Sunday, February 20, 2011

Philippine Anti-Discrimination Bill: Necessary and Long Overdue

This post is partially in response to the following comment posted by ''Gary45.''  Since I was already planning to write about the anti-discrimination bill, I'll use this comment as my starting point:
"You said: "Gay rights are non-existent in the Philippines".  Really?  Are gays not Filipino citizens?  Our Constitution already guarantees respect for human rights (section 11), the rights of workers (section 18), equal access to public services (section 26), equal employment opportunities for all (section 3 article XII), and even against threats on libel, slander and sexual harassment in the Penal Code.  Merit is the basis for employment.  Education, work record, experience, performance.  If a gay is fired for wearing too much lipstick he/she (?) can make a complaint to DOLE or DOJ.  New laws and more laws aren't necessary when we already have laws for this and that, regardless of the implications to religious liberty. ..."
Excellent comment and excellent point.  Your insensitivity on the matter, however, is disappointing.  It's unfortunate that you refer to gay men as "he/she."  It is also highly unlikely that a gay man would be fired for wearing lipstick since gay men don't wear lipstick.  Some male-to-female transgenders do, however, so perhaps they are the ones to whom you are referring.

The proposed Anti-Discrimination Bill pending in Philippine Congress (House Bill 1483), is an extremely important piece of legislation.  At first glance, the points raised in the above comment may make it seem that such a bill is unnecessary.  In a perfect world that may be true, but the last time I checked Earth isn't perfect and neither is humanity, which is why the majority of democratic countries today have some form of anti-discrimination law protecting their LGBT citizens.

According to the Preamble of the Philippine Constitution, the very purpose of government is to protect each and every individual's right to justice, peace, liberty, and equality.  Furthermore, the Equal Protection Clause, which is borrowed almost directly from the U.S. Constitution, expressly prohibits discrimination and requires that laws operate equally and uniformly for all persons under similar circumstances.  Coincidentally, equal protection clauses (most democratic countries have them in their constitutions) are the usual basis by which courts have determined that same-sex couples must be given the same rights as opposite-sex couples.

The things Gary points out in his comment concerning workers' rights, employment opportunities, merit, etc., are all true, but then reality steps in and things get lost in translation.  The existing laws are what are known as blanket regulations:  they cover things broadly, in entirely general terms, and they avoid specifics.  While there are a whole slew of laws, mechanisms, and institutions to help protect the rights of women, for example, LGBT rights are only covered by generalities.

If merit alone is the basis of employment, as Gary implies, then there should be no need to enumerate sex, race, or religion in protection regulations, yet those classifications remain explicitly named as being protected in the workplace in most countries.  If one would try to argue against hiring a woman in a sex discrimination case, they would fail miserably because a court could point to the specific laws which names sex as being protected.  There is no wiggle room; it is clearly codified.

If it's not Specifically Listed, I don't have to do it...

There is a common misunderstanding of the at-will paradigm that exists in many countries, including the Philippines.  The at-will paradigm states that an employer can fire or refuse to hire someone for any reason (that is his or her “right” as the boss)...except for the articulated prohibited reasons.  I or anyone else could easily argue that religion should be stripped out of protected class status.  After all, if employment is merit-based, religious groups shouldn't expect "special" treatment either.  (Of course I do not advocate this, however.  I'm simply using religion here as an example to make a point.)

Discrimination has always been a major and serious issue the world over, even in fiercely democratic nations that constitutionally extol the virtues of equality, liberty, and justice.  The United States can be used as an example here.

No one could argue that the US constitution is a sexist, racist, or bigoted document -- it is the absolute opposite.  Nevertheless, even though it states in perfectly clear wording that "All men are created equal," white Americans owned black Americans as slaves for the first 89 years of its nationhood, not to mention the preceding 150 years before the U.S. broke away from Great Britain.  Even after slavery was outlawed black Americans were treated as second class citizens in the southern states, segregated in housing, education, the workplace and the military, and not allowed to vote.  It was the specific Civil Rights Act of 1964 that enumerated the rights of African Americans, ensured those rights, and enforced them.  Did they already have those rights as Americans?  Technically yes, but the general laws needed to be specified.

All over the world women were kept from voting because of "moral and religious" reasons up through the early 1900s.  Women had to fight for decades to win their right to vote and hold public office, and it then had to be guaranteed by specific laws for the protection of women's rights.  Universal suffrage came to most of Western Europe in the 1910s, to America in 1920, and finally came to the Philippines, too, in 1937.  Later came the issue of women in the workplace, and specific laws needed to be enacted to safeguard the rights of women to seek and maintain employment without discrimination, even though they "already had" those rights by virtue of being citizens.

In my country, our Anti-Discrimination Act is comprehensive, ensuring equality for 15 suspect classes.  It is explicitly illegal to discriminate in any way on the basis of gender, pregnancy, leave of absence due to child-birth or adoption, ethnicity/skin color/nation of birth, sexual orientation, gender identity and gender expression, health (including those who are HIV-positive), religion, belief system, disability, age, political views, appearance, marital status, and socioeconomic status.  Were the rights of all these groups already granted under the Norwegian Constitution?  Absolutely, but the generalities left wiggle room for certain discriminatory practices, and they needed to be set right with specifics.

In earlier decades, civil rights legislation had a huge effect on racial bigotry in many countries, the same as women's rights legislation had on sexism.  One-hundred years ago the vast majority of societies held that women were to merely obey their husbands, stay at home, cook, clean, and raise babies.  Look how far we've come since then, thanks to laws against gender discrimination.  Likewise, the long range effects of including sexual orientation and gender identity in legislation significantly reduces homophobia and transphobia within a country.  This isn't hard to see in countries that have had anti-discrimination laws in place for some time now.

Hardships and Little Recourse

Currently, LGBT employees in the Philippines are unable to find solid protection in the courts because sexual orientation is not considered a suspect class by either the court system or the national government.  Many Filipinos feel that homosexuality and transgenderism are perversions, mental lapses, or strange lifestyle choices.  As such if Filipino LGBTs would happen to sue for their rights, the traditionally conservative Philippine court system would likely mention that:  1) LGBTs are not a suspect class under Philippine law, and 2) the at-will paradigm protects the rights of employers to hire or fire whomever they wish (except in cases of gender).

According to a study published by the Williams Institute at the UCLA School of Law, reports of discrimination based on sexual orientation and gender identity are roughly equal to those on race or gender.  Psychological associations the world over also state that there is significant discrimination against homosexuals and transgenders in the workplace and schools.

LGBTs are routinely subjected to insults, scorn, and judgmental remarks on a regular basis.  A transgender Filipina friend of mine even told me of how she was made fun of during a job interview and asked inappropriate questions such as "What are you?"  Her skills and work experiences counted for nothing -- the employer merely judged her on her appearance, and on his own prejudice and ignorance of gender identity.  Others have been denied housing, and many experience discrimination even when accessing basic health care.  Gary mentions that they can simply file a complaint with DOLE or DOJ, but he overlooks the fact that when many LGBTs file complaints, most of the time they’re dismissed or not taken seriously.  Some transgender Filipinas I've spoken to have even been openly mocked and insulted when they have tried to file abuse complaints at local police stations.

Such disgraceful situations aren't confined to the Philippines, of course.  Other countries have had to confront these imbalances as well, and have been successful in doing so.  How?  Through specific anti-discrimination protections.

When prejudice and discrimination are nested in a society, especially within the halls of government, specific laws are needed.

Not About Morality

Laws are not about morality, but are, in a democracy, the primary social mediator of relations between people.  This keeps social transactions as orderly and just as possible in public settings.  We have social obligations to follow laws:  we have to stop at red lights; we cannot steal goods; and we must treat people as fairly as possible in public settings (primarily employment, housing, and public accommodation). 

If everyone disobeyed laws just because they felt they violated their personal beliefs, there would be no order or justness to social transactions.  Yes, laws often have discriminated against certain groups, e.g. the Dread Scott case in the U.S., but democratic constitutions survive because they set up ways to remedy injustices in the face of opposing "morality."  Certain religious persons believe homosexuality to be immoral, however these beliefs should have nothing to do with how LGBT individuals -- or people with different colored skin, or women, or the elderly, or Muslims -- should be treated in public settings.

The ultimate question regarding the proposed Anti-Discrimination Bill is:  do LGBT individuals need to be added as a protected class in Philippine law?  Most definitely.  These groups need to be specifically protected to remedy disorderly and unjust social transactions in public settings, regardless of individuals' moral beliefs.

Bear in mind that the "beliefs" argument goes both ways.  Say, for example, that I don't like Baptists and I don't want to have a Baptist working in my company.  It infringes on my rights and beliefs as a business owner that I should be forced to hire a Baptist if I don't want to.  Should I be able to do that?  Absolutely not.  "But that's different," you may say, "religion isn't the same as being gay.''

I have actually had that argument posed to me in the Philippines, when a Baptist theology student said to me:  ''Women are born women, of course they should be protected.  An African is born an African, of course he should be protected.  But gays aren't born gay, so they cannot and should not be a protected class.''

I asked him, ''You're a Baptist, right?''  ''Yes I am,'' he replied.  So I asked, ''Were you born a Baptist?''  He answered that he had been born into a Baptist home to Baptist parents, but that he made a decision on his own to be baptized and be a member of the Baptist Church.  ''So since you weren't born a Baptist,'' I asked, ''should that give me or anyone else the right to discriminate against you because you made a decision to be a Baptist?''  He thought for a second, then said, ''Well, no, sir.''

It's interesting how social conservatives claim that homosexuality is a choice and that, because they think it's merely a personal decision, LGBTs shouldn't be protected against discrimination the way that gender, race, and religion are.  For some reason they fail to see the fact that religion is itself a choice.  Their beliefs are protected against discrimination, even though they could change their beliefs at will.  So I say, if you don't want to include LGBTs in anti-discrimination laws you must also be willing to give up the protection of your religiousness.  Otherwise your argument is hollow.

Does the Bill Go Far Enough?

In my opinion as a European looking at House Bill 1483, I absolutely applaud it for its breadth of coverage.  It is a very well written bill and I absolutely hope that it passes as soon as possible and becomes law.  It not only addresses discrimination on the basis of sexual orientation, but also on the basis of gender identity, and would therefore offer protections to transgender Filipinos.  Another cause for praise is the bill's inclusion of harassment against LGBTs.  All told, House Bill 1483 is a very progressive piece of legislation.

The only shortfalls I noticed are that, first and foremost, there are no protections included against discriminatory or hateful speech, i.e. hate speech.  Also, there is no specific prohibition against obtaining information in connection with appointments.

The latter prohibition would simply mean that employers would not be allowed to ask applicants to provide information regarding their religious views or their stance on religious or cultural issues (such as homosexuality, same-sex marriage, abortion, and so on).  That would have been nice to see because such matters can and do come up in some job and school interviews in the Philippines, and can open a side door to discrimination if the employer/administrator doesn't approve of the applicant's personal views.  This tends to be far more common in the Philippines than one may think.

I also wish the bill were more comprehensive, including protections for not just the LGBT community, but for other marginalized and often-discriminated groups as well.  It's quite shocking to learn that the Philippines has very few discrimination policies in place, save for gender, race, and creed, as listed in Article 3 of the General Provisions of the Labor Code of the Philippines.  It was surprising for me to learn that the Philippines doesn't actually have formal laws against religious discrimination (though such has also been proposed).  But of course, since the majority of Filipinos are Catholics (including the vast majority of those in the government and courts), religious discrimination isn't exactly a problem...for the majority.  If the majority are Catholic they're not going to discriminate against other Catholics or experience discrimination themselves.  But there are Filipinos who do face religious discrimination on a regular basis, among them the sizable Muslim minority and atheists.

I think a comprehensive anti-discrimination bill enshrining protections for religious views, political views, the disabled, ethnicity, sexual orientation and gender identity, and against age discrimination would better serve the Filipino people as a whole.  Speaking of age discrimination, that was actually one of the first things I noticed about the Philippines.  You can see advertisements and signs everywhere posting for job openings, almost all of which specify age limits.  For example, ''applicants must be between the ages of 20 and 29.''  I was shocked when I saw that type of ad.  That's discriminatory and it's actually illegal in Europe, the U.S., etc.  If someone is qualified for a job, they're qualified for a job, period.  You cannot say ''sorry, you're 30, we don't want you.''

Additionally, in Western countries employers are forbidden to ask about an applicant's religious affiliation, because that can be grounds for either discrimination or favoritism, depending on whom is doing the hiring.  In the Philippines, however, religion is a common question asked on job and school application forms.

Sadly, I realize that a comprehensive anti-discrimination bill is probably a long way off for the Philippines.  But I believe that someday it can be achieved, and it should be continually pushed for until it is.  Achieving equality is tough work, and you can never let up in the fight, never stop putting pressure on your politicians, and never simply accept that things are the way they are.  Equality is always right.  Always.

Hope For a Day When We Won't Need Such Laws, But Until Then...

The reason we need to specifically protect certain classes/groups of people is because they have been historically discriminated against in society.  Everyone being equal isn't possible in a society that has an undercurrent of discrimination.  Hopefully one day these laws won't be necessary, but until a nation becomes a nation where everyone is truly treated as equals, some people need to have legal protections.

"Politics are changing, but that doesn't mean gay and lesbian Filipinos should wait, or that they should stop asking for the Equal Protection Clause to be applied to them, too."

related posts:  Anti-Discrimination = the Death of Free Speech / Freedom of Religion?  (With examples of two related court cases in Scandinavia.)
CBCP says: Uphold our rights, but no one else's 

(Comments may be posted in the field below.)


anti discrimination said... Best Blogger Tips

I was looking for information on anti-discrimination. I want to stop or at least minimize it. thanks

Jake said... Best Blogger Tips

Nice article. Thanks for writing it.
As regards religion...

there are some catholic schools here in the Philippines that post job ads that include requirements such as "must be a practicing catholic." In fact, my friend tried to apply for one post and the first question the HR asked her was "what church do you go to?" Do you think job postings like this can be considered a case of employment discrimination based on religion? Or does "discrimination" only apply to a "denial" upon application, employment, or termination on the basis of religion, regardless of whether a job applicant is aware of the religious requirement for the job? I'm not sure if the Philippine law against discrimination or the Labor Code of the Philippines covers this scenario. Or could employers simply brush this issue aside by saying that it's a management prerogative to exclude possible applicants with a different religious background? I'd be glad to hear your opinion on this. Thank you.

Erik said... Best Blogger Tips

@ Jake:
Apologies for not replying sooner. I have been in Europe for some time.

Your questions are good ones, but they might be a bit above my pay grade to answer as I'm not an authority on Philippine law. In my understanding, in the Philippines at the present time there is little recourse for the type of discrimination you mentioned. To require that an applicant "must be a practicing Catholic" is bonafide discrimination against everyone who isn't one. To be sure, such job postings are discriminatory in accordance with modern democratic law, and if a company in Europe were to ask the type of question that your friend was asked, that company would find itself in some pretty big trouble.

This, however, is where it gets sticky. In the Philippines one could of course pursue legal action against an institution practicing such discrimination, but religious discrimination isn't officially codified in Philippine law. Therefore, your view that an employer could simply claim management prerogative, as you aptly put it, is the most likely scenario.

This, unfortunately, is the present-day situation in your country in regards to discrimination (be it religious, age, sexual orientation/identity, etc.). Without clearly stated, specific laws on the books, managers and institutions (both private and public) can continue to discriminate via this legal "wiggle room". This is the so-called at-will paradigm.

carhawlin' said... Best Blogger Tips

I always thought that people generally respected others when I was younger. But as I grew up here in Canada, I realized that almost everyone has some type of judgement against another group of some sort, so it seems. I wish everyone could be educated, so that they could understand different people. I thought Filipinos would be more accepting of different groups due to the amount of ppl that get hired out of country and have a chance to experience other cultures first hand. I wish that I could be legally married to my transgendered Filipino partner there. Why? Because if it is legally recognized, then I could come there legally as a family member. As it stands, it seems almost impossible for me to immigrate there. I don't necessarily want to live in Canada forever, as it is very expensive and I don't like the cold all the time. A relationship that seems so impossible only because of some outdated laws, which won't be changed because of people who can't separate law and human rights from religion and morality.

Miss Daisy said... Best Blogger Tips

Carhawlin' I think you should really stay in Canada because things is much better there for gays and lesbians. Filipinos are a bit tolerant but they have too much judgements behind your back. Im a trans Filipina by the way. The laws here do not protect anyone except for the straight people (much better if your Catholic too). If your partner is a trans Filipina in the PH I think you should petition for her to go to your place because you can do that there with the much better Canadian laws. I would say to you that the PH is good to visit for vacation but not the best place to stay permanent, especially if you are a gay/lesbian/trans couple. But that's just my advice!

Anonymous said... Best Blogger Tips

Not all discrimination is bad... The law provides many forms of discrimination for the good of society, such as brothers and sisters not being allowed to marry, and having age limits for drivers licenses. It's not really homophobia if we do not support special gay rights. The opposition to this legislation is sensible and compelling.

Anonymous said... Best Blogger Tips

Of course, being unjustly fired from your job is TOTALLY comparable to incest and the driving age.

Beauty said... Best Blogger Tips

Indeed Christians (esp Catholics) in this country are the ones with the special rights, and their rights infringe on everyone else. Until all people enjoy the same rights and benefits as the majority, then the heteros are the ones with the special rights. How is that equal in a free country? It's not!

We just want the same rights as the majority enjoys, nothing more, nothing less. And some day we will have them, regardless of what bigots try to do to stop it. Time is on our side.

Religious extremists always like to play the victim. If they can't keep things the exact way they want them, they say their rights are being infringed on. If they aren't allowed to DENY rights to LGBTQ, then THEY are the ones being harmed, according to their own minds. Insanity!

YES to anti discrimination bill! We obviously need it badly!

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