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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 Philippines 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

Sexual Orientation Discrimination in the Workplace by Emir Ozeren.


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.
2

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.
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
4

http://newsinfo.inquirer.net/642680/qc-council-approves-pro-lgbt-ordinance.
House Bill No. 634, House Bill No.1483
6
Lesbian Activism Project, a non-government organization that advocates for lesbian rights since 1990.
5

(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 groups analysis for each relevant case.

Rights of LGBT in the workplace

Article 3, P.D. 442


(Labor Code)

Special Laws,
Ordinances

Case Law

Recommendation
to DOLE and
CHR

Anecdotes gathered with regard to


discrimination in the workplace
experienced by LGBTs

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
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
resume listed an applicants leadership role in an LGBT organization, and one listed a role in
a non-LGBT organization, such as an environmental or womens rights group. The LGBT
applicant, however, was designed to be stronger in numerous ways, such as a higher Grade
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).

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 Policy 11
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
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
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).
15
http:// www.newsinfo.inquirer.net/breakingnews/nation/view/20081206-176498/CHR-vowsto-promote-gaylesbian-rights (last visited 15 February 2015).

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 mens 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 Universitys 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
parameters of social convention and that, at least for them, life is indeed an ordeal. Also, in
Ang Ladlad Party vs. COMELEC 21 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
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-lesbianrights.
20
G.R. No. 174689, October 22, 2007.
21
G.R. No. 190582, April 08, 2010.

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 ones 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 individuals
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
people. Transgender people may identify as female-to-male (FTM) or male-tofemale (MTF).29

22

http:// http://www.glaad.org/files/MediaReferenceGuide2010.pdf (last visited 15 February 2015).


Ibid.
24
Ibid.
25
Ibid.
26
Ibid.
27
Ibid.
28
Ibid.
29
Ibid.
23

DISCUSSION AND ANALYSIS


In the case of Ang Ladlad vs COMELEC 30, 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
30

G.R. No. 190582


http://en.wikipedia.org/wiki/Yogyakarta_Principles
32
Sexual Orientation, Gender Identity and International Human Rights Law: Contextualizing the Yogyakarta
Principles by Michael OFlaherty and John Fisher. Available at
http://www.asiapacificforum.net/support/issues/sexual-orientation/downloads/yogyakarta-principles/sexualorientation-gender-identity-and-international-human-rights-law-contextualising-theyogyakarta-principles-2008
31

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.
The Courts 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
33

Report of the United Nations High Commissioner for Human


http://www.ohchr.org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf

Rights.

Available

at

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
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 individuals 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 Courts 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
LGBTs right to electoral participation, it might also recognize other rights contained therein
34

539 U.S. 558 (2003). Available at https://supreme.justia.com/cases/federal/us/539/558/case.html


Human Rights Watch. Available at http://www.hrw.org/news/2003/07/01/lawrence-v-texas
36
Toonen vs Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992
35

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 antidiscrimination legislation operated to require the organizers of a private St. Patricks Day
parade to include among the marchers an Irish-American gay, lesbian, and bisexual group.
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
organizations 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 parades 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 LGBTs 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 governments 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,
37
38

515 U.S. 557 (1995). Available at www.law.cornell.edu/supct/html/94-749.ZO.html


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

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


the very least tolerate, the views of the persons linked with them. The scoutmasters
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
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 partys 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 Republic 40, the Court denied the petitioners 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 persons 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.
39

Philippine Star. Available at http://www.philstar.com/news-feature/2012/07/11/8265801/no-pda-crossdressing-gay-cadets-pma. Last visited 15 March 2015


40
G.R. No. 174689, October 22, 2007
41
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.

The situation to change ones 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 Courts decision should not
be seen as a bar to LGBT people for the application of said law since cases dismissal is
petitioners 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
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 LGBTs 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
42

UNDP, USAID (2014). Being LGBT in Asia: The Philippines Country Report.
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
43

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.
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 nations 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 citys Office of the Prosecutor a criminal
complaint against two security guards for prohibiting her to use the companys 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
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-ladiesroom-files-discrimination-charges. Last visited 15 March 2015.

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
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 schools Student
Affairs Office (SAO) refused Britneys application to enroll this is until she complies with
the universitys policies on mens 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 bars
cover charge because of the clubs 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 womens toilet; they were forced to go to the mens 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
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
46
In Cebu, the anti-discrimination fight is not over. (October, 2013). Available at http://outragemag.com/antidiscrimination-commission-formation-urged/. Last visited 15 March 2015.
47
Id.

made on the matter, yet the organization has not yet receive any official response from the
mayors 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 womens 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
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 Mayors 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
48

Id.
Id.
50
In Cebu City, anti-discrimination body pushed. (October, 2013). Available at http://www.philstar.com/cebunews/2013/10/24/1248845/cebu-city-anti-discrimination-body-pushed. Last visited 19 March 2015.
51
Id.
49

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
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.