SILVERIO v.

REPUBLIC (2007)

Ponente: J. Corona | G.R. No. 174689  | October 22, 2007

Petitioner: Rommel Jacinto Dantes Silverio

FACTS:

 On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of
his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The
petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent
 Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines
Silverio and Anita Aquino Dantes on April 4, 1962. 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. 1 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" culminated on January 27, 2001 when he underwent sex reassignment surgery 2 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."
 An order setting the case for initial hearing was published in the People’s Journal Tonight, a
newspaper of general circulation in Metro Manila, for three consecutive weeks. 3 Copies of the order
were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.
 On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the
petition was made.
 During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American
fiancé, Richard P. Edel, as witnesses.
 On June 4, 2003, the trial court rendered a decision 4 in favor of petitioner. Its relevant portions read:
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. Firstly, the [c]ourt 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.
 On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for
certiorari in the Court of Appeals. 6 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 Appeals 7 rendered a decision8 in favor of the Republic. It ruled that
the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex
in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of
Appeals granted the Republic’s petition, set aside the decision of the trial court and ordered the
dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied. 9 Hence,
this petition.

ISSUE: W/N Silverio may successfully change the name and sex appearing in his birth certificate to reflect the
result of a sex reassignment surgery. (NO)
HELD:

 This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA
9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or
Nickname. – No entry in a civil register shall be changed or corrected without a judicial order, except
for clerical or typographical errors and change of first name or nickname which can be corrected or
changed by the concerned city or municipal civil registrar or consul general in accordance with the
provisions of this Act and its implementing rules and regulations.

 RA 9048 now governs the change of first name. 14 It vests the power and authority to entertain
petitions for change of first name to the city or municipal civil registrar or consul general concerned.
Under the law, therefore, jurisdiction over applications for change of first name is now primarily
lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude
the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative
petition for change of name is first filed and subsequently denied. 15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating
change of first name are primarily administrative in nature, not judicial.
 RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname.  – The petition for change of first name or
nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner and
he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

 Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to
make his first name compatible with the sex he thought he transformed himself into through surgery.
However, a change of name does not alter one’s legal capacity or civil status. 18 RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion,
changing petitioner’s first name for his declared purpose may only create grave complications in the
civil registry and the public interest.
 Before a person can legally change his given name, he must present proper or reasonable cause or
any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced
by the use of his true and official name. 20 In this case, he failed to show, or even allege, any prejudice
that he might suffer as a result of using his true and official name.
 In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was
not within that court’s primary jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an improper remedy because the proper
remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue
as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept.
More importantly, it had no merit since the use of his true and official name does not prejudice him at
all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far as the
change of his first name was concerned.

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
 (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: 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." 35 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." 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.

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 its grant of the petition was in consonance with the principles of justice and equity.
It believed 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.37 One of its essential requisites is the legal capacity of the
contracting parties who must be a male and a female.38 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,39 certain felonies under the Revised Penal Code 40 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 "[n]o 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.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as
having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or
on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written
word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly recognized parameters of social convention
and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions
of public policy to be addressed solely by the legislature, not by the courts.