LGBT Discrimination in the Workplace: Narratives of Social Injustice

Gingco, Ray Mark

Julian, Stephen

Licayan, Joseph Jebon

Olaivar, Rhea Mae

March 25, 2015

INTRODUCTION

The Philippine’s workforce is becoming more diverse in terms of gender, ethnicity,

and religion as well as in sexual orientation. Sexual orientation remains the –so-called “last

acceptable and remaining prejudice”- in modern societies and organizations in comparison

with other dimensions of diversity.1 Thus, lesbian, gay, bisexual, and transgender (hereafter,

LGBT) employees continue to face a variety of challenges that range from being forced to

remain closeted to actual job dismissal. The economic status of LGBT persons are

continually deprived and challenged because they cannot find and secure employment due to

the fact that they are not assessed by companies based on skills, work experience and

competence but instead are judged of their sexual orientation and gender identity (hereafter,

SOGI). Despite their increasing public visibility, there are no statistics to give us the extent

of SOGI discrimination in the Philippines. The dearth of information is itself a sign of

another facet of the problem. Government agencies that should be involved in issues of

SOGI discrimination – the Department of Labor and Employment (DOLE), the National

Labor Relations Commission (NLRC), the Civil Service Commission (CSC), and

Commission on Human Rights (CHR) – do not aggregate reports of LGBT discrimination.

SOGI discrimination is a category of workplace discrimination that has not become part of

mainstream policy dialogues.2

The Constitution guarantees full respect for human rights and right to equal

protection of the laws, however, it is silent on matters regarding sexual orientation and

gender identity. In a UN resolution3, our government stated that it was bound by its strong

commitments to promote and protect all individuals. It stood against discrimination against

individuals based on their sexual orientation and gender identity. However, it could not

guarantee that it would create new rights for said individuals. Currently, there are no laws

which govern SOGI discrimination cases, with the exception of the “gender-fair” city

1 Sexual Orientation Discrimination in the Workplace by Emir Ozeren.2 Ocampo, M.B. (2011). “Sex” in the Workplace: Approaches to Sexual Orientation and Gender Identity Discrimination in the Workplace absent an Anti-Discrimination Law, the Philippine Law Journal.3 Human Rights Council adopts Resolution on Sexual Orientation and Gender Identity, September 26, 2014.

ordinances in Quezon City,4 Cebu and Davao. Draft bills that protect SOGI has been filed in

the Congress and in different committees.5

The governing law between employers and employees is Presidential Decree No.

442, also known as the Labor Code of the Philippines. While several articles of the Code

have been amended, its main policy is the protection of workers. The Labor Code has no

prohibition of both direct and indirect discrimination except as to gender discrimination

against women, neither sexual orientation nor gender identity is mentioned therein. LGBT

individuals encounter discriminatory practices that affect their employment status. In the

case of lesbian employees, LEAP6, reported that discrimination can occur in the process of

hiring, in the assigning of wages, in the granting of benefits and promotions, and the

retention of employees.

As such, this study will focus on the rights of the members of the LGBT community

in their workplace, in accordance with the Labor Code and other special laws. In support,

the study will use Philippine and foreign case laws, to show the extent of the application of

the Labor Code and the special laws to the LGBT. The study will then evaluate secondary

survey data mainly narratives and experiences utilizing existing journals, articles, and

previous studies focused on the experiences of discrimination of the members of the LGBT

community. The study will be the basis on coming up of recommendations to lessen, if not

eliminate LGBT discrimination in the workplace to the Department of Labor and

Employment and the Commission on Human Rights.

This paper provides a specific analysis of the discrimination suffered by members of

the LGBT community here in the Philippines and will demonstrate the contrast between

existing city ordinances prohibiting discrimination against LGBT members. This paper will

provide an in-depth analysis as well as a comparison of the different ordinances and

highlighting their salient provisions.

Again, accurate information regarding the extent of discrimination suffered by

members of the LGBT is not available.

4 http://newsinfo.inquirer.net/642680/qc-council-approves-pro-lgbt-ordinance.5 House Bill No. 634, House Bill No.14836 Lesbian Activism Project, a non-government organization that advocates for lesbian rights since 1990.

The group has also correlated in this paper the works of John Rawls. John Rawls’

most important contribution to the field of social justice is his text A Theory of Justice

(1971). In his publication Rawls gives what he believes are the foundational characteristics

of the social justice principles of fairness and equality. He accentuates the societal

implications of justice and fairness and also discusses the obligation of society to ensure that

everyone employs both of these principles. Rawls also mentions the governmental

responsibility, referred to as institutions of practices, in ensuring the meeting of these social

justice principles: “It is important to note, however, that the principles of fairness has two

parts, the first which states that institutions of practices in question must be just, the second

which characterizes the requisites of voluntary acts.

In this light, the group cites relevant jurisprudence highlighting the existence of

discrimination and the group’s analysis for each relevant case.

Figure 1: Conceptual Framework

This study aims to address the issues of discrimination in the workplace, specifically:

What are the forms of discrimination experienced by the members of the LGBT community

in the workplace with regard to: a. Benefits; b. Promotion; and c. Job-retention. This is in

Rights of LGBT in the workplace

Article 3, P.D. 442 (Labor Code)

Case Law

Anecdotes gathered with regard to discrimination in the workplace experienced by LGBTs

Special Laws, Ordinances

Recommendation to DOLE and CHR

relation to Article 3 of the Labor Code which states in part that “the state shall afford

protection to labor, promote full employment, ensure equal work opportunities regardless of

sex, race or creed, and regulate the relations between workers and employers.” In the light of

the main issue, the study expects to help the LGBT community. This study aims to aid

future legislation to abolish discrimination in the workplace. Moreover, this study could also

serve as a guide to future decisions of the court regarding justiciable questions involving

discrimination to labor.

There is no single explanation for why some people are lesbian, gay, bisexual or

transgender. The diversity of LGBT expressions and experiences argues against any simple

or unitary explanation. Many experts believe that biological factors such as genetic

influences, prenatal hormone levels, early experiences, and experiences later in adolescence

or adulthood may contribute to the development of these identities.7

According to the Diagnostic and Statistical Manual of Mental Disorders (5th ed.;

American Psychiatric Association, 2013), people who experience intense, persistent gender

incongruence can be given the diagnosis of gender dysphoria. However, a psychological

state is considered a mental disorder only if it causes significant distress or disability. 8 Many

LGBT people do not experience their gender as distressing or even disabling, which implies

that identifying as lesbian, gay, bisexual or transgender does not constitute a mental

disorder.

Currently, an Anti-LGBT discrimination bill was filed anew in the 16 th Congress.

House Bill No. 110 is the new version of the anti-LGBT discrimination bill filed by Rep.

Kaka Bag-ao in the 15th Congress. The act imposes fines and mandatory imprisonment for

discrimination against LGBTs.9

In the United States, the Equal Rights Center and Freedom to Work conducted a

study using fictional pairs of resumes to apply for 100 jobs with federal contractors. One

7 American Psychological Association (2011). Answers to your questions about transgender people, gender identity, and gender expression. Retrieved from http:// www.apa.org/topics/lgbt/transgender.aspx (last visited 17 February 2015).8 M.B. First and J.C. Wakefield (2010). Defining “mental disorder” in DSM-V. Psychological Medicine, 40, pp. 1779-1782.9 http:// http://www.abs-cbnnews.com/nation/07/04/13/anti-discrimination-bill-filed-lgbt-rights (last visited 17 February 2015).

resume listed an applicant’s leadership role in an LGBT organization, and one listed a role

in a non-LGBT organization, such as an environmental or women’s rights group. The LGBT

applicant, however, was designed to be stronger in numerous ways, such as a higher Grade

Point Average and a stronger work experience. These, however, were not enough; the LGBT

applicants were less likely to receive follow-up request for an interview.10

Further, the Williams Institute on Sexual Orientation Law and Public Policy11

aggregated a number of surveys that examined discrimination experienced by gay and

transgender employees and determined that:

a. 15% to 43% of LGBT employees have experienced some form of either

discrimination and harassment in the workplace;

b. 8% to 17% were not hired or fired due to their sexual orientation;

c. 10 % to 28% were not promoted because they were LGBTs;

d. 7% to 41% were verbally and physically abused or had their workplaces

vandalized.12

In the Philippines, Articles 3 of the Labor Code13 provides for protection against

discrimination in the workplace. It provides that the state shall ensure equal work

opportunities regardless of sex, race or creed.

However, the group could not find any statistical data that would show the extent of

sexual orientation and gender identity discrimination in the Philippines. In one forum held

by the Department of Labor and Employment the department recognized the LGBT

community as a marginalized group in the workplace.14 The Commission on Human Rights

likewise took strong steps in support of the LGBT community. The then CHR chair Leila De

10 http:// www.huffingtonpost.com/2014/06/30/lgbt-job-applicants discrimination_n_5538195.html (last visited 15 February 2015).11 The Williams Institute, Documented Evidence of Employment Discrimination and its Effects on LGBT People (July 2011).12 Crosby Burns and Jeff Krehely, Gay and Transgender People Face High Rates of Workplace Discrimination and Harassment (Center for American Progress, 2011).13 Art. 3 of the Labor Code - “The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work.”14 http:// www.dole.gov.ph/secondpage.php?id=1296 (last visited 15 February 2015).

Lima said that “LGBTs remain to be one of the sectors most vulnerable to human rights

abuses, such as workplace discrimination and even harassment in educational institutions.”15

Instances faced by LGBT individuals are being asked inappropriate questions during

job interviews, companies prejudice in the selection, hiring and promotion of said

individuals, stereotypes are used to decide on work responsibilities, and they are expected to

conform to gender roles in the workplace. Some LGBT people are discriminated even before

they are employed. For instance, there are cases of male-to-female transgender women being

told by recruitment officers that they will only be hired if they presented themselves as

males by cutting their hair short, dressing in men’s clothes, and acting in stereotypically

masculine ways.16 For those already employed, there are cases of dismissals of LGBT

employees solely because of their sexual orientation and gender identity (SOGI).17

Another example is when LGBT people are specifically hired in order for them to be

abused. For instance, there are allegedly some call centers that hire LGBT people because

they are unable to legally marry. These companies force LGBT employees to take the

graveyard shifts because they do not have families to go home to. LGBT people also forfeit

the legal benefits that those who can marry enjoy, such as taking maternity leave.18

In a survey conducted by Ateneo de Manila University’s psychological department,

homosexuals felt the need to work harder in order to prove their qualifications to their

employers and that they are less prioritized in promotions compared to their straight

colleagues. They also thought that they were penalized more than straights for the same

mistakes committed.19

In the case of Silverio vs. Republic20 the Supreme Court recognized that there are

people whose preferences and orientation do not fit nearly into the commonly recognized

15 http:// www.newsinfo.inquirer.net/breakingnews/nation/view/20081206-176498/CHR-vowsto-promote-gay-lesbian-rights (last visited 15 February 2015).16 Submission of the Civil Society Organizations Coalition report on the situation of LGBT persons. Available at http://lib.ohchr.org/HRBodies/UPR/Documents/session13/PH/JS13_UPR_PHL_S13_2012_Joint Submission13_e.pdf.17 Discrimination, Outrage magazine. Available at http://outragemag.com/a-closer-look-at-lgbt-discrimination/.18 2013 Philippine National LGBT Community Dialogue.19 No gays allowed, Phil. Daily Inquirer. Avaialable at http://newsinfo.inquirer.net/breakingnews/nation/view/20081206-176498/CHR-vows-to-promote-gay-lesbian-rights.20 G.R. No. 174689, October 22, 2007.

parameters of social convention and that, at least for them, life is indeed an ordeal. Also, in

Ang Ladlad Party vs. COMELEC21 the Supreme Court held that laws of general application

should also apply to LGBTs. And that through the years, homosexual conduct and perhaps

homosexual themselves, have borne the societal disapproval. It is not difficult to imagine the

reasons behind this censure – religious beliefs, convictions about the preservation of

marriage, family and procreation, even dislike or distrust of homosexuals themselves and

their perceived lifestyle.

For purposes of this study, the following terms shall mean:

1. Bisexual refers to an individual who is physically, romantically and/or emotionally

attracted to men and women.22

2. Gay is an adjective used to describe people whose enduring physical, romantic

and/or emotional attractions are to people of the same sex.23

3. Gender Identity refers to one’s internal, personal sense of being a man or a woman.24

4. Heterosexual is an adjective used to describe people whose enduring physical,

romantic and/or emotional attraction is to people of the opposite sex.25

5. Lesbian refers to a woman whose enduring physical, romantic and/or emotional

attraction is to other women.26

6. LGBT is an acronym for “lesbian, gay, bisexual and transgender.” A term that is

more inclusive of the diversity of the community.27

7. Sexual Orientation refers to the scientifically accurate term for an individual’s

enduring physical, romantic and/or emotional attraction to members of the same

and/or opposite sex, including lesbian, gay, bisexual and heterosexual orientation.28

8. Transgender refers to an umbrella term for people whose gender identity and/or

gender expression differs from the sex they were assigned to at birth. The term may

include but is not limited to: transsexuals, cross-dressers and other gender-variant

21 G.R. No. 190582, April 08, 2010.22 http:// http://www.glaad.org/files/MediaReferenceGuide2010.pdf (last visited 15 February 2015).23 Ibid.24 Ibid.25 Ibid.26 Ibid.27 Ibid.28 Ibid.

people. Transgender people may identify as female-to-male (FTM) or male-to-

female (MTF).29

29 Ibid.

DISCUSSION AND ANALYSIS

In the case of Ang Ladlad vs COMELEC30, one of the contentions made by

petitioner was the application of International Law, one of which was the Yogyakarta

Principle. The Yogyakarta Principle is a set of principles relating to sexual orientation and

gender identity, intended to apply international human rights law standards to address the

abuse of the human rights of LGBT people and intersex.31 The principles are intended as a

coherent and comprehensive identification of the obligation of States to respect, protect and

fulfill the human rights of all persons regardless of their sexual orientation or gender

identity.32

The Court denied its application as it ruled “Using even the most liberal of lenses,

these Yogyakarta Principles, consisting of a declaration formulated by various international

law professors, are – at best – de lege ferenda – and do not constitute binding obligations on

the Philippines.  Indeed, so much of contemporary international law is characterized by the

“soft law” nomenclature, i.e., international law is full of principles that promote

international cooperation, harmony, and respect for human rights, most of which amount to

no more than well-meaning desires, without the support of either State practice or opinio

juris.” However, it must be noted that this case involves an election-related case and does

not delve into the issue of work discrimination. The Court stated that it is still not ready to

apply the Yogyakarta Principle as a binding norm as it reasoned “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.” Moreover, the Court

specified that one of the reasons for the refusal of the application of said principle is due to

the fact that “Petitioner has not undertaken any objective and rigorous analysis of these

alleged principles of international law to ascertain their true status.”

30 G.R. No. 19058231 http://en.wikipedia.org/wiki/Yogyakarta_Principles32 Sexual Orientation, Gender Identity and International Human Rights Law: Contextualizing the Yogyakarta Principles by Michael O’Flaherty and John Fisher. Available at http://www.asiapacificforum.net/support/issues/sexual-orientation/downloads/yogyakarta-principles/sexual-orientation-gender-identity-and-international-human-rights-law-contextualising-theyogyakarta-principles-2008

The Court’s ruling did not at all preclude the application of the Yogyakarta Principle

in work or employment discrimination cases. The Court recognized that some declarations

and obligations contained in the Yogyakarta Principle as applicable as it ruled that “There

are declarations and obligations outlined in said Principles which are not reflective of the

current state of international law.” The Justices might have thought that it might still be

premature to apply these obligations due to lack of legislative enactment, and also the

peculiar facts and issues of said case did not warrant its application.

The Court recognized that “European and United Nations judicial decisions have

ruled in favor of gay rights claimants on both privacy and equality grounds, citing general

privacy and equal protection provisions in foreign and international texts. To the extent that

there is much to learn from other jurisdictions that have reflected on the issues we face here,

such jurisprudence is certainly illuminating.” These foreign and international cases is with

regards to so called “sodomy laws” which prohibit either certain types of sexual activity or

any intimacy or sexual activity between persons of the same sex. In some cases, the wording

used refers to vague and undefined concepts, such as crimes against the order of nature or

morality. What these laws have in common is their use to harass and prosecute individuals

because of their actual or perceived sexuality or gender identity.33 One of the foreign

jurisprudence used as reference by the Court in the Ang Ladlad case was the United States

case of Lawrence vs Texas, wherein two homosexuals were arrested in a house for having

sexual intercourse and both were charged with deviate sexual intercourse. The US Supreme

Court in dismissing the case and declaring the homosexual conduct law unconstitutional

ruled “sexual conduct between same-sex partners involves precisely the kind of intimate

decision-making and familial relationships that have been protected under the right to

privacy.”34 This is a landmark decision on the constitutional right to privacy of gays and

lesbians in the United States and the Court applied international human rights law in the

decision, thereby incorporating it into U.S. jurisprudence. This case overturned the 1986

Supreme Court decision in Bowers vs Hardwick that upheld state laws making homosexual

sex a criminal offense.35

33 Report of the United Nations High Commissioner for Human Rights. Available at http://www.ohchr.org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf34 539 U.S. 558 (2003). Available at https://supreme.justia.com/cases/federal/us/539/558/case.html35 Human Rights Watch. Available at http://www.hrw.org/news/2003/07/01/lawrence-v-texas

In Toonen vs Australia, the complaint is about a sodomy law wherein it criminalizes

homosexual sex. A homosexual man from Tasmania argued that his right to privacy under

Article 17 of the International Covenant on Civil Political Rights (ICCPR) has been violated

and it discriminated against homosexuals on the basis of their sexuality, which is a violation

of Article 26 of the ICCPR. The Human Rights Committee ruled that because of said law,

Australia was in breach of the obligations under the treaty as the former ruled that it does not

meet the reasonableness test considering that these provisions are not extensively and

currently enforced, which implies that they are not deemed essential to the protection of

morals and that they arbitrarily interfere with rights under Article 17 of the ICCPR. It is

irrelevant whether laws criminalizing such conduct are enforced or not; their mere existence

continuously and directly interferes with an individual’s privacy.36

The common ground between these cases with that of Ang Ladlad is the recognition

by the Courts of international human rights embodied in the ICCPR and Universal

Declaration of Human Rights (UDHR) of which the Philippines is a signatory thereto. This

is personified in the Court’s ruling: “Our decision today is fully in accord with our

international obligations to protect and promote human rights. In particular, we explicitly

recognize the principle of non-discrimination as it relates to the right to electoral

participation, enunciated in the UDHR and ICCPR.” As the Court has recognized the

LGBT’s right to electoral participation, it might also recognize other rights contained therein

and apply these principles or declarations to work or employment discrimination cases.

Victims of work or employment discrimination due to sexual or gender orientation may use

these principles to enforce their rights. The Court has not yet adopted or provided a definite

precedence declaring the rights of LGBT people in employment discrimination cases.

Under the U.S. jurisprudence, while the state is not permitted to discriminate against

homosexuals, private individuals cannot be compelled to accept or condone homosexual

conduct as a legitimate form of behavior. In Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, Inc.37, the US Supreme Court discussed whether anti-

discrimination legislation operated to require the organizers of a private St. Patrick’s Day

parade to include among the marchers an Irish-American gay, lesbian, and bisexual group. 36 Toonen vs Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/199237 515 U.S. 557 (1995). Available at www.law.cornell.edu/supct/html/94-749.ZO.html

The court held that private citizens organizing a public demonstration might not be

compelled by the state to include groups that impart a message the organizers do not want to

be included in their demonstration. The court observed: "A contingent marching behind the

organization’s banner would at least bear witness to the fact that some Irish are gay, lesbian,

or bisexual, and the presence of the organized marchers would suggest their view that people

of their sexual orientations have as much claim to unqualified social acceptance as

heterosexuals. The parade’s organizers may not believe these facts about Irish sexuality to

be so, or they may object to unqualified social acceptance of gays and lesbians or have some

other reason for wishing to keep LGBT’s message out of the parade. But whatever the

reason, it boils down to the choice of a speaker not to propound a particular point of view,

and that choice is presumed to lie beyond the government’s power to control."

Under the U.S. jurisprudence, there are reasonable and allowable discrimination of

LGBT people in entering into organizations. As ruled by the U.S. Court in Boy Scouts of

America v. Dale38, the U.S. Supreme Court held that the Boy Scouts of America could not

be compelled to accept a homosexual as a scoutmaster, because "the Boy Scouts believe that

homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it

will not promote homosexual conduct as a legitimate form of behavior. When an expressive

organization is compelled to associate with a person whose views the group does not accept,

the organization’s message is undermined; the organization is understood to embrace, or at

the very least tolerate, the views of the persons linked with them. The scoutmaster’s

presence would, at the very least, force the organization to send a message, both to the youth

members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate

form of behavior.” This case, although not binding, may be persuasive and influential to be

used as a basis for discriminating the entrance and acceptance of LGBT people in the Boy

Scouts of the Philippines, Philippine National Police, and Armed Forces of the Philippines.

However, the issue has been rendered moot since the Philippine government has officially

ended, as of 2010, the ban on gays in the military. In July 2012, the Philippine Military

Academy (PMA) announced that it has welcomed openly gay and lesbian applicants into its

fold, giving them the opportunity to serve in the military. However, public displays of

38 530 U.S. 640 (2000). Available at www.law.cornell.edu/supct/html/99-699.ZS.html

affection as well as cross-dressing among gays and lesbians are prohibited in accordance

with PMA regulations.39

The decision in Ang Ladlad, which recognized an LGBT party’s equal right to

participate in the political process, is especially significant. It is the first equal protection

challenge involving LGBT rights that was upheld by the Supreme Court,

using both international law and domestic legislation.

In the case of Silverio vs Republic40, the Court denied the petitioner’s prayer for

change of name and sex in the birth certificate as the Court ruled “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, is immutable.” The Court cited Section 4 of

R.A. No. 9048,41 which provides the grounds for which change of first name may be

allowed.

The situation to change one’s name has always been premised by the courts on

judicial pronouncement that a change of name is a privilege, not a right. However, when the

person has proven the grounds in said law exist, then the change of name has to be viewed

from a rights perspective. It is definitely not just a privilege. The Court’s decision should not

be seen as a bar to LGBT people for the application of said law since case’s dismissal is

petitioner’s own fault as he miserably failed to present proof of the existence of the grounds

therein which would warrant the change of name. However, the Court did not absolutely

rule that an LGBT person cannot invoke said law for change of name. However, it is still

questionable if LGBT persons will ever be allowed by the Court to change their name under

these grounds. A person who is acquainted with LGBT persons might readily think that all

39 Philippine Star. Available at http://www.philstar.com/news-feature/2012/07/11/8265801/no-pda-cross-dressing-gay-cadets-pma. Last visited 15 March 201540 G.R. No. 174689, October 22, 200741 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;(3) The change will avoid confusion.

these grounds are present in some of them. As some LGBT persons are more publicly

identified by their colleagues of their chosen nicknames or names instead of their real names

or given nicknames by their parents. As they grow old, the LGBT’s chosen name is more

prevalently known or embedded in the persons whom he or she interacts with. Moreover,

allowing to officially change their name will greatly avoid confusion within the community.

An example would be during elections, as when the person is more known in his or her

chosen nickname that his real name or given nickname by the parents. If in the election

ballots, the printed name is his or her real name and does not contain his chosen nickname,

he or she might receive lesser votes because only a few people knew his or her nickname.

The Court, however, emphasized that “If the legislature intends to confer on a person

who has undergone sex re-assignment the privilege to change his name and sex to conform

to his reassigned sex, it has to enact legislation laying down the guidelines in turn governing

the conferment of that privilege.” This shows that our current laws do not provide a definite

status for these kinds of people. The legislature has yet to enact a law which touches on the

matter of sex re-assignment.

The Court recognizes the trouble of the LGBT people as it stated “Petitioner pleads

that ‘the 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 orientations 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 Court

may have been sympathetic to the plight of the LGBT persons, but it cannot provide

remedies for them since “what petitioner seeks involve questions of public policy to be

addressed solely by the legislature, not by the courts.”

The growing concern with regard to inequality of treatment against LGBTs is not

new in the country but the government still does not have the mechanism to address this

predicament. Even today, there is still no national statute that defines and penalizes

discrimination against LGBT in the workplace. The House of Representatives has still to

pass House Bill 110 which main purpose is to impose fines and jail time for discrimination

against LGBTs. Further, the clamor for equal treatment of the LGBT community in the field

of labor and employment could not get any louder but for some reason it has fallen on deaf

ears.

In the local level, very few cities and provinces have passed a law to penalize

discrimination against the LGBT. In fact, there are only two out of 81 provinces, and seven

out of 1637 cities and municipalities in the Philippines, which enacted ordinance for that

purpose. In a tally made by the Department of Psychology of U.P. Diliman, only 10.4% of

Filipinos reside in areas protected against discrimination while 84.8 million Filipinos reside

in areas without protection against discrimination.

Even in the absence of national legislation, some ordinances in local government

units (LGUs) mandate protection from discrimination. Quezon City passed an ordinance

banning employment-related discrimination in 2003, while anti-discrimination ordinances

(ADOs) were passed in the cities of Angeles, Cebu, Bacolod and Davao. The ADOs of these

cities, however, are not specific to LGBT people. Instead, the ordinances declare as unlawful

acts and conducts of discrimination based on sex, gender identity, sexual orientation, race,

color, descent, national or ethnic origin, and religious affiliation or beliefs, among others.42

In 2003, Quezon City implemented an employment-related anti-discrimination

ordinance.43 Unlike the encompassing Anti-Discrimination Ordinances (ADOs) of the other

cities, this ordinance is specifically made only to employment-related discrimination against

homosexuals. Therefore, employed homosexuals are the only people covered by the

ordinance. It is also important to note that the ordinance only has two sections, it does not

specifically define what acts are discriminatory, further there is no mention of the creation of

a body or commission that will ensure the implementation of this ordinance. Section 1 of the

ordinance only provides, “all discriminatory acts xxx in the matter of hiring, treatment,

promotion or dismissal xxx”. This suggests that what is discriminatory is dependent upon

what the complainant felt; if the act was offensive to his or her being. Section 2 provides the

penalty. On the other hand, in the ADOs, the discriminatory acts were specified and there

was mention of the creation of a governing body.42 UNDP, USAID (2014). Being LGBT in Asia: The Philippines Country Report.43 Ordinance No. SP-1309, S-2003, “AN ORDINANCE PROHIBITING ALL ACTS OF DISCRIMINATION DIRECTED AGAINST HOMOSEXUALS IN ANY OFFICE IN QUEZON CITY, WHETHER IN THE GOVERNMENT OR IN THE PRIVATE SECTOR, AND PROVIDING PENALTIES FOR VIOLATION THEREOF”

Nevertheless, this ordinance is effective and important as it will protect the rights of

the LGBT community members as employees which will guarantee that they be able to exert

their full capacity and cooperation as part of the nation’s workforce. They will feel more

confident in interacting with their co-workers and in their works. They will feel more

determined to excel as they will be awarded based from their achievements and efforts.

As a matter of fact, the efficacy of the ordinance is currently being tested in the case

filed by Mara La Torre. In February 2014, Mara, a transgender woman working at a call

center company in Quezon City, filed with the city’s Office of the Prosecutor a criminal

complaint against two security guards for prohibiting her to use the company’s female

restroom. The Association of Transgender People of the Philippines is backing La Torre's

complaint and has promised to monitor developments closely. Dindi Tan, political, legal,

and inter-organizational head for the group, said the case is "a good test to see if this

ordinance has teeth."44

The Cebu City Council on October 17, 2012 passed City Ordinance No. 2339. This

is landmark legislation as it is the first anti-discrimination policy in the country. Unlike the

City Ordinance of Quezon City, the Anti-Discrimination Ordinance of Cebu City is broader.

It does not cover only employment-related discrimination. Under Section 6, paragraph 3 of

the ordinance, work-related discrimination shall be subject to the provisions of the Labor

Code and other pertinent laws. In addition, it defined work-related discrimination as, “xxx

when disability, age, health status, sexual orientation, gender identity, ethnicity and religion

are induced in the criteria for hiring, promotion and dismissal of the workers, when the same

are immaterial to the nature of the work required xxx”.45

Despite being a landmark legislation, years have passed but the LGBT community

has come to realize that these ordinances are still not yet fully implemented. The

Transgender Colors Inc. has documented incidents of discrimination towards the community

44 Transgender woman barred from ladies’ room files discrimination charges. (March, 2014). Available at, http://www.gmanetwork.com/news/story/354588/news/metromanila/transgender-woman-barred-from-ladies-room-files-discrimination-charges. Last visited 15 March 2015.45 City Ordinance No. 2339, “AN ORDINANCE PROHIBITING DISCRIMINATION IN THE CITY OF CEBU ON THE BASIS OF DISABILITY, AGE, HEALTH STATUS, SEXUAL ORIENTATION AND GENDER IDENTITY, ETHNICITY AND RELIGION”

members, with most of the discriminatory acts committed against transwomen. These

incidents were documented because all these transwomen reported what they have

experienced to Transgender Colors Inc. in the hope that the existing ordinance will protect

them from the discrimination based on their gender identity. Nonetheless, there are still a lot

of unreported incidences, such as discrimination in the workplace. 46

For instance, after the council passed this ordinance, Britney, a transwoman and a

call center agent, went back to school. However, during the enrollment, the school’s Student

Affairs Office (SAO) refused Britney’s application to enroll – this is until she complies with

the university’s policies on men’s prescribed haircut. Discomfited by the terms, she decided

not to pursue finishing her education.47

Last November 18, 2012, two transwomen went out to party at a bar in Mango. They

were refused entry into the bar – and surprisingly, only after they already paid the bar’s

cover charge – because of the club’s dress code that lumps transwomen with

“crossdressers.” Also on that same night and club, two transwomen who were able to enter

the premises were reprimanded when they used the women’s toilet; they were forced to go

to the men’s toilet.  Because only two days elapsed when the Cebu City mayor signed the

ordinance, Transgender Colors Inc. wrote a letter to his office, asking for an inquiry to be

made on the matter, yet the organization has not yet receive any official response from the

mayor’s office.48 And then just last June, Diane, a call center manager, successfully enrolled

in a Law school. To her shock and dismay, however, she was belatedly reprimanded and

advised to comply with the prescribed haircut for male students or she will no longer be

allowed to enter the school. On the same note, the guard of her university reprimanded

Gabee because she was seen using the women’s toilet. As a punishment, she was forced to

surrender her ID.49

These incidents are one of the reasons why the LGBT organizations and the Cebu

City Council on October 2013, pushed for the creation of a body that will protect and

46 In Cebu, the anti-discrimination fight is not over. (October, 2013). Available at http://outragemag.com/anti-discrimination-commission-formation-urged/. Last visited 15 March 2015.47 Id.48 Id.49 Id.

monitor the welfare of LGBTs.50  There is no full implementation of the ordinance as the

creation of the said body is provided under Section 6 of City Ordinance 2339, which

provides that the body will be created one year after the passage of the ordinance. The

ordinance was passed on 2012, now it is already 2015, but a body was not created. Further,

there is a slow response from the Mayor’s office when there is an inquiry made to them. For

instance, the case of the transwoman who went to a bar and she wrote a letter to the city

government but her request was not yet acted upon.

On the other hand, Dr. Ester Concha, DSWS head, suggested that instead of passing

an ordinance creating the commission, the Implementing Rules and Regulation (IRR) of

Ordinance 2339 be submitted by the council.51

The Davao City Council enacted Ordinance No. 0417-12 which penalizes the act of

refusing employment to a job applicant or imposing onerous or additional terms or

conditions which are not imposed on another similarly situated or circumstanced, on the

basis of, among other things, sex, gender identity or sexual orientation. On the other hand,

the province of Cavite enacted a quite similar ordinance which penalizes the act refusing

employment to job applicant or imposing onerous or additional terms and conditions which

are not imposed on another similarly situated by denying or limiting access of and employee

to opportunities for promotion, transfer, training, schooling or to any other benefit which are

otherwise granted to other employees on the basis of, among other things, gender and sexual

orientation.

SUMMARY AND CONCLUSION

As a conclusion, the group found out that there is yet no national law covering

discrimination against members of the LGBT community. The group believes that this is the

main reason why a lot of LGBT members still suffer discrimination. The national law will

strengthen the idea that LGBT must be given the respect and proper treatment that they

deserve; that being part of a democracy we are entitled to live and act according to our own

50 In Cebu City, anti-discrimination body pushed. (October, 2013). Available at http://www.philstar.com/cebu-news/2013/10/24/1248845/cebu-city-anti-discrimination-body-pushed. Last visited 19 March 2015.51 Id.

principles and beliefs provided that they are not contrary to law, morals, good customs and

public policy.

Moreover, the group commends the different cities, which have for themselves

created Anti-discrimination ordinances. However, the creation of these ordinances is not

sufficient. The laws and rules espoused in these ordinances must be carried out and practiced

in order to attain the goal or purpose, for which they were passed.

Further, the group found out that the lack of any available data as regards the kind

and the extent of discrimination suffered by the LGBT community aggravates the problem.

Other than the anecdotal reports shared by different LGBT groups of their members’

experiences there are no other sources of information with regard to discrimination against

LGBT members.

Furthermore, the Philippine society has not yet fully embraced the fact that the

LGBT community is a significant part of our community and that they have proven

themselves to be worthy of respect if not admiration for they were able to contribute a lot of

things especially in the field of entertainment, science and technology and mathematics.

Finally, the group points out that the reason why a lot of LGBT members’ rights are

being violated it is because of the biases and prejudices that a lot of us still have. A lot of

people judge the worth of a person based on how the society perceives them to be or how

the society taught them to be perceived not on their capabilities, skills and strengths.

RECOMMENDATION

The group recommends that although a national statute may not totally abolish

LGBT discrimination in the workplace but passing one will act, as deterrence to would be

transgressors. Enacting a national statute against discrimination towards the LGBT would

further implement the policy under the constitution and the Labor Code for the protection to

labor.

Further, we highly recommend that the government should conduct a well-funded

study concerning the extent of discrimination suffered by the members of the LGBT

community just like what was done in the United States. In that way, the accurate data

gathered may become a useful tool in creating relevant legislations that will address the

different forms of discrimination suffered by the LGBT community.

Lastly, the group recommends that the government should conduct seminars and

lectures tackling the idea that discrimination against LGBT members is uncalled for and

does not promote solidarity among Filipinos. Proper information dissemination might be a

good start in solving this long-existing problem.