Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City, Metro Manila

‘SIXTEENTH CONGRESS
First Regular Session

110

No.

Introduced by Hon. Kaka Bag-ao

EXPLANATORY NOTE

‘The equal protection clause in the Bill of Rights proscribes discrimination on the basis
of sexual orientation or any other status in the enjoyment of rights. The equal protection
clause, according to an eminent constitutionalist, “is the specific constitutional guarantee of
the Equality of the Person.” (J. Bernas, S.J., Constitutional Rights & Social Demands: Notes
and Cases, Vol. Il [1991], p. 48) This dause requires that “laws operate equally and
uniformly on all persons under similar circumstances or that all persons must be treated in
the same manner, the conditions not being different, both in the privileges conferred and
the liabilities imposed.” (J.M. Tuason and Co. vs. The Land Tenure Administration, 31 SCRA
413).

The fundamental law also declares that the State values the dignity of every human
person and guarantees full respect for human rights (Section 11, Article Il, 1987
Constitution). It also imposes on the State the duty to ensure the fundamental equality
before the law of women and men (Sec. 14, Id).

In addition, the Philippines is a signatory to numerous international agreements that
seek to ensure respect for the human rights of all persons regardless of sex, sexual
orientation or any other condition. These international human rights instruments have
consistently been interpreted by international institutions, such as the UN Human Rights
Committee and the UN Committee on Economic, Social and Cultural Rights, to include
protection against discrimination on the basis of sexual orientation. In Toonen v. Australia,
the UN Human Rights Committee interpreted Article 26 of the Intemational Covenant on
Civil and Political Rights (ICCPR), which obliges States to “guarantee to all persons equal
and effective protection against discrimination on any ground such as race, color, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status,” to include a protection against discrimination on the basis of sexual orientation. The
Committee on Economic, Social and Cultural Rights has also interpreted Article 2 of the
ICESCR to indude sexual orientation in the Covenants non-discrimination provisions.

Unfortunately, reality has still to catch up with the noble intentions of these
numerous laws and international agreements. Lesbians and gays continue to be oppressed
by the iniquitous treatment of society at large, primarily because of misconceptions and


ignorance. Sadly for our democracy, gays and lesbians are still considered second class
citizens when they try to exercise the rights to which they are rightfully entitled.

In schools, workplaces, commercial establishments, public service, police and the
military, prejudicial practices and policies based on sexual orientation and gender identity
limit the exercise and enjoyment of basic human rights and fundamental freedoms. Lesbian
or gay students, for instance, are refused admission or expelled from schools due to their
sexual orientation or gender identity. Companies block the promotion of lesbian and gay
employees due to the deeply embedded notion that homosexuality is an indication of
weakness. Laws such as the anti-vagrancy law are also abused by law enforcement agencies
to harass gay men.

There is, therefore, an urgent need to define and penalize practices that unjustly
discriminate against lesbians and gays. It should be emphasized that the list contained
herein is not exhaustive as it focuses only on the most blatant instances of discrimination.
Similar instances of discrimination should be deemed included among the prohibited
practices by analogy.

In view of the foregoing, and of the need to correct the long-standing discrimination
against lesbians and gays in Philippine society, the early passage of this bill is earnestly
urged.

3. BAG-AO
of Dinagat Islands


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Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City, Metro Manila

‘SIXTEENTH CONGRESS
First Regular Session

10

House Bill No.

Introduced by Hon. Kaka J. Bag-ao

AN ACT PROHIBITING DISCRIMINATION ON THE BASIS OF SEXUAL
ORIENTATION AND GENDER IDENTITY AND PROVIDING PENALTIES THEREFOR

Be it enacted by the Senate and the House of Representatives of the Congress assembled:

SECTION 1. Title. -- This Act shall be known and cited as the “Anti-Discrimination Act.”

SEC. 2. Declaration of policy. ~ It is the policy of the state to work actively for the
elimination of all forms of discrimination that offends the equal protection clause of the Bill
Of Rights and the State obligations under human rights instruments acceded to by the
Republic of the Philippines, particularly those discriminatory practices based on sex or sexual
orientation. Towards this end, discriminatory practices as defined herein shall be proscribed
and penalized.

SEC. 3. Definition of Terms. — For purposes of this Act, the following terms shall be defined
as follows:

a. Sexual Orientation refers to the direction of emotional sexual attraction or
conduct. This can be towards people of the same sex (homosexual orientation)
or towards people of both sexes (bisexual orientation) or towards people of the
opposite sex (heterosexual orientation)

b. Gender Identity refers to the personal sense of identity as characterized, among
others, by manners of clothing, inclinations, and behavior in relation to masculine
or feminine conventions. A person may have a male or female identity with the
physiological characteristics of the opposite sex.

Discrimination shall be understood to imply any distinction, exclusion, restriction,
or preference which is based on any ground such as sex, sexual orientation,
gender identity, whether actual or perceived, and which has the purpose or effect
of nullifying or impairing the recognition, enjoyment, or exercise by all persons of
an equal footing of all rights and freedoms.


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‘C. 4, Discriminatory practices. — It shall be unlawful for any person, natural or juridical,

(a) Deny access to public service, including military service, to any person on the basis
of sexual orientation and/or gender identity;

(b) Include sexual orientation and gender identity, as well as the disclosure of sexual
orientation, in the criteria for hiring, promotion and dismissal of workers, and in the
determination of employee compensation, training, incentives, privileges, benefits or
allowances, and other terms and conditions of employment;

This prohibition on the basis of sexual orientation and gender identity shall also
Include the contracting and engaging of services of juridical persons.

(©) Refuse admission or expel a person from educational institutions on the basis of
sexual orientation and gender identity, without prejudice to the right of educational
institutions to determine the academic qualifications of their students;

This prohibition shall include the imposition of (i) disciplinary sanctions solely on the
basis of sexual orientation and gender identity; (ii) penalties harsher that customary
primarily due to sexual orientation and gender identity; or (il) similar punishments
and prohibitions.

(d) Refuse or revoke the accreditation, formal recognition, and / or registration of any
‘organization, group, political party, institution or establishment, in educational
institutions, workplaces, communities, and other settings, solely on the basis of the
sexual orientation or gender identity of their members or of their target
constituencies;

This prohibition shail also include the prevention of and prohibitions on attempts to
organize;

(e) Deny a person access to medical and other health services open to the general
public on the basis of such person’s sexual orientation or gender identity;

(f) Deny an application for or revoke a professional license issued by the government
due to the applicant's sexual orientation or gender identity;

(g) Deny 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; There is a denial when a person is given inferior accommodations
or services;

This prohibition includes the discrimination of juridical persons solely on the basis of
the sexual orientation or gender identity of their members or of their target
constituencies;

(h) Subject or force any person to any medical or psychological examination to
determine and/or alter the person’s sexual orientation or gender identity without the
expressed approval of the person involved, except in cases where the person
involved is a minor under the age of discernment in which case prior approval of the
appropriate Family Court shall be required. In the latter case, the child shall be


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Tepresented in the proceeding by the Solicitor General or the latter's authorized
representative;

(i) Harassment by members of institutions involved in the enforcement of law and the
protection of rights, such as the Philippine National Police and the Armed Forces of
the Philippines, of any person on the basis of his or her sexual orientation or gender
Identity. Among other cases, harassment occurs when a person is arrested or
‘otherwise placed in the custody and extortion, physical or verbal abuse takes place,
regardless of whether such arrest has legal or factual basis. Harassment of juridical
persons on the basis of the sexual orientation or gender identity of their members,

;, benefactors, clients, or patrons is likewise covered by this provision.

i) Other analogous circumstances.

SEC. 5. Administrative sanctions. -- Refusal of a government official whose duty is to
investigate, prosecute or otherwise act on a complaint for a violation of this Act to perform
such a duty without a valid ground shall constitute gross negligence on the part of such
official who shall suffer the appropriate penalty under civil service laws, rules, and
regulations.

SEC. 6. Penalties. ~ (a) Persons found guilty of any of the discriminatory practices
enumerated in the preceding Section shall be penalized with a fine of not less than One
Hundred Thousand Pesos (P100,000) but not to exceed Five Hundred Thousand Pesos
(P500,000) or imprisonment of not less than one (1) year but not more than one (6) years,
‘or both at the discretion of the court. In addition, community service in terms of human
rights education to the perpetrator and exposure to the plight of the victims can be imposed
at the discretion of the court.

(b) The officials directly involved shall be liable for violations committed by
corporations, organizations, or similar entities.

SEC. 7. Separability clause. — If any provision of this Act is declared unconstitutional or
otherwise invalid, the validity of the other provisions shall not be affected thereby.

SEC. 8. Repealing clause. - All laws, decrees, orders, rules and regulations or parts
thereof inconsistent with this Act are hereby repealed or modified accordingly,

SEC. 9. Effectivity. - This Act shall take effect fifteen (15) days after its publication in the
Official Gazette or in at least two (2) newspapers of general circulation.

Approved,