SILVERIO VS REPUBLIC

G.R. No. 174689 October 22 2007 [Change of name or sex]

FACTS:
Rommel Jacinto Dantes Silverio having undergone a sex reassignment surgery, sought to have his first
name changed from Rommel to Mely, and his sex from male to female. Trial court granted his petition.
CA, however, upon appeal filed by the Republic of the Philippines thru the OSG, reversed the trial court
decision, holding that there is no law allowing the change of entries of either name or sex in the birth
certificate by reason of sex alteration.

ISSUE:
Whether or not Rommel's first name and sex be changed on the ground of sex reassignment.

RULING: No. There is no law authorizes the change of entry as of sex and first name through the
intervention of sex reassignment surgery. Article 376 of the Civil Code as amended by RA 9048 (Clerical
Error Law), together with Article 412 of the same Code, change of name or sex in the birth certificate is
allowed by the courts so long as clerical or typographical errors are involved.

Changes sought by Silverio will have serious legal and public policy consequences. To grant this petition
filed by Silverio will greatly alter the laws on marriage and family relations. Second, there will be major
changes in statutes that underscore the public policy in relation to women.

SILVERIO v. REPUBLIC
October 22, 2007 (GR. No. 174689)

FACTS:

On November 26, 2002, Silverio field a petition for the change of his first name Rommel Jacinto to
Mely and his sex from male to female in his birth certificate in the RTC of Manila, Branch 8, for reason
of his sex reassignment. He alleged that he is a male transsexual, he is anatomically male but thinks and
acts like a female. The Regional Trial Court ruled in favor of him, explaining that it is consonance with
the principle of justice and equality.
The Republic, through the OSG, filed a petition for certiorari in the Court of Appeals alleging that there is
no law allowing change of name by reason of sex alteration. Petitioner filed a reconsideration but was
denied. Hence, this petition.

ISSUE:
WON change in name and sex in birth certificate are allowed by reason of sex reassignment.

HELD:
No. A change of name is a privilege and not a right. It may be allowed in cases where the name is
ridiculous, tainted with dishonor, or difficult to pronounce or write; a nickname is habitually used; or if
the change will avoid confusion. The petitioners basis of the change of his name is that he intends his
first name compatible with the sex he thought he transformed himself into thru surgery. The Court says
that his true name does not prejudice him at all, and no law allows the change of entry in the birth
certificate as to sex on the ground of sex reassignment. The Court denied the petition.
DOCTRINE:

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

The determination of a person's sex appearing in his birth certificate is a legal issue and the court must
look to the statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical
or typographical errors are involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to
substantial changes and corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. - As used in this Act, the following terms shall mean:

xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such
as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other existing record or
records: Provided, however,That no correction must involve the change of nationality, age, status
or sex of the petitioner. (emphasis supplied)

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.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the
civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those
that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion
that it covers the correction on the ground of sex reassignment.
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."26 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.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of
marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial
decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person.
Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts
or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or
impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality and his family membership.27

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.28 (emphasis
supplied)

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. This is fatal
to petitioner's cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. - The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be
sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from
documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth,
by the physician or midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of
birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father
is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f)
such other data as may be required in the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the
time of birth.29 Thus, 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"32 or "the distinction between male and female."33 Female is "the sex that produces ova or
bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova." 35Thus, 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." 36 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.