Achieving Happiness

January 21, 2011

legally defining discrimination against LGBTs

Filed under: Uncategorized — Ina Alleco @ 7:57 am

This is an article I wrote for Bulatlat.com. It gave me a headache to write this because it was terrible to realize that the LGBT sector has very little means to defend its members when it comes to the law. Discrimination exists, it’s just not easy to define because those guilty of homophobia can easily dismiss their acts as ‘jokes’ and say that the victims are just being ‘overly sensitive.’
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Just because you cannot define something doesn’t mean it doesn’t exist.

This is how Oscar Atadero, regional director of the International Association of Pride Organizers (Inter-Pride) explains how difficult it has been for lesbians, gays, bisexuals and transgenders (LGBTs) to defend their legal rights against discrimination because up to the present, discrimination against members of the so-called ‘third sex’ has no legal definition.

“Laws of the land proclaim equality for men and women, but when it comes down to the specifics — when it comes down to equal treatment for LGBTs — the laws are severely lacking,” he said.

Atadero shakes his head over what he insists is a misconception that LGBTs in the country no longer face discrimination and are already accepted. “There is no genuine acceptance, only tolerance. There is still discrimination against LGBTs, but it’s insidious. It’s quite easy to deny when someone is discriminating against LGBTs with a thought, with a word, with an act: those who are homophobic can dismiss their homophobic comments or acts by saying it’s all a joke, or that the victim was merely being overly sensitive. LGBTs primarily face discrimination because of their sexual orientation and gender identity (SOGI), and the tragedy is, victims do not have an enabling environment to press complaints,” he said.

The gay rights advocate says that while there’s a whole slew of enabling laws, mechanisms and institutions that help protect women rights, LGBT rights are covered only by general laws. “This is not enough, because like I said, the discrimination we face is specifically directed against our Sogi, but local laws do not give us means to legal means to fight it,” he said.

According to Atadero, there are so many forms of discrimination against LGBTs that are not defined much less penalized under the law.

“They’re in the gray areas. Say for instance, teenaged gays and lesbians, they want to cross-dress in school. They feel uncomfortable wearing uniforms, but they’re not allowed to cross-dress because it’s against school policy, no explanations asked. Those who attempt to cross-dress (the gays wear blouses or the lesbians wear pants), they end up in the guidance office and risk being humiliated and expelled. Young LGBTs have to suppress their Sogi to survive in school and in general society; and everyone knows how important these early years are to young adults — it’s when they’re discovering themselves, but already they face barriers, unsubtly told that what they’re doing, what they are is wrong,” he said.

As for adult LGBTs, the realities of discrimination are harsher.

“There are LGBTs who find it difficult to find employment because of unwritten but all the same enforced hiring policies of companies. This is particularly true in the manufacturing sector. LGBTs are not hired because human rights resource heads think LGBTs are physically weaker, or mentally flighty,” Atadero said.

He said that he once came across a case of a gay man who was interviewed for a job, but in the middle of the interview, the HR manager told him that they had already found someone for the job. “It was all he could do to stop himself from retorting ‘Bakit mo pa ako ininterbyu kung meron na pala kayong nakuha?!’

Atadero added that there have also been cases where lesbians were hired for masculine jobs, but they were paid ‘feminine’ wages. Women workers are paid lower wages compared to their male counterparts in the manufacturing sector.

“On the whole, LGBTs go through their lives defending themselves. It’s a necessary mechanism, being always on the defensive. We are subjected to insulting, judgmental remarks even when we’re getting access to health care: imagine being told by nurses or doctors that we become ill as a result of our promiscuity! It’s like all LGBTs are alike, and we can be fit in one box. When we file complaints, most of the time they’re dismissed or not taken seriously,” he said.

A legal definition of discrimination

This lack of empowering legal measures for LGBTs is what prompted Bayan Muna lawmaker Teddy A. Casino to file HB 1483 seeking to define Sogi and what constitutes discrimination against LGBTs. His proposed measure also lays down penalties.

Casino said that while the Bill of Rights guarantees equal protection for men and women, and even as the Philippines is a signatory to international agreements on the respect for human rights of all persons regardless of any condition, including sex or sexual orientation, there’s still a wide area left to cover when it came to upholding the legal rights of members of the LGBT sector.

“The present and future realities existing in the country should not be left behind by law. The noble intentions of numerous national laws and international agreements are still wanting with respect to our compatriot LGBTs.They continue to be discriminated by society at large, primarily because of misconceptions and systemic State ignorance,” he said.

The Philippines is a signatory to declarations and agreements of international institutions, such as the United Nations Human Rights Committee (UNHRC) and the UN Committee on Economic, Social and Cultural Rights, to include protection against discrimination on the basis of sexual orientation.

The UNHRC has interpreted Article 26 of the International Covenant on Civil and Political Rights (ICCPR), which obliges States to “guarantee to all persons equal and effective protection againstdiscrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,” to include a protection against discrimination on the basis of sexual orientation. The Committee on Economic, Social and Cultural Rights has also interpreted Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to include sexual orientation in the Covenant’s non-discrimination provisions.

“Despite all this, there is no legal definition of discrimination against LGBTs,” Casino said.

Casino agreed that LGBTs often find it difficult to exercise their rights as persons, laborers, professionals, and ordinary citizens. He said that prejudicial practices and policies – mostly unstated and unwritten – based on Sogi severely limit the exercise and enjoyment of the basic rights and fundamental freedoms in schools, workplaces, commercial establishments, the civil service, even the security services,” he said.

Given this, Casino said it’s long overdue that practices that discriminate against LGBTs be given legal definition and penalized .

Atadero has already expressed full support for Casino’s bill, saying that the Philippine LGBT community should rally behind the measure and pressure lawmakers to do the same. He insisted that LGBTs do not want nor claim additional “special” or “additional rights.”

“The Bayan Muna LGBT bill only seeks to push for the the observance of the same rights as those of heterosexual persons that are denied – either by current laws or practices – basic civil, political, social and economic rights,” he said.

The Bayan Muna anti-discrimination against LGBT bill

HB 1483 has certainly made efforts to give legal defintion to the ‘invisible’, as well as laying down what makes sexual orientation and gender identity.

In the proposal , sexual orientation refers to the direction of emotional sexual attraction or conduct. This can be towards people of the same sex (homosexual orientation) or towards people of both sexes (bisexual orientation) or towards people of the opposite sex (heterosexual orientation). It is not equivalent to sexual behavior since this refers to feelings and self-concept.Persons may or may not express their sexual orientation in their behaviors.

Gender identity, in the meantime, is referred to in the bill as the personal sense of identity as characterized, among others, by manners of clothing, inclinations, and behavior in relation to masculine or feminine conventions. A person may have a male or female identity with the physiological characteristics of the opposite sex.

Finally, the legal defintion of discrimination against individual’s Sogi: descrimination implies any distinction, exclusion, restriction, or preference which is based on any ground such as sex, sexual orientation, gender identity,

whether actual or perceived and which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise by all persons of an equal footing of all rights and freedoms.

Atadero said that these definitions, if approved and passed into law, will give LGBTs better legal leverage to defend their rights.

Among the discriminatory practices defined and penalized in the Bayan Muna LGBT bill include the denial of access to public service, including military service, to any person on the basis of Sogi; the inclusion of Sogi, as well as the disclosure of sexual orientation, in the criteria for hiring, promotion and dismissal of workers, and in the determination of employee compensation, training, incentives, privileges, benefits or allowances, and other

terms and conditions of employment. The prohibition on the basis of Sogi also includes the contracting and engaging of services of juridical persons.

The measure also decries as discrimination the refusal of admission or the expelling of a person from educational institutions on the basis of Sogi without prejudice to the right of educational institutions to determine the academic qualifications of their students. It’s also discriminatory to include the imposition of disciplinary sanctions solely on the basis of Sogi, and penalties harsher than customary primarily due to Sogi.

Bayan Muna also seeks to revoke the antedeluvian laws against vagrancy which Atadero says targets gay men. It speaks against harassment by members of institutions involved in the enforcement of law and the protection of rights, such as the Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP), of any person on the basis of his or her sexual orientation or gender identity.

Among other cases, harassment occurs when a person is arrested or placed in the custody of the government institution and extortion, physical or verbal abuse takes place. It does not matter in the least whether the arrest has legal or factual basis.

Harassment of juridical persons on the basis of Sogi of their members, stockholders, benefactors, clients, or patronsare also covered in the proposal.

HB 1483 also considers it discrimination if a person is denied access to or the use of

establishments, facilities, utilities or services, including housing, that are open to the general public because of his or her Sogi. the measure also expands the meaning of ‘denial of access’ by saying that there’s denial when a person is given inferior accommodations or services.

Of course, Atadero said, it’s not enough to give legal definitions. “There should also be sanctions. The inclusion of criminal or administrative charges make HB 1438 even more serious,” he said.

The bill’s section six lays down that those found guilty of any of the discriminatory practiceswill face a fine of not less than P250,000, but not to exceed Five Hundred Thousand Pesos (P500,000) or imprisonment of not less than one) year but not more than six years, or both at the discretion of the court. Officials directly involved will be be liable for violations committed by corporations,organizations or similar entities. Finally, perpetrators will be recommended for community service time in terms of human rights educationand exposure to the plight of the victims.

Support human rights for LGBTs

While Atadero says that LGBT rights are at first glance ’emotional’ in origin (“Defending the way we are, the way we live and how we contribute to society is really an emotional struggle for someone who has just come out of the closet; even for those who are afraid to come out”), it’s also a political struggle.

“It’s all part of the fight for human rights because our defense of our Sogi is always part of our struggle for economic survival and political emancipation. Equality is not something you demand off-hand, you do it for concrete reasons because you want to find employment, you want to be able to create and learn, because you want to serve others without there being barriers. Discrimination against LGBTs is like a transparent wall: you don’t immediately see it, but when you walk into it, you get hurt. We want to remove this wall, and fully empower LGBTs not only to defend their rights, but so they can contribute more to society,” he said.

Atadero said that politicians and government officials always say they love gays because 1) Gays make them happy; 2) Gays make them beautiful, and 3) Gays are productive members of society. “But how will they give concrete form to this “love” if they won’t support gay rights and the passage of laws that will protect and uphold them?”

“It wasn’t unexpected of Bayan Muna to file such a measure in support of LGBTs. The LGBT community support its bill fully and we will campaign for its passage. Even if it doesn’t pass into law, it’s already a very good step towards the right direction in making Philippine laws more responsive to the needs of LGBT constituents.”#

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