//SOGIE BILL: Legislating Mutual Respect

SOGIE BILL: Legislating Mutual Respect

Much has been said about the Sexual Orientation and Gender Identity/Expression Bill. However, more often that not, the arguments end up in ad hominems and fall short in getting into the substance of the law.

Section 2 or the Declaration of Policy of said proposed law states: “…the State shall exert efforts to address all forms of discrimination, marginalization and violence on the basis of sexual orientation, or gender identity or expression…”

Penalizing discrimination and discriminatory practices towards the members of the LGBT is at the crux of this bill. Upon conviction, penalties range from a fine of P100,000 to P500,000 or imprisonment of 1 year to 6 years, or both, at the discretion of the court. Community service may also be imposed in addition to the aforementioned penalties. And if any person commits any of the crimes in the Revised Penal Code and other special laws motivated by bias, prejudice, or hate based on sex, sexual, orientation, or gender identity or expression, the same will be treated as a special aggravating circumstance and he or she shall suffer, upon conviction, the maximum penalty imposed by the applicable law.

Positive reinforcements

Noble is the intention of the proposed law. That much may be gleaned. A person who denies the existence of LGBTs is deluded and wayward.

It is in this respect that the SOGIE Bill is warranted as reflected in Sections 9, 10 and 11: to pursue initiatives and programs that seek to establish and maintain an environment free of stigma and discrimination through inclusion of SOGIE concerns in all police station activities and services, social protection programs, diversity programs and trainings, and empowering portrayal of LGBT persons in media.

Drawing the line

Discrimination is defined in Section 3 of this bill as “any distinction, exclusion, restriction, or preference which is based on any ground such as sex, sexual orientation, gender identity or expression, and which has the purpose or effect of nullifying or impairing the recognition, access to, enjoyment, or exercise by all persons on all equal footing of all rights and freedoms.”

Futhermore, Section 4 enumerates the discriminatory practices that any person, natural or juridical, may commit against a member of the LGBT community. While I do not have qualms about most of the discriminatory practices enumerated therein, I do have particular concern about Section 4(l) which states as a discriminatory practice:

“Engaging in public speech meant to shame, insult, vilify, or which tends to incite or normalize the commission of discriminatory practices against LGBTs and which acts or practices in turn, intimidate them or result in the loss of their self-esteem.”

This proviso, I believe, is right smack contradictory to our freedom of expression. To recall, the elements of freedom of expression are: (1) freedom from previous restraint or censorhip; and (2) freedom from subsequent punishment.

To illustrate, if one personally views that being gay or lesbian is wrong and expresses the same, he or she may be penalized since it may very well be viewed to incite discrimination against the LGBT. This would engender hesitation on any person to express his views for fear of being punished. Whether this viewpoint is wrong or right is not much of a significance as what is material at this point is that this provision amounts to needless restraint on our constitutionally guaranteed right as enshrined in Article III Section 4 of the Constition which states that “No law shall be passed abridging the freedom of speech, of expression,…”

Section 4(h) of the proposed law also needs to be highlighted in view of the recent comfort room fiasco involving a transgender woman. It states as a discriminatory practice:

“Denying a person access to or the use of establishments, facilities, utilities, or services including housing, open to the general public on the basis of sexual orientation or gender identity or expression.”

The way that the preceding provision is worded implies that anyone has to have access to his or her preferred facilities, utilities or services. To deny him or her that is punishable under this bill. Yes, it does say that it is for anyone since under Section 3 of the same bill: “The actual sex, sexual orientation, or gender identity or expression of the person subjected to discrimination shall not be relevant for the purpose of determining whether an act of discrimination has been committed.”

There then lies a conundrum. Under the bill, anyone can opt to use the facility that he or she wants–whether he or she actually is a member of the LGBT or not. Anyone who denies any such person, regardless of such person’s actual orientation, may be held liable. It is not hard to see how the proposed law opens these vulnerable spaces to abuse.

How is this fair? How can anyone be prevented to have a say about his or her share of personal space in such establishment, facility, utility or service? To be muted in one’s right to use any space at the pain of being dubbed discriminatory and possibly be held for a criminal offense?

The manner that the proposed law seeks to be implemented is all-encompassing. The result would be unequal protection in such a way that it seeks protection for LGBTs but undermines the safety of the rest of the citizenry. I am in no way alluding that the LGBTs are perpetrators of the horrors that a normal citizen is worried about in his or her use of facilities and spaces subject of the concern but that indiscriminating use of said facilities and spaces would open up the doors for any pernicious mind. No one wants that to happen.

This voice is not coming from a voice with what some others refer to as privilege of being straight or heterosexual nor is this a voice with contempt directed against fellow LGBTs. This is a voice of reason with a hope for better understanding. We respect you, but please, do respect us too.