SC rejects change of name and gender by reason of sex reassignment surgery

Published November 3rd, 2007 in Family and Property Law and Obiter/News.

This is a digest of Rommel Jacinto Dantes Silverio vs. Republic (G.R. No. 174689, 22 October 2007), wherein the petitioner sought to have his name in his birth certificate changed from “Rommel Jacinto” to “Mely,” and his sex from “male” to “female”, after having undergone sex reassignment surgery.

Facts: The petitioner alleged that his name was registered as “Rommel Jacinto Dantes Silverio” in his birth certificate, while 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. He also underwent sex reassignment surgery in Bangkok, Thailand. He then sought to have his name in his birth certificate changed from “Rommel Jacinto” to “Mely,” and his sex from “male” to “female.”

The petition was granted by trial court, but was reversed by the Court of Appeals. The Supreme Court affirmed the CA.

A person’s first name cannot be changed on the ground of sex reassignment

The State has an interest in the names borne by individuals and entities for purposes of identification. A change of name is a privilege, not a right. Petitions for change of name are controlled by statutes. Article 376 of the Civil Code provides that: “No person can change his name or surname without judicial authority.” 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.

In other words, the petition should have been filed with the local civil registrar concerned, assuming it could be legally done, and not with the trial court. 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.

RA 9048 now governs the change of first name, providing for the following grounds (Sec. 4) for which change of first name may be allowed:

(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.

Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. 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. 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. 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.

No law allows the change of entry in the birth certificate as to sex on the ground of sex reassignment.

Article 412 of the Civil Code provides that: “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. Section 2(c) of RA 9048 defines what a “clerical or typographical error” is:

“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.

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. 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.” 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.