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Wednesday, April 14, 2010

FAMILY FIX: Correction of Erroneous Gender/Sex on Birth Certificate

Today I had a walked - in - client who visited me at home. She is my first client to do so since I moved in our village almost 4 years ago. I don't really take on individual clients except for a few friends and those assigned to me by the J.Reuben Clark Law Society Philippines Chapter given the very busy corporate practice.

Anyway, the client is a very concerned mom, who is a mother of a 7-year old girl whose SEX/GENDER was erroneously entered as MALE in her Certificate of Live Birth. She is seeking to change said minor's sex / gender before she begins school and she has been looking for a lawyer for almost two months now until she met my sister-in-law Amy who suggested that she visits me.

I accepted the case.

The petition is pursuant to Article 412 of the Civil Code of the Philippines which was amended by Republic Act (R.A.) No. 9048 in so far as clerical or typographical errors are involved, to wit:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:xxx xxx xxx(3) "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. (emphasis supplied).”

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, to wit:

Rule 108, Section 2.Entries subject to cancellation or correction.- Upon good and valid grounds, the following entries in the civil register may be canceled and corrected:(a) Births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization, (k) election, loss, or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.”

Hence, the Petition under Rule 108 of the Rules of Court.

1) the mistake was an oversight not attributable to the petitioner nor the minor and something which they have no control;

2) as a mother of the MINOR, she can attest that she has given birth to a female, and she has been and still a female as of date;
3) the sex of the MINOR is female as visually seen by the birth attendant who has examined the genitals of the infant at the time of birth.
4) the medical records of the MINOR when she was one (1) day old and admitted at the the hospital indicated the SEX of the MINOR as FEMALE.
5) the X-ray film taken of the MINOR when she was one (1) day old and admitted at the hospital would readily show the female organ of the MINOR. Further, the hospital file (Case No.) indicated the SEX of the MINOR as F (which stands for FEMALE).
6) the medical records of the MINOR when she was three (3) years old and admitted indicated the following remarks “Patient delivered to a live baby girl by normal spontaneous delivery. Baby, however, brought to hospital because of difficulty of breathing”.
7)The MINOR does not have any outstanding judgments, has never been convicted of a crime, and is not involved in any pending legal actions.
8)The MINOR has been born as a “female” and that she had always identified herself as girl since childhood and has not undergone any sex/gender transformation from "male" to “female”.
9)The Petition is filed by petitioner not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making the birth records of her MINOR daughter compatible with her actual sex of being a FEMALE since a person’s sex is an essential factor in marriage and family relations, legal capacity and civil status.