said that there can be no human right contrary to natural law: “The moral absolutes give legal reasoning its backbone. xxx These moral absolutes which are rationally determined and essentially determinate, constitute the most basic human rights.”[12]

9. International law itself recognizes the significance of natural law in relation to the matter of rights. One can easily see this in the creation of the United Nations (of which Jacques Maritain played a not insignificant role), as well as important documents on human rights such as the 1948 UN Declaration on Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, amongst others (incidentally, these international instruments are mentioned in the Draft Law even though none make direct express reference to sexual orientation or gender identity rights).[13] Thus, one basis of international law is said to be the natural law, upon which our concepts of jus cogens (as well as erga omnes) is rooted.

10. The Philippine legal system itself considers “the United Nations instruments to which the Philippines is a signatory, namely the UDHR ... binding upon the Philippines, the ICCPR and the ICESCR.”[14] This has been expressly stated by the Supreme Court in Republic vs Sandiganbayan, where then member of the Court Reynato Puno cogently and methodically traced the history of the concept of natural law and elaborates on the central position it holds in the Philippine legal system.[15] The significance of the foregoing is that it expresses a fact about the Philippine legal system: that our concept of human rights stem from natural law.

11. Recently, of course, there has been a move to present our legal system as purely coming from the perspective of the positivist theory of law. This is perhaps understandable when one considers that a substantial number of our law professors were brought up appreciating the contributions of liberal academic legal institutions in the US. But this problematically compels one to essentially take the view that as Congress could provide a right, then Congress can take that right away.

12. The foregoing, however, runs counter to our established belief that human rights as universal and immutable, as can be seen from the natural law inspired provisions of the Constitution such as Articles II and III thereof. Legal philosopher Javier Hervada says it at his concise best: “Outside the fulfillment of natural law, there is no right.”[16]

13. Thus, this insight from the Supreme Court is relevant for the issue at hand: “not everything that society – or a certain segment of society – wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. xxx [To do so will have] the effect of diluting real human rights.”[17]

Constitutionalism as duty of all

14. It is also relevant to note that Article VIII Section 1 of the 1987 Constitution has broadened the scope of judicial review, expanded by the adoption of Article VIII, Section 1 of the 1987 Constitution, which defines judicial power as “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government.”

15. “Grave abuse of discretion” is frequently defined as "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction."[18] In addition, explanations of the concept of “grave abuse of discretion” equate the same to where power is exercised “in an arbitrary and despotic manner by reason of passion and hostility.”[19] The foregoing also must be accomplished with the Constitution’s directive that the State “promote the common good … [and] truth.”[20]

16. The point here is that the mandate given to the Supreme Court also results in the logical corollary duty on the part of Congress: that the broad discretion that the legislature enjoys in enacting laws is not absolute but must follow, among others, such standards on legislation being “sound”, fair, and reasonable.

17. Put another way, constitutional law, properly understood, does not give to the Supreme Court the exclusive power to determine the constitutionality of an issue. It is not meet or proper that the other branches of government pass such questions to the Supreme Court.18. Congress is certainly authorized, empowered, and mandated to pass only legislation that in its rightful use of judgment is in compliance with our Constitution and in accordance with right reason.

Ambiguity of Draft Law

19. Beyond the fundamental issues relating to international law, the nature of rights, and constitutional interpretation, there are also other more specific issues that need to be addressed in the Draft Law, particularly with regard to ambiguity and the difficulty of implementation.

Identity of those protected

20. At the outset, it would be apt to point out that Facebook alone identifies at least 51 genders[21]. Gender experts, however, vary: there could be as many as three or even as many genders as there are individuals.

21. The point here is that, no scientific consensus exists that homosexuality is genetic.[22] And there is no consensus on the nature and origin of sexual orientation.[23] This is significant. Because in order for this penal law, meaning the Draft Law, to be effective it must be able to:

a)      identify properly those covered by the protections it offers; and
b)      capable of being implemented by the police or judicial system in terms of evidence.

22. True, Section 3.b. and 3.c. of the Draft Law does define “gender identity” and “sexual orientation” but it does so in an unfortunately ambiguous and superficial way. Much of what can constitute identity or orientation cannot be seen through clothing or even at skin level. And yet, we are supposed to punish individuals (e.g., employers, faculty administrators, business owners, ordinary service employees, etc.) for failing to identify the very particular kind of people covered by a special law.

23. There is also the difficulty of proving that one has indeed been discriminated due to gender identity or sexual orientation (and not for any other reason), and proving that such a status of gender identity or sexual orientation did exist at the time of the supposed discrimination. In other words, there is the failure to identify the evidence that must be presented to our courts that at the time of the supposed discrimination taking place the person making the claim is indeed covered under the purview of the provisions of the Draft Law and that the person or persons committing the discrimination did so because of that complainant’s sexual orientation or gender identity and not for another (justifiable) reason. This difficulty is heightened because of the possibility that sexual orientation can unilaterally change through time.[24]

24. It is to be noted that the foregoing ambiguities cannot even be cured by an administrative rule or regulation due to the lack of appropriate standards or legally perceived boundary.

Extent of protection from discrimination

25. Then there is the paradox that by seeking the removal of discrimination, that discrimination is the result. Section 3.a of the Draft Law defines “discrimination” again in an unfortunately ambiguous way, to the point that the Draft Law seeks to provide discrimination in relation to “all rights and freedoms”.

26. This, however, as I said, paradoxically creates its own set of discriminations. Not all citizens enjoy equal rights and freedoms. And yet, a tiny portion of the population is to experience what the rest of the population does not enjoy.

27. I reiterate that the LGBT population is quite limited. A recent US study pegs its own LGBT population to between 2-5% of population.[25] The Philippine demographic may not be too far off.

28. Fundamentally, and this is something that many perhaps do not appreciate, our system of laws is built on discrimination. We distinguish and we make judgments: from who can run for Congress to who can practice law or medicine; can someone drink alcohol, to who can drive a car. What our laws, do not allow for is wrongful discrimination, built on unequal treatment between those belonging to a similar class. As Richard W. Garnett, Law Professor at Notre Dame Law School, says: "it is not true that ‘discrimination’ is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it -- say, through its expression and spending -- even when it is wrong. ‘Discrimination,’ after all, is just another word for decision-making, for choosing and acting in accord with or with reference to particular criteria."[26]

29. The eccentric thing about the Draft Law is that it purports to say that there is no difference between the rest of the Philippine population and the LGBT and then proceeds, as I noted above, to provide rights and protections to the LGBT that the rest of the community does not enjoy (which is the total absence of legal discrimination). Not only is this against the essence of democratic rule, it also illogically violates the doctrine of equal treatment, as well as the idea of human rights being universal.[27] Rather than equality of rights, we have a balkanization of rights for groups of people rather than for all people.

Effect on other laws

30. The Draft Law also needs further study on the probable effect it will have on other laws. Judging by the usual listing that LGBT advocates have regarding the “rights” they are pushing for, such will involve laws relating to employment, military service, adoption, marriage, student activities (such as attending school dances with same-sex dates and dressed in gender nonconforming ways if they choose), parenting, schools, and government identity documents.[28]

31. In which event, the implications and possible conflicts such will have vis-à-vis the constitutional protections relating to religion, free expression, academic freedom, and contract will need to be examined and address, along with its relationship to family (including marriage, adoption, succession), labor, education, tax and social services, military, and health laws, amongst others. The affected stakeholders need to have a say and be consulted because, as pointed above, the possible unintended effect is discrimination in order to ostensibly rid of discrimination.

SOGI and natural law

32. It has to also be considered that the identity of our society can be seen in our Constitution. And our society and its Constitution were both created not within a vacuum or through a veil of ignorance, but with a peculiar context, circumstance, and history.

33. It is a given that our Constitution has been inspired by the text of the US Constitution. Clearly, the people who wrote our Constitution knew the context in which they were writing it (particularly coming off the Martial Law experience, as an example) but also the context in which the US Constitution was written.

34. One particular context that must be considered is the background of the US Constitutional Convention delegates, particularly the religious and philosophical beliefs of the delegates. Most were Christians (only two were Catholics, the rest were Protestants). At the very least, all believed in a deity or were theists of some sort. Also, the delegates were certainly quite aware of Aristotelian thought, and quite definitely the ideas of the Enlightenment thinkers such as Locke and Rousseau. That would mean then that the US Constitution was framed with the idea of man’s telos or purpose, of self-evident natural rights, and of the common good (or “general will”).

35. As such, the explanation by noted legal philosopher John Finnis on the relationship between laws and homosexuality is of interest: “Let me begin by noticing a too little noticed fact. All three of the greatest Greek philosophers, Socrates, Plato and Aristotle, regarded homosexual conduct as intrinsically shameful, immoral, and indeed depraved or depraving. That is to say, all three rejected the linchpin of modern ‘gay’ ideology and lifestyle.”[29]

36. “At the heart of the Platonic-Aristotelian and later ancient philosophical rejections of all homosexual conduct, and thus of the modern ‘gay’ ideology, are three fundamental theses: (1) The commitment of a man and woman to each other in the sexual union of marriage is intrinsically good and reasonable, and is incompatible with sexual relations outside marriage. (2) Homosexual acts are radically and peculiarly non-marital, and for that reason intrinsically unreasonable and unnatural. (3) Furthermore, according to Plato, if not Aristotle, homosexual acts have a special similarity to solitary masturbation, and both types of radically non-marital act are manifestly unworthy of the human being and immoral.”

37. Accordingly, there is an inherent absence of the element of the “common good” so necessary in our constitutional system, inasmuch as homosexuality itself would involve the partners “treating their bodies as instruments to be used in the service of their consciously experiencing selves; their choice to engage in such conduct thus disintegrates each of them precisely as acting persons.” This is contrary to reason and the idea of human dignity that natural law seeks to protect and is embodied in our Constitution.

38. If, then, what Finnis says is correct, then we have a proposed legislation that not only seeks to recognize a matter that contradicts natural law (as well as the tenets of the Constitution, particularly of the common good) but even, as I pointed out above, gives rights to a small portion of the population over that of other citizens. Fundamentally, this opens up the Draft Law to being categorized as one that is “arbitrary”, "capricious or whimsical exercise of judgment”, contrary to reason, amounting to “grave abuse of discretion”.

39. Having said that, this is not to say that wrongful discrimination should be tolerated. It shouldn’t. But there are two things to be considered:

a)      The provisions of the Constitution, particularly its Bill of Rights, should be allowed and trusted to resolve whatever concerns that the Draft Law is concerned about; and
b)      In this issue, complicated as it is, the Congress would do well not to ignore the basic philosophical foundations of our Constitution: the common good (found in the Preamble) and subsidiarity (the theme of which runs through the Constitution, particularly on devolution of authority). These two go hand in hand.

40. Instead, with the Draft Law, we are creating further complexities: of men who say they are women using women’s restrooms, of girls coming to school using boy’s school uniforms or sports jerseys, of persons demanding to be identified contrary to what is recorded in public documents. The point here is not our passing feelings or sentiments but that legislation and public policy build a society based on truths about the human person and human dignity rather obfuscate matters with unproven social claims that could possible pave the way for the confusion of future generations.

41. Finally, of common good (and subsidiarity's role in it), the best definition can be found in John Finnis' Natural Law and Natural Rights: "a set of conditions which enables the members of a community to attain for themselves reasonable objectives, or to realize reasonably for themselves the value(s), for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community."

42. Note the repeated mention of the attainment "for themselves" by the people. The government, including this Congress, is encouraged not to involve itself in every facet of human interrelationships. Sometimes, as in the present case, it is better to trust in the inherent wisdom of the people and the Constitution rather than create a law incapable of grasping a matter of immense social, legal, scientific, medical, psychological, economic, and political complexity.
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[1] a fact pointed out by the Supreme Court in Ang Ladlad vs Comelec, G.R. No. 190582, , 08 April 2010: “At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.”

[2] see listing by the International Lesbian, Gay, Bisexual, Trans and Intersex Association; http://76crimes.com/76-countries-where-homosexuality-is-illegal/, retrieved 08 February 2015

[3] Exporting Gay Rights, RR Reno, First Things, February 2012

[4] Human Rights, Sexual Orientation, and Gender Identity at the UN; Austin Ruse, Public Discourse, November 2012

[5] Four Human Rights Myths, Susan Marks, LSE Law, Society and Economy Working Papers 10/2012; London School of Economics and Political Science

[6] http://www.wf-f.org/CEDAW.html

[7] See Sepúlveda, Magdalena; van Banning, Theo; Gudmundsdóttir, Gudrún; Chamoun, Christine; van Genugten, Willem J.M. (2004). Human rights reference handbook (3rd ed. rev. ed.). Ciudad Colon, Costa Rica: University of Peace. ISBN 9977-925-18-6.

[8] This is a commonly accepted definition, sometimes attributed to Javier Hervada (see Criticial Introduction to Natural Law, 2006)

[9] See Nickel, James (2010). "Human Rights". The Stanford Encyclopedia of Philosophy (Fall 2010 ed.).

[10] Jones, Peter. Rights. Palgrave Macmillan, 1994, p. 73.

[11] Man and the State, Jacques Maritain, University of Chicago Press, 1951, Chap. IV, pp. 76-107.

[12] Natural Law Theory, Natural Law and Legal Reasoning, John Finnis, 1992, pp.148

[13] Justice Puno, Separate Opinion, Republic vs Sandiganbayan, GR No. 104768, 21 July 2003; see also Morsink, Johannes (1999). The Universal Declaration of Human Rights: origins, drafting, and intent. University of Pennsylvania Press. ISBN 978-0-8122-1747-6

[14] Justice Puno, Separate Opinion, Republic vs Sandiganbayan, GR No. 104768, 21 July 2003; citing Fernando, E., Perspective on Human Rights: The Philippines in a Period of Crisis and Transition (1979), pp. 1-2, citing Borovsky v. Commissioner of Immigration, et al., 90 Phil. 107 (1951); Mejoff v. Director of Prisons, 90 Phil. 70 (1951); Chirskoff v. Commissioner of Immigration, et al., 90 Phil. 256 (1951); Andreu v. Commissioner of Immigration, et al., 90 Phil. 347 (1951).

[15] G.R. No. 104768, July 21, 2003.

[16] Underscoring supplied; Criticial Introduction to Natural Law, Javier Hervada, 2006, p.137

[17] Ang Ladlad vs Comelec, G.R. No. 190582, 08 April 2010

[18] See, for example, De Vera v. De Vera, G.R. No. 172832, April 7, 2009.

[19] Ibid.  Citation omitted.

[20]  see the Preamble

[21] What Each of Facebook’s 51 New Gender Options Means; Daily Beast, 15 February 2014

[22] see for example the result (or non-results) of Dr George Rice of Canada’s University of Western Ontario study, reported in the Independent, (U.K.), April 23, 1999, p. 5; as well as Science, April 23, 1999, pp. 571, 665–667.” Note, however, Paul McHugh, University Distinguished Service Professor of Psychiatry at Johns Hopkins University (in his article Surgical Sex, First Things, November 2004): “Johns Hopkins Psychiatry Department eventually concluded that human sexual identity is mostly built into our constitution by the genes we inherit and the embryogenesis we undergo.”

[23] Sexual Orientation and Homosexuality, American Medical Assocation; retrieved 8 February 2015; http://web.archive.org/web/20130808032050/http://www.apa.org/helpcenter/sexual-orientation.aspx

[24] see Sexual Orientation, Gender Identity, and Employment Law, Paul McHugh and Gerard V. Bradley, Public Discourse, July 2013

[25] Sexual Orientation and Health Among U.S. Adults: National Health Interview Survey, 2013

[26] Confusion About Discrimination, Richard W. Garnett, Public Discourse, April 5, 2012

[27] A short word on “tolerance”: “The root meaning of the word [tolerance] suggests what the virtue involves. The Latin tol- is related to a group of words having to do with carrying a burden: German dulden, to be patient, to endure; Old English tholian, to suffer; Latin tuli, I have borne. When we tolerate we bear with someone or something; we bear the existence of a wrong. We do so because, given the circumstances, to protest would invite a greater wrong. There is a time for public correction, and a time for quiet endurance and, if the opportunity arises, private correction.” (Tolerance and reciprocity, Professor Anthony Esolen, Public Discourse)

[28] American Civil Liberties Union; retrieved 8 February 2015, https://www.aclu.org/lgbt-rights

[29] Law, Morality, and "Sexual Orientation" John Finnis; 1997