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SOGIE – Initial Thoughts and Questions (1)

September 07, 2019 - Saturday 4:09 AM by E.R. Nartatez

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A Rappler article (‘House passes SOGIE equality bill on final reading’ by Bea Cupin) reported on the approval (3rd and final reading, September 20, 2017) of what it described as a “landmark bill," referring to "House Bill Number 4982 or An Act Prohibiting Discrimination on the Basis of Sexual Orientation or Gender Identity or Expression (SOGIE) and Providing Penalties therefore."
Central to the bill is the issue of “discrimination”; in particular, discrimination the LGBTQ+ community is said to suffer in the current situation. The bill seeks to legally codify anti-discriminatory policies to criminalize specific acts for the protection the LGBTQ+ community.
The bill includes specific penalties for violators. For example, anyone caught and convicted “discriminating against a person as defined in the bill shall be fined not less than P100,000 but not more than P500,000, or be imprisoned for less than one year but not more than 6 years or both.” Penalties may include required “community service in the form of human rights education and familiarization with and exposure to the plight of victims.”
I intend to engage the bill itself at a later date (I’m mindful of the fact that there are, at present, 13 versions of the bill!), but as of the moment let me offer my initial thoughts on the matter by brief interactions with the summary points provided by Ms. Cupin (passages in quotes are from her article). I’d like to simply express some questions that come to mind as I reflect on these points. Limitations only allow me to address a few.  
> “The SOGIE Equality Bill protects people from discriminatory acts such as:” : At the outset I’d like to be crystal clear; I consider discrimination as evil, full stop. Both Jesus’ Golden Rule and Confucius’ Silver Rule totally prohibits acts of discrimination. There’s no debate here. 
Let’s now look at what the bill considers as “discriminatory acts”:
> “Denial of access to public services” : Public services are, well, to serve the public. But this is not as simple as it appears, as the recent “Masterpiece Cakeshop v. Colorado Civil Rights Commission” case in the US shows. An engaged gay couple requested a cake specially made for their wedding. The bakery owner, a conservative Christian, said that they could purchase other goods in the bakery but declined to make the cake because he felt it was not consistent with his Christian convictions about marriage. The couple filed a complaint of discrimination. The case went as high as the Supreme Court. (See Wiki article for the complete story.) Here is a case where freedom to practice religion seems to clash with an anti-discrimination policy.

And in Canada there’s this ongoing case dubbed as the "Scrotum Waxing" case of the now famous (or infamous) Jessica Yaniv (a transwoman) who filed 16 human rights complaints against beauticians and beauty shop owners for denying him waxing services for his still intact male sexual anatomy (one was forced to close shop). The accused women defended themselves by saying that they’re only trained to bikini wax biological women, while others simply said that they’re not comfortable waxing male genitalia. Yaniv went ballistic and tweeted that these women were just “transphobic bigots that are committing a hate crime.” The case here is between a woman’s right not to give a particular kind of service (waxing male genitals) that, for personal reasons, she’s not comfortable doing, and an anti-discrimination policy. 

The concern here is that these highly controversial and very divisive cases may be replicated locally once the SOGIE bill passes into law. This shows the critical need for more carefully nuanced ironing out of the bill’s provisions to craft a version that safeguards its major concern but also avoid cases such as the aforementioned problems, where and when possible (no bill is perfect, of course). 

> “Including SOGIE as a criteria for hiring or dismissal of workers” : In general, this is a legitimate point. Say, you run a mall. You hire competent workers to manage and maintain the mall. To make SOGIE as a strict, across-the-board criteria for hiring and firing workers would, IMO, be discriminatory.  But then again, some situations present a more problematically complex dynamic. 

Let’s say you run a school (elementary and high school). As a conservative Christian, you want to reflect your faith in the school's values, like marriage as between an ‘other’ (male) and an ‘other’ (female)—heterosexual. Of course, it’s but natural for you to hire, as much as possible, teachers and staff that adhere to and share similar faith values. You welcome applicants. Then an openly gay person, having a public same-sex relationship, applies as a teacher. It’s clear that the applicant does not share the values you’re practicing and promoting in and through your school. You honestly tell the applicant that you can’t hire him due to a conflict of values between his lifestyle and the school’s conservative values.

The obvious question is the following; if SOGIE becomes law, will it then be illegal for the school owner to deny employment specifically on the grounds of the applicant’s SOGIE? Is the owner, and the school itself, at risk of being penalized for discrimination? Will this not then make illegal the running of faith-based schools promoting faith-based values that are inconsistent with SOGIE?

If this is the case, then several issues emerge: Isn’t this a case of reverse discrimination? What happens to the freedom to practice one’s religion? Will the state then favor a particular set of values, i.e., that of the LGBTQ+ community, at the expense of older, more traditional values rooted in religious faith (of the Christian religion) held by the overwhelming majority of the people? I believe this is a critically legitimate concern, and our lawmakers should carefully address this.

Again, people are to be protected from discrimination, and that very much includes the LGBTQ+ community. The SOGIE bill seeks to specifically address discrimination against LGBTQ+. However, some express serious concerns that the bill is a form of “class legislation” (giving special rights and privileges to a particular group) with some of its provisions being discriminatory of others outside the community, and therefore violates the “equal protection” clause (that all are to be equally protected and not be disadvantaged) provided for in the Constitution. 

There are those who say that indeed deeper awareness of the discrimination against the LGBTQ+ is necessary and must be adequately addressed. But they also say that the existing laws we now have are enough and adequate to address their concerns, they simply need better and more consistent implementation. Proponents of the bill disagree; they say that LGBTQ+ concerns need to be codified into law to secure the specific protection they need and demand from the state. IOW, they expect “affirmative action” from the state on behalf of the LGBTQ+. These issues involve legal questions that I’m not competent to engage in a substantive way (it’s obvious I’m not a lawyer).

IMO, our lawmakers need to do more work—more sensitive, comprehensive, and nuanced work—to craft a bill that would be fair to all. To railroad the passing of the bill due to some controversial incident (e.g., the Diez case) would neither be wise nor for the greater good. It will only create more social conflict and confusion.