We wish that the Supreme Court could have recognized that this law only targets a specific portion of the community.”

MANILA – The Supreme Court (SC) said that the concealment of ones’ homosexuality is now considered as “fraud” and a ground for annulment of marriage. 

For gender equality advocates, however, the decision left out the systemic problems LGBT people face in Philippine society. At worst, it may even be used to legitimize gender-based violence.

“There will be a chilling effect on this. We wish that the Supreme Court could have recognized that this law only targets a specific portion of the community,” said lawyer Elj Bernardo, executive director of the LGBT advocacy group Rainbow Rights Philippines, in an interview with Bulatlat. “The expectation for every person is to be a cisgender or straight. The societal factors on why sexual orientation might be concealed is thrown out of the window.”

The case in question

In the SC decision penned by associate justice Antonio Kho, Jr., the court declared the annulment of petitioner Jaaziel M. Salva-Roldan and respondent Lory O. Roldan on the ground of fraudulent concealment of homosexuality pursuant to Article 45(3) in relation to Article 46(4) of the Family Code of the Philippines.

“With the lies and deception, coupled by their failure to cohabit as husband and wife, it is evident that Lory merely tricked Jaaziel to marry him by making him believe that he is a heterosexual,” the court ruling stated. The decision overturned the initial ruling of the Court of Appeals (CA) that denied Jaaziel’s petition for annulment due to failure to prove by preponderance of evidence that her consent was obtained through fraud.

Lory did not confirm nor deny his sexuality before the court. However, he failed to appear despite notice for the reception of evidence, which could be his opportunity to defend himself. The only evidence that the courts obtained are: 1) The wife (Jaaziel)’s recollection that Lory admitted his homosexuality when confronted about the “bundles of magazines of male models who were either half-naked or naked” in his belongings; and 2) Testimony of Jaaziel’s father Francisco Salva, saying that Lory was “somewhat effeminate or medyo malambot,” even characterizing him as “not romantic or man enough.”

Focus on human rights, gender sensitivity

For Bernardo, the gathered pieces of evidence are not enough and conflicting with the definition of sexual orientation. “It is incorrect. From the very definition of sexual orientation, only an admission can be taken into evidence as to a person’s sexual orientation.”

Sexual orientation refers to a person’s emotional, romantic, and/or sexual attraction to others as defined in the SOGIESC Equality Bill. It encompasses a spectrum of attractions, including being attracted to people of the opposite gender/ heterosexuality, same gender/ homosexuality, or both genders/ bisexuality. 

However, human rights group Amnesty International Philippines has previously stressed that since this is a very personal component of one’ s individuality, ultimately, it is the person’s decision to decide how they identify themselves.

“Outing a person’s [sexual orientation] is a very traumatic experience, and in a way, the evidence was laid out in the decision in the case of Roldan, is kind of saying that we should be looking at things and conclude that the person is of diverse sexual orientation. It is very complicated, gender is fluid,” Bernardo said.

For a trans woman leader of LGBT group Bahaghari, Reyna Valmores Salinas, the ruling set a dangerous precedent on interpreting homosexuality under the law. 

“While it is true that couples should have the right to separate if they are incompatible, the ruling is written in such a pointless and dehumanizing manner that it only fuels the existing backward and oppressive culture against members of the LGBTQ+ community,” she said in a Facebook post.

As stated in the SC ruling: “No woman would put herself in a shameful position if the fact that she married a homosexual was not true. More so, no man would keep silent when his sexuality is being questioned thus creating disgrace in his name.”

Salinas said that the pronouncements of SC are stereotypical as it is not “shameful” to be married to a homosexual or a lesbian, and it is not “disgraceful” to be asked about one’s sexuality.

Questioning legal framework

Both gender rights leaders said that the legal framework for marriage, gender inclusion, and the family code are flawed. In a statement, the Rainbow Rights Philippines said that the Family Code of the Philippines has “obviously sexist and wildly homophobic provisions.”

Fraud is constituted, under Article 46 of Family Code, as concealment of drug addiction, habitual alcoholism, or homosexuality or lesbianism existing at the time of marriage. Bernardo said that this is problematic since homosexuality should not be considered as fraud in the first place, and it should not be aligned nor stated as equivalent to harmful behaviors formulated in the family code: drug addiction and alcoholism. 

The group also highlighted that the Family Code did not recognize the human right to divorce, leaving persons to be trapped in abusive/unhealthy marriages. They added, “Spouses had to go through ugly legal battles, as in the case of Salva-Roldan v. Roldan, where the Supreme Court was constrained to use unsupported stereotypes to justify annulment to the detriment of the LGBTQIA+ community, who may be harmed in the process.”

With this, Rainbow Rights Philippines vows to fight for passage of an inclusive no-fault divorce bill, the enactment of a civil union or a marriage equality bill in the 20th Congress. Salinas, on the other hand, presses for the passage of the SOGIESC Equality Bill and promotes inclusive and non-discriminatory language in the standard procedures of the government. 

“We believe that with the successful struggle for these human rights measures, Filipinos will finally have an opportunity to heal from the wounds inflicted by a gender-unequal society bolstered by undemocratic, unfair, sexist, and homophobic laws that discriminate against women and LGBTQIA+ people,” Rainbow Rights Philippines said.

Read: [LIST] Policies to push, review, and repeal concerning human rights in the 20th Congress

The Philippines, alongside the Vatican, is the only country in the world where divorce is illegal. Despite its approval at the House of Representatives during the 19th Congress,  the Absolute Divorce Bill is still pending in the Senate.

The push for the SOGIESC Equality Bill dates back to the early 2000s. The bill was repeatedly reintroduced since its first filing in the 14th Congress. (AMU, DAA)