Ang Ladlad LGBT Party vs.

Commission
on Elections
Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 190582 April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON

REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a
mere shadow of freedom. The test of its substance is the right to differ as to things that
touch the heart of the existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette1

One unavoidable consequence of everyone having the freedom to choose is that others
may make different choices - choices we would not make for ourselves, choices we may
disapprove of, even choices that may shock or offend or anger us. However, choices are
not to be legally prohibited merely because they are different, and the right to disagree
and debate about important questions of public policy is a core value protected by our
Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for,
diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions
and demands of morality. In many cases, where moral convictions are concerned,
harmony among those theoretically opposed is an insurmountable goal. Yet herein lies
the paradox - philosophical justifications about what is moral are indispensable and yet
at the same time powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates; accommodation is better
than intransigence; reason more worthy than rhetoric. This will allow persons of diverse
viewpoints to live together, if not harmoniously, then, at least, civilly.
Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application
for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang
Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated
November 11, 20092 (the First Assailed Resolution) and December 16, 20093 (the
Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC’s refusal to accredit Ang Ladlad as
a party-list organization under Republic Act (RA) No. 7941, otherwise known as the
Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as
lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in
2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The
application for accreditation was denied on the ground that the organization had no
substantial membership base. On August 17, 2009, Ang Ladlad again filed a
Petition5 for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized
and under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity; that LGBTs are victims of exclusion, discrimination,
and violence; that because of negative societal attitudes, LGBTs are constrained to hide
their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines
enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections.6Ang Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of governance.7

On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC
(Second Division) dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino

Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged

because of their sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual

attraction to, and intimate and sexual relations with, individuals of a different gender, of
the same gender, or more than one gender."

This definition of the LGBT sector makes it crystal clear that petitioner tolerates
immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change
the natural use into that which is against nature: And likewise also the men, leaving the
natural use of the woman, burned in their lust one toward another; men with men
working that which is unseemly, and receiving in themselves that recompense of their
error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women "ye are indeed a people
transgressing beyond bounds." (7.81) "And we rained down on them a shower (of
brimstone): Then see what was the end of those who indulged in sin and crime!" (7:84)
"He said: "O my Lord! Help Thou me against people who do mischief" (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s
par. 6F: ‘Consensual partnerships or relationships by gays and lesbians who are already
of age’. It is further indicated in par. 24 of the Petition which waves for the record: ‘In
2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000
(Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or

accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code
are deemed part of the requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any
act, omission, establishment, business, condition of property, or anything else which x x
x (3) shocks, defies; or disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish
such stipulations, clauses, terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order or public policy. Art
1409 of the Civil Code provides that ‘Contracts whose cause, object or purpose is
contrary to law, morals, good customs, public order or public policy’ are inexistent and
void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as
amended, penalizes ‘Immoral doctrines, obscene publications and exhibitions and
indecent shows’ as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows.
— The penalty of prision mayor or a fine ranging from six thousand to twelve thousand
pesos, or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to

public morals;

2. (a) The authors of obscene literature, published with their knowledge in any
form; the editors publishing such literature; and the owners/operators of the
establishment selling the same;
 (b) Those who, in theaters, fairs, cinematographs or any other place,
exhibit indecent or immoral plays, scenes, acts or shows, it being
understood that the obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which are prescribed by
virtue hereof, shall include those which: (1) glorify criminals or condone
crimes; (2) serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or religion; (4) tend to
abet traffic in and use of prohibited drugs; and (5) are contrary to law,
public order, morals, good customs, established policies, lawful orders,
decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or
literature which are offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral
doctrines but likewise for not being truthful when it said that it "or any of its
nominees/party-list representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections."

Furthermore, should this Commission grant the petition, we will be exposing our youth
to an environment that does not conform to the teachings of our faith. Lehman Strauss,
a famous bible teacher and writer in the U.S.A. said in one article that "older practicing
homosexuals are a threat to the youth." As an agency of the government, ours too is the
State’s avowed duty under Section 13, Article II of the Constitution to protect our youth
from moral and spiritual degradation.8

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the
First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento,
and Armando Velasco), while three commissioners voted to deny Ang Ladlad’s Motion
for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias
R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in
his Separate Opinion, upheld the First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even
assuming that it has properly proven its under-representation and marginalization, it
cannot be said that Ladlad’s expressed sexual orientations per se would benefit the
nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list
system of electing congressional representatives is to enable Filipino citizens belonging
to marginalized and under-represented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization to
represent its constituencies, then all representative organizations would have found
themselves into the party-list race. But that is not the intention of the framers of the law.
The party-list system is not a tool to advocate tolerance and acceptance of
misunderstood persons or groups of persons. Rather, the party-list system is a tool for
the realization of aspirations of marginalized individuals whose interests are also the
nation’s - only that their interests have not been brought to the attention of the nation
because of their under representation. Until the time comes when Ladlad is able to
justify that having mixed sexual orientations and transgender identities is beneficial to
the nation, its application for accreditation under the party-list system will remain just
that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine

jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals
(LGBT) as a "special class" of individuals. x x x Significantly, it has also been held that
homosexuality is not a constitutionally protected fundamental right, and that "nothing
in the U.S. Constitution discloses a comparable intent to protect or promote the social or
legal equality of homosexual relations," as in the case of race or religion or belief.

xxxx

Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated,

there can be no denying that Ladlad constituencies are still males and females, and they
will remain either male or female protected by the same Bill of Rights that applies to all
citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious

practices. Neither is there any attempt to any particular religious group’s moral rules on
Ladlad. Rather, what are being adopted as moral parameters and precepts are generally
accepted public morals. They are possibly religious-based, but as a society, the
Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing,
such that some moral precepts espoused by said religions have sipped [sic] into society
and these are not publicly accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land.
Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those
who shall publicly expound or proclaim doctrines openly contrary to public morals." It
penalizes "immoral doctrines, obscene publications and exhibition and indecent shows."
"Ang Ladlad" apparently falls under these legal provisions. This is clear from its
Petition’s paragraph 6F: "Consensual partnerships or relationships by gays and lesbians
who are already of age’ It is further indicated in par. 24 of the Petition which waves for
the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000. Moreoever, Article 694 of the Civil Code defines "nuisance" as
any act, omission x x x or anything else x x x which shocks, defies or disregards decency
or morality x x x." These are all unlawful.10

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the
Assailed Resolutions and direct the COMELEC to grant Ang Ladlad’s application for
accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory
injunction against the COMELEC, which had previously announced that it would begin
printing the final ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its
Comment on behalf of COMELEC not later than 12:00 noon of January 11,
2010.11 Instead of filing a Comment, however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to Comment.12 Somewhat surprisingly,
the OSG later filed a Comment in support of petitioner’s application.13 Thus, in order to
give COMELEC the opportunity to fully ventilate its position, we required it to file its
own comment.14 The COMELEC, through its Law Department, filed its Comment on
February 2, 2010.15

In the meantime, due to the urgency of the petition, we issued a temporary restraining
order on January 12, 2010, effective immediately and continuing until further orders
from this Court, directing the COMELEC to cease and desist from implementing the
Assailed Resolutions.16

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to
Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-
Intervention.17 The CHR opined that the denial of Ang Ladlad’s petition on moral
grounds violated the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International Covenant on Civil and
Political Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to
intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which
motion was granted on February 2, 2010.19

The Parties’ Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion
by using religious dogma, violated the constitutional guarantees against the
establishment of religion. Petitioner also claimed that the Assailed Resolutions
contravened its constitutional rights to privacy, freedom of speech and assembly, and
equal protection of laws, as well as constituted violations of the Philippines’
international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in
denying petitioner’s application for registration since there was no basis for COMELEC’s
allegations of immorality. It also opined that LGBTs have their own special interests and
concerns which should have been recognized by the COMELEC as a separate
classification. However, insofar as the purported violations of petitioner’s freedom of
speech, expression, and assembly were concerned, the OSG maintained that there had
been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and
genuine national political agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued for the first time that the LGBT sector is not
among the sectors enumerated by the Constitution and RA 7941, and that petitioner
made untruthful statements in its petition when it alleged its national existence contrary
to actual verification reports by COMELEC’s field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the
LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated
with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said
sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals) may be
registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-
OFW Labor Party v. Commission on Elections,20 "the enumeration of marginalized and
under-represented sectors is not exclusive". The crucial element is not whether a sector
is specifically enumerated, but whether a particular organization complies with the
requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition
when it alleged that it had nationwide existence through its members and affiliate
organizations. The COMELEC claims that upon verification by its field personnel, it was
shown that "save for a few isolated places in the country, petitioner does not exist in
almost all provinces in the country."21

This argument that "petitioner made untruthful statements in its petition when it
alleged its national existence" is a new one; previously, the COMELEC claimed that
petitioner was "not being truthful when it said that it or any of its nominees/party-list
representatives have not violated or failed to comply with laws, rules, or regulations
relating to the elections." Nowhere was this ground for denial of petitioner’s
accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is
quite curious, considering that the reports of petitioner’s alleged non-existence were
already available to the COMELEC prior to the issuance of the First Assailed Resolution.
At best, this is irregular procedure; at worst, a belated afterthought, a change in
respondent’s theory, and a serious violation of petitioner’s right to procedural due
process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Ladlad’s initial petition shows that it never claimed to exist in each province of the
Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was
estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and
members around the country, and 4,044 members in its electronic discussion
group.22Ang Ladlad also represented itself to be "a national LGBT umbrella
organization with affiliates around the Philippines composed of the following LGBT
networks:"

§ Abra Gay Association

§ Aklan Butterfly Brigade (ABB) - Aklan

§ Albay Gay Association

§ Arts Center of Cabanatuan City - Nueva Ecija

§ Boys Legion - Metro Manila

§ Cagayan de Oro People Like Us (CDO PLUS)

§ Can’t Live in the Closet, Inc. (CLIC) - Metro Manila

§ Cebu Pride - Cebu City

§ Circle of Friends

§ Dipolog Gay Association - Zamboanga del Norte

§ Gay, Bisexual, & Transgender Youth Association (GABAY)

§ Gay and Lesbian Activists Network for Gender Equality (GALANG) - Metro
Manila

§ Gay Men’s Support Group (GMSG) - Metro Manila

§ Gay United for Peace and Solidarity (GUPS) - Lanao del Norte

§ Iloilo City Gay Association - Iloilo City

§ Kabulig Writer’s Group - Camarines Sur

§ Lesbian Advocates Philippines, Inc. (LEAP)

§ LUMINA - Baguio City

 § Marikina Gay Association - Metro Manila

§ Metropolitan Community Church (MCC) - Metro Manila

§ Naga City Gay Association - Naga City

§ ONE BACARDI

§ Order of St. Aelred (OSAe) - Metro Manila

§ PUP LAKAN

§ RADAR PRIDEWEAR

§ Rainbow Rights Project (R-Rights), Inc. - Metro Manila

§ San Jose del Monte Gay Association - Bulacan

§ Sining Kayumanggi Royal Family - Rizal

§ Society of Transexual Women of the Philippines (STRAP) - Metro Manila

§ Soul Jive - Antipolo, Rizal

§ The Link - Davao City

§ Tayabas Gay Association - Quezon

§ Women’s Bisexual Network - Metro Manila

§ Zamboanga Gay Association - Zamboanga City23

Since the COMELEC only searched for the names ANG LADLAD LGBT
or LADLAD LGBT, it is no surprise that they found that petitioner had no presence in
any of these regions. In fact, if COMELEC’s findings are to be believed, petitioner does
not even exist in Quezon City, which is registered as Ang Ladlad’s principal place of
business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from
COMELEC’s moral objection and the belated allegation of non-existence, nowhere in the
records has the respondent ever found/ruled that Ang Ladlad is not qualified to register
as a party-list organization under any of the requisites under RA 7941 or the guidelines
in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad’s morality,
or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof." At
bottom, what our non-establishment clause calls for is "government neutrality in
religious matters."24 Clearly, "governmental reliance on religious justification is
inconsistent with this policy of neutrality."25 We thus find that it was grave violation of
the non-establishment clause for the COMELEC to utilize the Bible and the Koran to
justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should
depend, instead, on whether the COMELEC is able to advance some justification for its
rulings beyond mere conformity to religious doctrine. Otherwise stated, government
must act for secular purposes and in ways that have primarily secular effects. As we held
in Estrada v. Escritor:26

x x x The morality referred to in the law is public and necessarily secular, not religious as
the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public
debate may influence the civil public order but public moral disputes may be resolved
only on grounds articulable in secular terms." Otherwise, if government relies upon
religious beliefs in formulating public policies and morals, the resulting policies and
morals would require conformity to what some might regard as religious programs or
agenda. The non-believers would therefore be compelled to conform to a standard of
conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary
religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens.

In other words, government action, including its proscription of immorality as

expressed in criminal law like concubinage, must have a secular purpose. That is, the
government proscribes this conduct because it is "detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human society" and not
because the conduct is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling influence on
those engaged in public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of a religion
and thus have religious opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual institutions of society
in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be
religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to pass scrutiny of the
religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine constitution's religion clauses
prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same time strive to
uphold religious liberty to the greatest extent possible within flexible constitutional
limits. Thus, although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on religion, provided it does
not offend compelling state interests.27

Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and

homosexual conduct may be religion-based, it has long been transplanted into generally
accepted public morals. The COMELEC argues:

Petitioner’s accreditation was denied not necessarily because their group consists of
LGBTs but because of the danger it poses to the people especially the youth. Once it is
recognized by the government, a sector which believes that there is nothing wrong in
having sexual relations with individuals of the same gender is a bad example. It will
bring down the standard of morals we cherish in our civilized society. Any society
without a set of moral precepts is in danger of losing its own existence.28

We are not blind to the fact that, through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult
to imagine the reasons behind this censure - religious beliefs, convictions about the
preservation of marriage, family, and procreation, even dislike or distrust of
homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the
Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore,
these "generally accepted public morals" have not been convincingly transplanted into
the realm of law.29

The Assailed Resolutions have not identified any specific overt immoral act performed
by Ang Ladlad. Even the OSG agrees that "there should have been a finding by the
COMELEC that the group’s members have committed or are committing immoral
acts."30 The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different

gender, or more than one gender, but mere attraction does not translate to immoral
acts. There is a great divide between thought and action. Reduction ad absurdum. If
immoral thoughts could be penalized, COMELEC would have its hands full of
disqualification cases against both the "straights" and the gays." Certainly this is not the
intendment of the law.31

Respondent has failed to explain what societal ills are sought to be prevented, or why
special protection is required for the youth. Neither has the COMELEC condescended to
justify its position that petitioner’s admission into the party-list system would be so
harmful as to irreparably damage the moral fabric of society. We, of course, do not
suggest that the state is wholly without authority to regulate matters concerning
morality, sexuality, and sexual relations, and we recognize that the government will and
should continue to restrict behavior considered detrimental to society. Nonetheless, we
cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate
morality on one end of an argument or another, without bothering to go through the
rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all
value. Clearly then, the bare invocation of morality will not remove an issue from our
scrutiny.

We also find the COMELEC’s reference to purported violations of our penal and civil
laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a
nuisance as "any act, omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality," the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil action, or
abatement without judicial proceedings.32 A violation of Article 201 of the Revised Penal
Code, on the other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation of laws is
not proof, and a mere blanket invocation of public morals cannot replace the institution
of civil or criminal proceedings and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list system.
The denial of Ang Ladlad’sregistration on purely moral grounds amounts more to a
statement of dislike and disapproval of homosexuals, rather than a tool to further any
substantial public interest. Respondent’s blanket justifications give rise to the inevitable
conclusion that the COMELEC targets homosexuals themselves as a class, not because
of any particular morally reprehensible act. It is this selective targeting that implicates
our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor
shall any person be denied equal protection of the laws," courts have never interpreted
the provision as an absolute prohibition on classification. "Equality," said Aristotle,
"consists in the same treatment of similar persons."33 The equal protection clause
guarantees that no person or class of persons shall be deprived of the same protection of
laws which is enjoyed by other persons or other classes in the same place and in like
circumstances.34

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the classification as long as it bears a rational
relationship to some legitimate government end.35 In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared that "[i]n our jurisdiction,
the standard of analysis of equal protection challenges x x x have followed the ‘rational
basis’ test, coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and unequivocal
breach of the Constitution."37

The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason
to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate
has expressed no such belief. No law exists to criminalize homosexual behavior or
expressions or parties about homosexual behavior. Indeed, even if we were to assume
that public opinion is as the COMELEC describes it, the asserted state interest here -
that is, moral disapproval of an unpopular minority - is not a legitimate state interest
that is sufficient to satisfy rational basis review under the equal protection clause. The
COMELEC’s differentiation, and its unsubstantiated claim that Ang Ladlad cannot
contribute to the formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender
have the same interest in participating in the party-list system on the same basis as
other political parties similarly situated. State intrusion in this case is equally
burdensome. Hence, laws of general application should apply with equal force to
LGBTs, and they deserve to participate in the party-list system on the same basis as
other marginalized and under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other
law distinguishing between heterosexuals and homosexuals under different
circumstances would similarly fail. We disagree with the OSG’s position that
homosexuals are a class in themselves for the purposes of the equal protection
clause.38 We are not prepared to single out homosexuals as a separate class meriting
special or differentiated treatment. We have not received sufficient evidence to this
effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has
merely demanded that it be recognized under the same basis as all other groups
similarly situated, and that the COMELEC made "an unwarranted and impermissible
classification not justified by the circumstances of the case."

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt
to persuade society of the validity of its position through normal democratic means. 39 It
is in the public square that deeply held convictions and differing opinions should be
distilled and deliberated upon. As we held in Estrada v. Escritor:40

In a democracy, this common agreement on political and moral ideas is distilled in the
public square. Where citizens are free, every opinion, every prejudice, every aspiration,
and every moral discernment has access to the public square where people deliberate
the order of their life together. Citizens are the bearers of opinion, including opinion
shaped by, or espousing religious belief, and these citizens have equal access to the
public square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and
decide. Majority rule is a necessary principle in this democratic governance. Thus, when
public deliberation on moral judgments is finally crystallized into law, the laws will
largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median
groups.Nevertheless, in the very act of adopting and accepting a constitution and the
limits it specifies - including protection of religious freedom "not only for a minority,
however small - not only for a majority, however large - but for each of us" - the majority
imposes upon itself a self-denying ordinance. It promises not to do what it otherwise
could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic
society, and this freedom applies not only to those that are favorably received but also to
those that offend, shock, or disturb. Any restriction imposed in this sphere must be
proportionate to the legitimate aim pursued. Absent any compelling state interest, it is
not for the COMELEC or this Court to impose its views on the populace. Otherwise
stated, the COMELEC is certainly not free to interfere with speech for no better reason
than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not
illegal in this country. It follows that both expressions concerning one’s homosexuality
and the activity of forming a political association that supports LGBT individuals are
protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming
public perception that homosexual conduct violates public morality does not justify
criminalizing same-sex conduct.41European and United Nations judicial decisions have
ruled in favor of gay rights claimants on both privacy and equality grounds, citing
general privacy and equal protection provisions in foreign and international texts. 42 To
the extent that there is much to learn from other jurisdictions that have reflected on the
issues we face here, such jurisprudence is certainly illuminating. These foreign
authorities, while not formally binding on Philippine courts, may nevertheless have
persuasive influence on the Court’s analysis.

In the area of freedom of expression, for instance, United States courts have ruled that
existing free speech doctrines protect gay and lesbian rights to expressive conduct. In
order to justify the prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by "something more than a mere desire to
avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint."43

With respect to freedom of association for the advancement of ideas and beliefs, in
Europe, with its vibrant human rights tradition, the European Court of Human Rights
(ECHR) has repeatedly stated that a political party may campaign for a change in the
law or the constitutional structures of a state if it uses legal and democratic means and
the changes it proposes are consistent with democratic principles. The ECHR has
emphasized that political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of expression
through the exercise of the right of association, even if such ideas may seem shocking or
unacceptable to the authorities or the majority of the population. 44 A political group
should not be hindered solely because it seeks to publicly debate controversial political
issues in order to find solutions capable of satisfying everyone concerned.45 Only if a
political party incites violence or puts forward policies that are incompatible with
democracy does it fall outside the protection of the freedom of association guarantee.46

We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view.
On the other hand, LGBTs and their supporters, in all likelihood, believe with equal
fervor that relationships between individuals of the same sex are morally equivalent to
heterosexual relationships. They, too, are entitled to hold and express that view.
However, as far as this Court is concerned, our democracy precludes using the religious
or moral views of one part of the community to exclude from consideration the values of
other members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights
litigants. It well may be that this Decision will only serve to highlight the discrepancy
between the rigid constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal,
reflect a clear-cut strong consensus favorable to gay rights claims and we neither
attempt nor expect to affect individual perceptions of homosexuality through this
Decision.

The OSG argues that since there has been neither prior restraint nor subsequent
punishment imposed on Ang Ladlad, and its members have not been deprived of their
right to voluntarily associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied.

[COMELEC] simply exercised its authority to review and verify the qualifications of
petitioner as a sectoral party applying to participate in the party-list system. This lawful
exercise of duty cannot be said to be a transgression of Section 4, Article III of the
Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of the
petitioner to freely take part in the conduct of elections. Their right to vote will not be
hampered by said denial. In fact, the right to vote is a constitutionally-guaranteed right
which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the
denial of Ang Ladlad’s petition has the clear and immediate effect of limiting, if not
outrightly nullifying the capacity of its members to fully and equally participate in public
life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege
subject to limitations imposed by law. x x x47

The OSG fails to recall that petitioner has, in fact, established its qualifications to
participate in the party-list system, and - as advanced by the OSG itself - the moral
objection offered by the COMELEC was not a limitation imposed by law. To the extent,
therefore, that the petitioner has been precluded, because of COMELEC’s action, from
publicly expressing its views as a political party and participating on an equal basis in
the political process with other equally-qualified party-list candidates, we find that there
has, indeed, been a transgression of petitioner’s fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt to
bring about a more just and humane world order. For individuals and groups struggling
with inadequate structural and governmental support, international human rights
norms are particularly significant, and should be effectively enforced in domestic legal
systems so that such norms may become actual, rather than ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations to protect and
promote human rights. In particular, we explicitly recognize the principle of non-
discrimination as it relates to the right to electoral participation, enunciated in the
UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general

application relating to elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically enumerated as a status or
ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee
has opined that the reference to "sex" in Article 26 should be construed to include
"sexual orientation."48 Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various
international agreements.49

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.

Likewise, the ICCPR states:

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
 (b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing the
free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
participation is elaborated by the Human Rights Committee in its General Comment No.
25 (Participation in Public Affairs and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take
part in the conduct of public affairs, the right to vote and to be elected and the right to
have access to public service. Whatever form of constitution or government is in force,
the Covenant requires States to adopt such legislative and other measures as may be
necessary to ensure that citizens have an effective opportunity to enjoy the rights it
protects. Article 25 lies at the core of democratic government based on the consent of
the people and in conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for elective
office ensures that persons entitled to vote have a free choice of candidates. Any
restrictions on the right to stand for election, such as minimum age, must be justifiable
on objective and reasonable criteria. Persons who are otherwise eligible to stand for
election should not be excluded by unreasonable or discriminatory requirements such as
education, residence or descent, or by reason of political affiliation. No person should
suffer discrimination or disadvantage of any kind because of that person's candidacy.
States parties should indicate and explain the legislative provisions which exclude any
group or category of persons from elective office.50

We stress, however, that although this Court stands willing to assume the responsibility
of giving effect to the Philippines’ international law obligations, the blanket invocation
of international law is not the panacea for all social ills. We refer now to the petitioner’s
invocation of the Yogyakarta Principles (the Application of International Human Rights
Law In Relation to Sexual Orientation and Gender Identity),51which petitioner declares
to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain
norms that are obligatory on the Philippines. There are declarations and obligations
outlined in said Principles which are not reflective of the current state of international
law, and do not find basis in any of the sources of international law enumerated under
Article 38(1) of the Statute of the International Court of Justice. 52 Petitioner has not
undertaken any objective and rigorous analysis of these alleged principles of
international law to ascertain their true status.

We also hasten to add that not everything that society - or a certain segment of society -
wants or demands is automatically a human right. This is not an arbitrary human
intervention that may be added to or subtracted from at will. It is unfortunate that much
of what passes for human rights today is a much broader context of needs that identifies
many social desires as rights in order to further claims that international law obliges
states to sanction these innovations. This has the effect of diluting real human rights,
and is a result of the notion that if "wants" are couched in "rights" language, then they
are no longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are - at best - de lege
ferenda - and do not constitute binding obligations on the Philippines. Indeed, so much
of contemporary international law is characterized by the "soft law" nomenclature, i.e.,
international law is full of principles that promote international cooperation, harmony,
and respect for human rights, most of which amount to no more than well-meaning
desires, without the support of either State practice or opinio juris.53

As a final note, we cannot help but observe that the social issues presented by this case
are emotionally charged, societal attitudes are in flux, even the psychiatric and religious
communities are divided in opinion. This Court’s role is not to impose its own view of
acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can,
uninfluenced by public opinion, and confident in the knowledge that our democracy is
resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the

Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP No.
09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed
to GRANT petitioner’s application for party-list accreditation.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice
 LUCAS P. BERSAMIN ROBERTO A. ABAD
Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE P. PEREZ

Associate Justice Associate Justice

JOSE C. MENDOZA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes
1 319 U.S. 624, 640-42 (1943).
2 Rollo, pp. 33-40.
3 Id. at 41-74.
4An Act Providing For The Election Of Party-List Representatives Through The
Party-List System, And Appropriating Funds Therefor (1995).
5 Rollo, pp. 89-101.
6 412 Phil. 308 (2001).
7Ang Ladlad outlined its platform, viz:

As a party-list organization, Ang Ladlad is willing to research, introduce,

and work for the passage into law of legislative measures under the
following platform of government:

a) introduction and support for an anti-discrimination bill that will ensure

equal rights for LGBTs in employment and civil life;

b) support for LGBT-related and LGBT-friendly businesses that will

contribute to the national economy;

c) setting up of micro-finance and livelihood projects for poor and

physically challenged LGBT Filipinos;
 d) setting up of care centers that will take care of the medical, legal,
pension, and other needs of old and abandoned LGBTs. These centers will
be set up initially in the key cities of the country; and

e) introduction and support for bills seeking the repeal of laws used to
harass and legitimize extortion against the LGBT community. Rollo, p.
100.
8 Id. at 36-39. Citations omitted. Italics and underscoring in original text.
9 Id. at 77-88.
10 Id. at 50-54. Emphasis and underscoring supplied.
11 Id. at 121.
12 Id. at 129-132.
13 Id. at 151-283.
14 Id. at 284.
15 Id. at 301-596.
16 Id. at 126.
17 Id. at 133-160.
18 Id. at 288-291.
19 Id. at 296.
20 Supra note 6.
21It appears that on September 4, 2009, the Second Division directed the various
COMELEC Regional Offices to verify the existence, status, and capacity of
petitioner. In its Comment, respondent submitted copies of various reports
stating that ANG LADLAD LGBT or LADLAD LGBT did not exist in the following
areas: Batangas (October 6, 2009); Romblon (October 6, 2009); Palawan
(October 16, 2009); Sorsogon (September 29, 2009); Cavite, Marinduque, Rizal
(October 12, 2009); Basilan, Maguindanao, Lanao del Sur, Sulu, Tawi Tawi
(October 19, 2009); Biliran, Leyte, Southern Leyte, Samar, Eastern Samar,
Northern Samar (October 19, 2009); Albay, Camarines Sur, Camarines Norte,
Catanduanes, Masbate, Sorsogon (October 25, 2009); Ilocos Sur, Ilocos Norte, La
Union, Pangasinan (October 23, 2009); North Cotabato, Sarangani, South
Cotabato, Sultan Kudarat (October 23, 2009); Aklan, Antique, Iloilo and Negros
Occidental (October 25, 2009); Bohol, Cebu, Siquijor (October 24, 2009); Negros
Oriental (October 26, 2009); Cordillera Administrative Region (October 30,
2009); Agusan del Norte, Agusan del Sur, Dinagat Islands, Surigao del Norte,
Surigao del Sur (October 26, 2009); Cagayan de Oro, Bukidnon, Camiguin,
MIsamis Oriental, Lanao del Norte (October 31, 2009); Laguna (November 2,
2009); Occidental Mindoro, Oriental Mindoro (November 13, 2009); Quezon
(November 24, 2009); Davao City, Davao del Sur, Davao del Norte, Compostela
Valley, Davao Oriental (November 19, 2009); Caloocan, Las Pinas, Makati,
Mandaluyong, Manila, Marikina, Muntinlupa, Navotas, Paranaque, Pasay, Pasig,
Pateros, Quezon City, San Juan, Taguig, Valenzuela (December 16, 2009). Rollo,
pp.323-596.
22 Id. at 96.
23 Id. at 96-97.
24 Bernas, The 1987 Constitution of the Philippines: A Commentary 346 (2009).
25Estrada v. Escritor, 455 Phil. 411 (2003), citing Smith, S., "The Rise and Fall of
Religious Freedom in Constitutional Discourse", 140 University of Pennsylvania
Law Review, 149, 160 (1991).
26 455 Phil. 411 (2003).
27 Id. at 588-589.
28 Rollo, p. 315.
29In Anonymous v. Radam, A.M. No. P-07-2333, December 19, 2007, 541 SCRA
12, citing Concerned Employee v. Mayor, A.M. No. P-02-1564, 23 November
2004, 443 SCRA 448, we ruled that immorality cannot be judged based on
personal bias, specifically those colored by particular mores. Nor should it be
grounded on "cultural" values not convincingly demonstrated to have been
recognized in the realm of public policy expressed in the Constitution and the
laws. At the same time, the constitutionally guaranteed rights (such as the right
to privacy) should be observed to the extent that they protect behavior that may
be frowned upon by the majority.
30 Rollo, pp. 178.
31 Id. at 179-180.
32 Civil Code of the Philippines, Art. 699.
33 Politics VII. 14.
34Abakada Guro Party v. Executive Secretary, G.R. No. 168056, September 1,
2005, 2005, 469 SCRA 1, 139.
35In Bernas, The 1987 Constitution of the Philippines: A Commentary 139-140
(2009), Fr. Joaquin Bernas, S.J. writes:
 For determining the reasonableness of classification, later jurisprudence
has developed three kinds of test[s] depending on the subject matter
involved. The most demanding is the strict scrutiny test which requires the
government to show that the challenged classification serves a compelling
state interest and that the classification is necessary to serve that interest.
This [case] is used in cases involving classifications based on race, national
origin, religion, alienage, denial of the right to vote, interstate migration,
access to courts, and other rights recognized as fundamental.

Next is the intermediate or middle-tier scrutiny test which requires

government to show that the challenged classification serves an important
state interest and that the classification is at least substantially related to
serving that interest. This is applied to suspect classifications like gender
or illegitimacy.

The most liberal is the minimum or rational basis scrutiny according to

which government need only show that the challenged classification is
rationally related to serving a legitimate state interest. This is the
traditional rationality test and it applies to all subjects other than those
listed above.
36 487 Phil. 531, 583 (2004).
37 Id. at 584. See also Mid-States Freight Lines v. Bates, 111 N.Y.S. 2d 568.
38 The OSG argues that "[w]hile it is true that LGBTs are immutably males and
females, and they are protected by the same Bill of Rights that applies to all
citizens alike, it cannot be denied that as a sector, LGBTs have their own special
interests and concerns." Rollo, p. 183.
39Article III, Section 4 of the Constitution provides that "[n]o law shall be passed
abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of
grievances."
40 Supra note 26.
41In Bowers v. Hardwick, 478 U.S.186 (1986), the US Supreme Courtfirst upheld
the constitutionality of a Georgiasodomy law that criminalized oral and anal
sex in private between consenting adults when applied to homosexuals.
Seventeen years later the Supreme Court directly overruled Bowers in Lawrence
v. Texas, 539 U.S. 558 (2003), holding that "Bowers was not correct when it was
decided, and it is not correct today."

In Lawrence, the US Supreme Court has held that the liberty protected by
the Constitution allows homosexual persons the right to choose to enter
into intimate relationships, whether or not said relationships were entitled
to formal or legal recognition.
Our prior cases make two propositions abundantly clear. First, the fact
that the governing majority in a State has traditionally viewed a particular
practice as immoral is not a sufficient reason for upholding a law
prohibiting the practice; neither history nor tradition could save a law
prohibiting miscegenation from constitutional attack. Second, individual
decisions by married persons, concerning the intimacies of their physical
relationship, even when not intended to produce offspring, are a form of
"liberty" protected by the Due Process Clause of the Fourteenth
Amendment. Moreover, this protection extends to intimate choices by
unmarried as well as married persons.

The present case does not involve minors. It does not involve persons who
might be injured or coerced or who are situated in relationships where
consent might not easily be refused. It does not involve public conduct or
prostitution. It does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter. The
case does involve two adults who, with full and mutual consent from each
other, engaged in sexual practices common to a homosexual lifestyle. The
petitioners are entitled to respect for their private lives. The State cannot
demean their existence or control their destiny by making their private
sexual conduct a crime. Their right to liberty under the Due Process Clause
gives them the full right to engage in their conduct without intervention of
the government. "It is a promise of the Constitution that there is a realm of
personal liberty which the government may not enter." The Texas statute
furthers no legitimate state interest which can justify its intrusion into the
personal and private life of the individual.

In similar fashion, the European Court of Human Rights has ruled that the
avowed state interest in protecting public morals did not justify
interference into private acts between homosexuals. In Norris v. Ireland,
the European Court held that laws criminalizing same-sex sexual conduct
violated the right to privacy enshrined in the European Convention.

The Government are in effect saying that the Court is precluded from
reviewing Ireland’s observance of its obligation not to exceed what is
necessary in a democratic society when the contested interference with an
Article 8 (Art. 8) right is in the interests of the "protection of morals". The
Court cannot accept such an interpretation. x x x.

x x x The present case concerns a most intimate aspect of private life.

Accordingly, there must exist particularly serious reasons before
interferences on the part of public authorities can be legitimate x x x.

x x x Although members of the public who regard homosexuality as

immoral may be shocked, offended or disturbed by the commission by
others of private homosexual acts, this cannot on its own warrant the
application of penal sanctions when it is consenting adults alone who are
involved. (Norris v. Ireland (judgment of October 26, 1988, Series A no.
 142, pp. 20-21, § 46); Marangos v. Cyprus (application no. 31106/96,
Commission's report of 3 December 1997, unpublished)).

The United Nations Human Rights Committee came to a similar

conclusion in Toonen v. Australia (Comm. No. 488/1992 U.N. GAOR
Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/c/50/D/488/1992 (1994)),
involving a complaint that Tasmanian laws criminalizing consensual sex
between adult males violated the right to privacy under Article 17 of the
International Covenant on Civil and Political Rights. The Committee held:

x x x it is undisputed that adult consensual sexual activity in private is

covered by the concept of ‘privacy’ x x x any interference with privacy must
be proportional to the end sought and be necessary in the circumstances of
any given case.
42See Toonen v. Australia, (Comm. No. 488/1992 U.N. GAOR Hum. Rts. Comm.,
50th Sess., U.N. Doc. CCPR/c/50/D/488/1992 (1994)); Dudgeon v. United
Kingdom, 45 Eur. H.R. Rep. 52 (1981) (decision by the European Court of Human
Rights, construing the European Convention on Human Rights and Fundamental
Freedoms); Norris v. Ireland, 13 Eur. Ct. H.R. 186 (1991); Modinos v. Cyprus, 16
Eur. H.R. Rep. 485 (1993). See also, L. and V. v Austria (2003-I 29; (2003) 36
EHRR 55) and S.L. v Austria (2003-I 71; (2003) 37 EHRR 39), where the
European Court considered that Austria’s differing age of consent for
heterosexual and homosexual relations was discriminatory; it ‘embodied a
predisposed bias on the part of a heterosexual majority against a homosexual
minority’, which could not ‘amount to sufficient justification for the differential
treatment any more than similar negative attitudes towards those of a different
race, origin or colour’.
43See Fricke v. Lynch, 491 F. Supp. 381 (1980) and Gay Student Services v.
Texas A&M University, 737 F. 2d 1317 (1984).
44Case of the United Macedonian Organisation Ilinden and Others v.
Bulgaria Application No. 5941/00; Judgment of January 20, 2006. Note that
in Baczkowski and Others v. Poland, Application No. 1543/06; Judgment of May
3, 2007, the ECHR unanimously ruled that the banning of an LGBT gay parade in
Warsaw was a discriminatory violation of Article 14 of the ECHR, which provides:

The enjoyment of the rights and freedoms set forth in [the] Convention
shall be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status.

It also found that banning LGBT parades violated the group’s freedom of
assembly and association. Referring to the hallmarks of a "democratic
society", the Court has attached particular importance to pluralism,
tolerance and broadmindedness. In that context, it has held that although
individual interests must on occasion be subordinated to those of a group,
 democracy does not simply mean that the views of the majority must
always prevail: a balance must be achieved which ensures the fair and
proper treatment of minorities and avoids any abuse of a dominant
position.
45Case of Freedom & Democracy Party (OZDEP) v. Turkey, Application No.
23885/94; Judgment of December 8, 1999.
46Article 11 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (European Convention) provides:

1. Everyone has the right to freedom of peaceful assembly and to freedom

of association with others, including the right to form and to join trade
unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than

such as are prescribed by law and are necessary in a democratic society in
the interests of national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others. This article shall not
prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of
the State. Convention for the Protection of Human Rights and
Fundamental Freedoms, 213 U.N.T.S. 222, entered into forceSeptember 3,
1953, as amended by Protocols Nos. 3, 5, 8, and 11 which entered into
force on September 21, 1970, December 20, 1971, January 1, 1990, and
November 1, 1998, respectively.
*Note that while the state is not permitted to discriminate against homosexuals,
private individuals cannot be compelled to accept or condone homosexual
conduct as a legitimate form of behavior. In Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc. (515 U.S. 557 (1995)), the US
Supreme Court discussed whether anti-discrimination legislation operated to
require the organizers of a private St. Patrick’s Day parade to include among the
marchers an Irish-American gay, lesbian, and bisexual group. The court held that
private citizens organizing a public demonstration may not be compelled by the
state to include groups that impart a message the organizers do not want to be
included in their demonstration. The court observed:

"[A] contingent marching behind the organization’s banner would at least bear
witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence
of the organized marchers would suggest their view that people of their sexual
orientations have as much claim to unqualified social acceptance as heterosexuals
x x x. The parade’s organizers may not believe these facts about Irish sexuality to
be so, or they may object to unqualified social acceptance of gays and lesbians or
have some other reason for wishing to keep GLIB’s message out of the parade.
But whatever the reason, it boils down to the choice of a speaker not to propound
a particular point of view, and that choice is presumed to lie beyond the
government’s power to control."

So, too, in Boy Scouts of America v. Dale (530 U.S.640[2000]), the US Supreme
Court held that the Boy Scouts of America could not be compelled to accept a
homosexual as a scoutmaster, because "the Boy Scouts believe that homosexual
conduct is inconsistent with the values it seeks to instill in its youth members; it
will not "promote homosexual conduct as a legitimate form of behavior."

When an expressive organization is compelled to associate with a person whose

views the group does not accept, the organization’s message is undermined; the
organization is understood to embrace, or at the very least tolerate, the views of
the persons linked with them. The scoutmaster’s presence "would, at the very
least, force the organization to send a message, both to the youth members and
the world, that the Boy Scouts accepts homosexual conduct as a legitimate form
of behavior."
47Rollo, pp. 197-199.
48 In Toonen v. Australia, supra note 42, the Human Rights Committee noted that
"in its view the reference to ‘sex’ in Articles 2, paragraph 2, and 26 is to be taken
as including sexual orientation."
49The Committee on Economic, Social and Cultural Rights (CESCR) has dealt
with the matter in its General Comments, the interpretative texts it issues to
explicate the full meaning of the provisions of the Covenant on Economic, Social
and Cultural Rights. In General Comments Nos. 18 of 2005 (on the right to work)
(Committee on Economic, Social and Cultural Rights, General Comment No. 18:
The right to work, E/C.12/GC/18, November 24, 2005), 15 of 2002 (on the right
to water) (Committee on Economic, Social and Cultural Rights, General
Comment No. 15: The right to water, E/C.12/2002/11, November 26, 2002) and
14 of 2000 (on the right to the highest attainable standard of health) (Committee
on Economic, Social and Cultural Rights, General Comment No. 14: The right to
the highest attainable standard of health, E/C.12/2000/4, August 14, 2000), it
has indicated that the Covenant proscribes any discrimination on the basis of,
inter-alia, sex and sexual orientation.

The Committee on the Rights of the Child (CRC) has also dealt with the
issue in a General Comment. In its General Comment No. 4 of 2003, it
stated that, "State parties have the obligation to ensure that all human
beings below 18 enjoy all the rights set forth in the Convention [on the
Rights of the Child] without discrimination (Article 2), including with
regard to ‘‘race, colour, sex, language, religion, political or other opinion,
national, ethnic or social origin, property, disability, birth or other status’’.
These grounds also cover [inter alia] sexual orientation". (Committee on
the Rights of the Child, General Comment No. 4: Adolescent health and
development in the context of the Convention on the Rights of the Child,
July 1, 2003, CRC/GC/2003/4).
 The Committee on the Elimination of Discrimination Against Women
(CEDAW), has, on a number of occasions, criticized States for
discrimination on the basis of sexual orientation. For example, it also
addressed the situation in Kyrgyzstan and recommended that, "lesbianism
be reconceptualized as a sexual orientation and that penalties for its
practice be abolished" (Concluding Observations of the Committee on the
Elimination of Discrimination Against Women regarding Kyrgyzstan,
February 5, 1999, A/54/38 at par. 128).
50 General Comment No. 25: The right to participate in public affairs, voting
rights and the right of equal access to public service (Art. 25) December 16, 1996.
CCPR/C/21/Rev.1/Add.7.
51The Yogyakarta Principles on the Application of International Human Rights
Law in relation to Sexual Orientation and Gender Identity is a set of international
principles relating to sexual orientation and gender identity, intended to address
documented evidence of abuse of rights of lesbian, gay, bisexual,
and transgender (LGBT) individuals. It contains 29 Principles adopted by human
rights practitioners and experts, together with recommendations to governments,
regional intergovernmental institutions, civil society, and the United Nations.
52One example is Principle 3 (The Right to Recognition Before the Law), which
provides:

Everyone has the right to recognition everywhere as a person

before the law. Persons of diverse sexual orientations and
gender identities shall enjoy legal capacity in all aspects of life.
Each person’s self-defined sexual orientation and gender
identity is integral to their personality and is one of the most
basic aspects of self-determination, dignity and freedom. No
one shall be forced to undergo medical procedures, including
sex reassignment surgery, sterilization or hormonal therapy, as
a requirement for legal recognition of their gender identity. No
status, such as marriage or parenthood, may be invoked as such
to prevent the legal recognition of a person’s gender identity. No
one shall be subjected to pressure to conceal, suppress or deny
their sexual orientation or gender identity.

States shall:

a) Ensure that all persons are accorded legal capacity in civil

matters, without discrimination on the basis of sexual orientation
or gender identity, and the opportunity to exercise that capacity,
including equal rights to conclude contracts, and to administer,
own, acquire (including through inheritance), manage, enjoy and
dispose of property;
 b) Take all necessary legislative, administrative and other measures
to fully respect and legally recognise each person’s self-defined
gender identity;

c) Take all necessary legislative, administrative and other measures

to ensure that procedures exist whereby all State-issued identity
papers which indicate a person’s gender/sex — including birth
certificates, passports, electoral records and other documents —
reflect the person’s profound self-defined gender identity;

d) Ensure that such procedures are efficient, fair and non-

discriminatory, and respect the dignity and privacy of the person
concerned;

e) Ensure that changes to identity documents will be recognized in

all contexts where the identification or disaggregation of persons by
gender is required by law or policy;

f) Undertake targeted programmes to provide social support for all

persons experiencing gender transitioning or reassignment.
(Emphasis ours)
53See Pharmaceutical and Health Care Association of the Philippines
v. Secretary of Health, G.R. No. 173034, October 9, 2007, 535 SCRA
265, where we explained that "soft law" does not fall into any of the
categories of international law set forth in Article 38, Chapter III of the 1946
Statute of the International Court of Justice.It is, however, an expression of non-
binding norms, principles, and practices that influence state behavior. Certain
declarations and resolutions of the UN General Assembly fall under this category.