A criminal love

In Europe, adultery is no longer a crime. In the United States, around 30 states have abolished their adultery laws. In October 2012, the United Nations Working Group on discrimination against women in law and in practice issued a joint statement calling on governments of the world to repeal their adultery laws because they led to discrimination and violence against women. In spite of these, in August 2013, first-time lawmaker Edcel “Grex” Lagman filed House Bill No. 2352 to amend the provision on adultery under the Revised Penal Code. HB 2352 seeks to penalize married spouses who have sexual intercourse with same-sex partners.

My Husband’s Lover bill. HB 2352 is more popularly called My Husband’s Lover bill after the title of a primetime TV show that depicts what the proposed legislation wants to address. “My Husband’s Lover” is about the life of a woman, Lally, who is married to a man, Vincent, with whom she has children. Later, the show reveals that Vincent is still emotionally and physically attracted to an old lover, another man named Eric. The show has become hugely popular, prompting the Catholic Bishops’ Conference of the Philippines to call for a morality check on the show. In defense, the show’s creators issued a statement saying that their program depicts “real-life situations.”

To be clear, marriage in the Philippines remains exclusively heterosexual. That is why HB 2352 surprised many in the lesbian, gay, bisexual and transgender (LGBT) community. In media interviews, Lagman asks LGBT Filipinos to support HB 2352. After all, he said, the measure pushes for equal rights of LGBT people and is a step toward gender equality. In the bill’s explanatory note, he qualifies this support by saying: “Although I am open and supportive of gender equality, we must not limit its concept [to] the positive side of things. Just like in a marriage, equality should be present ‘for better or for worse.’ Meaning, equality must be upheld both in the rewards and as well as in the sanctions given by the society. If the LGBT group insists on equal rights, they must also be prepared to accept and carry the burden of equal liability and responsibility. That is the essence of democracy.”

In actuality, no national law has ever been enacted to specifically protect or promote the rights of LGBT Filipinos. In fact, since 1999, attempts to pass into law an Anti-Discrimination bill that would penalize discriminatory practices toward members of the LGBT community have been repeatedly thwarted in Congress. Through the years, documented cases have accumulated showing LGBT Filipinos at the receiving end of abusive and discriminatory treatment based on their sexual orientation and gender identity in their own homes and communities, workplaces, schools and in public and private institutions and establishments. Even in places where there are local ordinances meant to protect them, LGBT Filipinos continue to experience discrimination. Not surprisingly, many LGBT rights advocates have rejected HB 2352.

Legal stigmatization of gender and sexuality. HB 2352 comes on the heels of recently passed laws that rights advocates have opposed. To the dismay of many, the Philippine government under President Aquino has enacted several laws that stigmatize gender and sexuality.

In March 2012, Republic Act No. 10158, which seeks to decriminalize vagrancy, was signed into law. Many women’s rights organizations opposed RA 10158 because of its problematic definition of vagrancy. Under RA 10158, vagrants are only prostitutes and prostitutes are only women. In August 2012, the President approved RA 10172 which allows a change in the date of birth and gender in the birth certificate in case of clerical errors. The law explicitly states, however, that change in gender will not cover those who have undergone a “sex change or sex transplant.” Transgender rights advocates protested the inclusion of the phrase sex transplant in the wording of the law because it is a nonexistent medical procedure. Its inclusion violates rules of clarity and nonambiguity, to which legislation is expected to adhere, but to no avail. In September 2012, RA 10175, also known as the Cybercrime Prevention Act of 2012, was signed into law. It has become one of the most unpopular pieces of legislation under the Aquino administration. RA 10175 criminalizes cybersex along with other online activities. The law has been assailed for its intent to curtail Internet freedom and its violation of people’s freedom of speech and expression. At least 15 petitions were filed at the Supreme Court, which has since issued a Temporary Restraining Order against RA 10175, suspending its implementation.

Lagman’s My Husband’s Lover bill, no doubt, has the potential to follow in the footsteps of these laws. It would be grossly ironic, given that the show after which it was named was presumably created to enlighten people about the real-life complexities of gender and sexuality. If passed into law, HB 2352 would be the first law in the Philippines to criminalize same-sex behavior. This would be unfortunate since the winds of change to abolish adultery in law books have already reached nearby countries. In Taiwan, women’s groups in March 2013 asked the government to abolish adultery from the Criminal Code because it is unfavorable to women. According to women’s rights advocates, Taiwan’s adultery law promotes legal discrimination and maintains pervasive gender inequality. HB 2352 would undoubtedly do the same.

This is a wake-up call then for advocates to bolster the fight for greater equality and genuine sexual and gender freedom in the Philippines.

Naomi Fontanos is a Filipino transgender rights advocate and cofounder of Gender and Development Advocates (Ganda) Filipinas, a Manila-based nonprofit committed to promote human rights in the context of development.