An Act Prohibiting the Discrimination on the Basis of Sex
AN ACT PROHIBITING DISCRIMINATION
ON THE BASIS OF SEXUAL ORIENTATION OR GENDER IDENTITY (SOGI),
PROVIDING PENALTIES THEREFORE AND FOR OTHER PURPOSES
LEGISLATIVE STATUS (In Substitution of House Bill Nos. 110, 342, 1230, 1842, 2571 and 2572)
SUBMITTED BY TWG TO MOTHER COMMITTEE
|SECTION 1. Title. This Act shall be known and cited as the
“Anti SOGI Discrimination ACT.”
|The Homosexual population was first estimated by Arthur Kinsey for the US to be 10% of the male population. It has since been concluded that the more correct figure is half that and the lesbian population even lower. Interestingly total population survey of the city of Dumaguete in 1968 yielded the following estimates: .7% were homosexuals and lesbians. The State is therefore legislating a special law for a very small number of people. According protection implies acceptance of this behavior. It is unfortunate that during these public discussions it is not politically correct to talk about the relationship of HIV AIDS and this type of behavior. In the Philippines 84% of all new sexually transmitted HIV infections in 2013 occurred among MSM (Men who have Sex with
Men). Medically speaking the root cause of HIV in MSM is the homosexual act but this fact does not enter in the public discourse because it is not politically correct to do so. One runs the risk of being accused as homophobic. But if there is such a massive campaign of how smoking is so dangerous to one’s health shouldn’t we also do this for HIV AIDS?
|SECTION 2. Declaration of policy. The State recognizes the fundamental right of every person, regardless of sex, age, class, status, ethnicity, color, disability, religious and political beliefs, sexual orientation and gender identity, to be free from any form of discrimination. It shall therefore intensify its efforts to fulfill its duties under international and domestic laws to respect, protect and fulfill the rights and dignity of every individual.||Article IV Section 1 of the Constitution states: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” Every citizen of the Philippines enjoys this equal protection including the SOGI population. Hence technically this legislation is not really necessary.|
|Towards this end, the State shall exert efforts to address all forms of discrimination and violence on the basis of sexual orientation and gender identity for the promotion of human dignity as enshrined in the UN Universal Declaration of Human Rights, the Convention on the Elimination of all Forms of Discrimination Against Women particularly the General Recommendation No. 28 on Non-Discrimination Based on Sexual Orientation and Gender Identity, Convention on the Rights of the Child, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and all other relevant and universally accepted human rights instruments and other international conventions to which the Philippines is a signatory of.||The UN Declaration of Human Rights does not specifically mention the rights of the SOGI population and very likely all the other international agreements. Very likely the only document that talks about sexual orientation is the CEDAW (Convention on the Elimination of Forms of Discrimination Against Women. The latter is a document strongly colored by the feminist ideology. This practice of invoking international agreements is meant to intimidate the other lawmakers (who very likely have not read any of these International Agreements) to sign-in as co-authors perhaps for the sake of political correctness.|
|SECTION 3. Definition of Terms. For purposes of this Act, the following terms shall be defined as follows|
|a. “Discrimination” shall be understood to imply any distinction, exclusion, restriction, or preference which is based on any ground such as sex, sexual orientation, gender identity, whether actual or perceived, and which has the purpose or effect of nullifying or impairing the recognition, access to, enjoyment, or exercise by all persons of an equal footing of all rights and freedoms.||1. Legal definitions of discrimination should identify the class that is being subjected discrimination in a clear and objectively verifiable way so that it is verifiable not only to
the subject but to everyone else. Since one is giving an entitlement to a special group one has to make sure that this will be limited to that particular group. Unfortunately since sexual orientation is mainly an emotion and hence subjective it does not lend itself easily to verification. One is left with some superficial elements of determining gender identity.
2. The inclusion of the term “whether actual or perceived” also means that there is a risk that discrimination may also be a mere figment of the imagination of the subject. This law can therefore become a dangerous and unjust one by placing
in the hands of the SOGI population a means to harass everyone else. It can even be used by anyone who can pretend to be a SOGI after all there is no way of validating this claim.
|b) “Gender Identity” refers to the personal sense of identity as characterized, among others, by manners of clothing, inclinations, and behavior in relation to masculine or feminine conventions. A person may have a male or female identity with the physiological characteristics of the opposite sex.||This definition shows the influence of the gender ideology since it defines gender exclusively as a cultural construct. Psychologists explain that the process of psychological development of the individual starts with gender identity
imprinting at 6 months old when the baby becomes aware of himself in the eyes of his parents. In the course of childhood he undergoes a process of attachment to the same sex parent and eventually to his same sex peers to understand how
persons of his sex acts, plays, etc. Underlying this process are all the physical aspects of that define his sex–the XX chromosome that triggers his physical development and makes every single cell of his body different from every single
cell of the opposite sex including making the structure and the working of his brain different from that of the opposite sex. Hence Gender is not exclusively a cultural construct There are physical biological elements that influences the
individual’s inclination to attach himself to the same sex parent in order to affirm his sexual identity. Hence one who claims to have male or female identity with the physiological characteristics of the opposite sex is one who has a
personality disorder as a consequence of the failed process of attaching to one’s same sex parent and eventually one’s same sex peers. This failure makes the individual conflicted—he longs for masculine influence but is unable to get it. He is alienated from his same sex even as he longs for masculine influence. He ends up worshiping them from afar to the point of eventually eroticizing these inclinations. This is the reason why persons with SSA deserve our mercy and
compassion. Even more so when they are able to rise above their condition by fighting to live a chaste life.
|“Sexual Orientation” refers to the direction of emotional sexual attraction or conduct. This can be towards people of the same sex (homosexual orientation) or towards people of both sexes (bisexual orientation) or towards people of the opposite sex (heterosexual orientation).||There are physiological and psychological factors that shape sexual orientation.
PHYSICAL & EMOTIONAL CONTROL CENTERS. Sexual orientation has neurological and endocrinal bases. The human brain has centers which control and influence the
EMBRYONIC (UNDER)DEVELOPMENT. At the embryonic stage, ie, approximately 7 weeks after fertilization/conception, the release of the chemical messenger Testosterone in genetic male (XY) embryos triggers the rewiring of the brain towards masculinization. In terms of physique, what would normally proceed as female reproductive organs will be rerouted to male reproductive organs (verifiable by ultrasound). Likewise, barring any disturbance or trauma, the action of Testosterone should cause the full rewiring of emotion centers that would otherwise remain feminine. Any disturbance or trauma during this delicate early stage of human development can result in incomplete rewiring or masculinization in the control centers for emotions and physique.
THE HOMOSEXUAL CONDITION. Hormonally, a low Testosterone-Estrogen ratio will result in an insufficient conversion of either or both the centers of emotion or
PUBERTY. While passing through childhood, the masculinity (or lack of it) will begin to manifest in emotional preferences and behaviors. It is at the age of puberty that the control center for secondary sex characteristics (Pituitary Gland) triggers messages for the emergence of a more pronounced male or female physique. This is nature’s way of reinforcing the person’s developing emotional orientation.
COUNSELING & THERAPY. However, when there is a pathological dissonance between physique and emotion sets, the adolescent will find himself confused. Counselling and therapy – which involve a belated “rewiring” of emotion centers are the appropriate responses in such cases.
MALE & FEMALE SAME-SEX ATTRACTION. Thus far, we have been discussing physiological male same-sex attraction as the result of a low Testosterone-Estrogen ratio. We should note that female same-sex attraction results from a surplus or high T-E ratio, and that statistically, a shortage of Testosterone
SAME SEX PARENT AFFECTION. Moreover, there are psychological factors that can help in affirming genetic masculinity. Every child has a required quota of female and male emotional affirmation. When boys fail to receive male reinforcement in the childhood stage, they will continue seeking it in adolescence and beyond.
AGGRAVATORS. In a matriarchal, macho culture, there would be a tendency for physiologically normal males to eschew female company (sexual attraction notwithstanding) even into adulthood. Ideological feminism aggravates this.
If in childhood, the process of attachment to same sex parent and to same sex peers proceed without a hitch, the process of affirming the person’s gender identity will be sufficient.
When a normal male child has difficulty attaching himself his father (due to absence, cruelty, bullying, etc) or is rejected by male peers during childhood, he is forced to develop defensive mechanisms and to attach himself to the opposite sex parent and models her. This situation creates a conflict – he wants a masculine influence in his life but he fears getting attached to his father and rejection from his male peers. The psychological vacuum and longing for masculine affirmation and affection endures into later stages in life. The pronounced sex drives associated with the onset of puberty, will tend to eroticize the attraction.
Until 1973 the American Psychiatric Association had considered homosexuality a “disturbance of sexual identity” (DSM IV) not as a result of a real study but through a vote!
|SECTION 4. Discriminatory practices. It shall be unlawful for
any person, natural or juridical, to:
(a) Include sexual orientation or gender identity, as well as the disclosure of sexual orientation, in the criteria for hiring, promotion, transfer, designation, work assignment, re-assignment, dismissal of workers, and other human resource movement and action, performance review and in the determination of employee
compensation, career development opportunities, training, and other learning and development interventions, incentives, privileges, benefits or allowances, and other terms and conditions of employment; Provided that, this provision shall apply to employment in both the private sector and public service, including military, police and other similar services.
This prohibition, on the basis of sexual orientation and gender identity, shall also include the contracting and engaging of services of juridical persons.
|HR personnel management experts know that there are tasks
wherein women perform better than men, and vice versa. There are tasks wherein the common visible traits of homosexual persons are an advantage. This provision unduly imposes constraints on the right of enterprises to pursue job fitness.
The issue should not be discrimination/non-discrimination, but rather the honest recognition of real HR potentials of individuals, regardless of sexual orientation, when sexual orientation does not pose a significant threat to the discipline and culture of the enterprise and on the effective performance of the job.
|(b) Refuse admission or expel a person from any educational or training institution on the basis of sexual orientation or gender identity, without prejudice to the right of educational and training institutions to determine the academic qualifications of their students or trainees;||There is an existing Church prohibition regarding the admission of homosexuals as seminarians and as part of the academic or non-academic personnel of the seminary. In the selection of its ministers, the Church has a right to do so, not on the basis of discrimination, but on the basis of the criterion of masculinity of its Founder.|
|Impose disciplinary sanctions, penalties harsher than customary or similar punishments, requirements, restrictions, or prohibitions that infringe on the rights of the students on the basis of sexual orientation or gender identity;
This provision extends to acts committed against a student or trainee to discriminate his or her parents or legal guardian based on sexual orientation or gender identity;
|c) Refuse or revoke the accreditation, formal recognition, and / or registration of any organization, group, political party, institution or establishment, in
educational institutions, workplaces, communities, and other settings, solely on the basis of the sexual orientation or gender identity of their members or of their target constituencies; This prohibition shall also include the prevention of and prohibitions on attempts to organize;
|(d) Deny a person access to public or private medical and other health services open to the general public on the basis of such person’s sexual orientation or
|(e) Deny an application for or revoke a professional or other kind of license, clearance certification or any other document issued by the government due to the applicant’s sexual orientation or gender identity;||Undoubtedly this provision is the gateway to same sex marriage. According to this provision two homosexuals can apply for a marriage license. This would go against the Family Code which defines in Article 1 that Marriage is a special contract of permanent union between a man and a woman.|
|(f) Deny a person access to or the use of establishments, facilities, utilities or services, including housing, open to the general public on the basis of sexual
orientation or gender identity; There is a denial when a person is given inferior accommodations or services; This prohibition includes the discrimination of juridical persons solely on the basis of the sexual orientation or gender identity of their members or of their target constituencies;
|Flamboyant, bombastic, loud, eccentric behaviors, often bordering on the bizarre is typical of those who crave for the due attention they feel they have been deprived of. If that is the kind of behavior contemplated here, then we must object and invoke the laws prohibiting public nuisance and the
disturbance of peace. Modesty and propriety are civil virtues that uphold respect for the sensibilities of others.
|(g) Subject or force any person to any medical or psychological examination to determine and/or alter the person’s sexual orientation or gender identity without the expressed approval of the person involved, except in cases where the person involved is a minor under the age of discernment in which case prior approval of the appropriate Family Court shall be required. In the latter case, the child shall be represented in the proceedings by the Solicitor General or the latter’s authorized representative; and||This section reflects the denial of the LBGT movement that the homosexual or same-sex orientation is a pathology. This is an unnecessary provision, since all citizens are covered anyway by the right to free and informed consent for medical
or any therapeutic treatment.
The conditions mandated here are designed to discourage parents from applying the necessary therapies to rectify dissonant emotion sets of their offspring.
|(h) Harassment by members of institutions involved in the enforcement of law and the protection of rights of any person on the basis of his or her sexual orientation or gender identity. Among other cases, harassment occurs when a person is arrested or otherwise placed in the custody and extortion, physical or verbal abuse takes place, regardless of whether such arrest has legal or factual basis. Harassment of juridical persons on the basis of the sexual orientation or gender identity of their members, stockholders, benefactors, clients, or patrons is likewise covered by this provision;||We acknowledge that the reason this provision was included is because of the actual harassment experienced by LGBT for not being normal males or females. We must sympathize with them in this regard.
However, this “safeguard” provision is already covered for all citizens by the Civil Code and other statutes, and is therefore redundant. Specific such as these belong to the level of Administrative Law (Implementing Rules and Regulations).
|SECTION. 5. Administrative Sanctions. Refusal of a government official whose duty is to investigate, prosecute or otherwise act on a complaint for a violation of this Act to perform such a duty without a valid ground shall constitute gross negligence on the part of such official.|
|SECTION. 6. Penalties. Any person who commits any discriminatory practice, as mentioned in Section 4, shall upon conviction, be penalized by imprisonment of (RRB-1)not less than one (1) month but not more than six (6) months, or a fine of not less than ten thousand pesos (p10,000) nor more than twenty thousand pesos (p20,000), or both such fine and imprisonment (Bag-ao -2) a fine of not less than P100,000 but not more thanP500,000 or imprisonment of not less than one (1) year but not more than six (6) years, at the discretion of the court. In addition, community service in terms of human rights education to the perpetrator and exposure to the plight of the victims can be imposed at the discretion of the court.
If a graver offense is committed motivated by bias, prejudice, or hate based on SOGI, such shall be meted corresponding maximum penalties depending on the
Act shall prescribe in three (3) years. The penalties provided under this Section shall be without prejudice to administrative liability for government officials and employees.
|In light of the foregoing observations, these penalties should be examined as possible violations of civil rights, parental rights, discord with existing laws.|
|SECTION. 7. Inclusion of SOGI concerns in All Police Stations. The Women and Children’s Desks now existing in all police stations, shall also act on and attend to complaints/cases covered by this Act. In this regard, police handling said desks shall undergo appropriate trainings with human rights-based approach to include among others gender sensitivity and awareness in proper terminology, dynamics of LGBT relationships and hate crime investigations.
Complainant-minors can be represented by parents, guardians or a non-government organization of good standing and reputation.
|SECTION 8. Separability Clause. If any provision of this Act is declared unconstitutional or otherwise invalid, the validity of the other provisions shall not be affected thereby|
|SECTION. 9 . Repealing Clause. All laws, decrees, orders, rules and regulations or parts thereof inconsistent with this Act are hereby repealed or modified accordingly.|
|SECTION. 10. Effectivity This Act shall take effect fifteen (15) days after its publication in the Official Gazette or in at least two (2) newspapers of general circulation.|
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