The LGBTQIA++: Marginalized and powerless. Who is? And are they?

The justification for “Pride Month” hinges on the argument that the LGBTQIA++ (as unilaterally labeled by the Supreme Court, see its Memorandum dated May 12, 2023) is a “marginalized” community, hence in need of special recognition and (by implication) protection.

MARGINALIZED BUT CELEBRATED?
But is the LGBTQIA++ truly a marginalized community? As previously stated in this column (“The Supreme Court celebrates Pride Month. It shouldn’t.”; June 2 and 9, 2023), “it would be profoundly inappropriate to excuse the Supreme Court’s decision to give particular treatment to the LGBTQIA++ by classifying it as a ‘marginalized community’ because, a.) as provided for in the immediately preceding paragraphs here; b.) there is the indecipherable issue of what and who exactly makes up the LGBTQIA++ community; even setting aside the question of how the courts can determine if one is really a member of that community so as to enable the legal apportionment of rights, there are also the inherent contradictions (e.g., how can ‘L’ be said to have any commonality with ‘T,’ and what shared interests could ‘L’ and ‘G’ have vis-à-vis “B”?, and so on) that have been long ignored and needs to be addressed; then, finally, c.) how can a community that has ‘every June of the year’ set aside to celebrate it be seriously called marginalized?

“A community with likely a 2-5% share of the Philippine population, smaller than the indigenous peoples (20%) and Muslims (10%), and yet able to make universities, local government units, businesses, and even the Supreme Court itself feel obligated to pay homage to it can hardly be considered marginalized. The LGBTQIA++’s influence goes beyond the month of June: corporate policies, university courses, advertising, public parades, restaurants and churches compelled to adapt their facilities, even legislation or ordinances proposed or enacted. The LGBTQIA++ are practically extolled and celebrated every day all year round. That is not a marginalized community.”

MARGINALIZED BUT WHO EXACTLY ARE THEY?
No jurisprudence, in fact no law, recognizes the LGBTQIA++ as a “protected class.” Indigenous peoples, handicapped children, single mothers, Muslims, and even entrepreneurs have actual specific Constitutional or congressional laws that particularly recognize them and their rights. In the case of the LGBTQIA++, no law explicitly recognizes it. Not even the Safe Spaces Act refers to it. Instead, what the latter does mention is “sexual orientation.”

Yet, the term “sexual orientation” itself is questionable for legal or policy purposes because in order for it to merit the status of a “protected class” for purposes of “equal protection” clause considerations, then it becomes necessary to establish that such a “class … exhibit[s] obvious, immutable, or distinguishing characteristics that define them as a discrete group.” The LGBTQIA++ inherently cannot not satisfy that condition. (See Bowen v. Gilliard, 483 US 587, 603, 1987; quoting Massachusetts B. of Retirement v. Murgia, 427 U.S. 307, 313–14, 1976)

The American Psychological Association (APA) itself describes sexual orientation as a “range of behaviors and attractions” and reports that “research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex.” Even more tellingly, the APA also declares that “there is no consensus among scientists” on why particular orientations develop. In other words, despite extensive research already done on the LGBTQIA++, scientists still cannot conclude whether sexual orientation is determined by “genetic, hormonal, developmental, social, [or] cultural infl�ܱ�Գ����.”

That the APA cannot unconditionally provide a categorical definition of homosexuality logically prevents it from being an identifiable discernible group particularly for policy purposes. This point is confirmed by Dr. Paul McHugh, former chief of psychiatry at Johns Hopkins Medical School, as well as legal scholar Gerard Bradley:

“‘Sexual orientation’ should not be recognized as a newly protected characteristic of individuals under federal law … In contrast with other characteristics, it is neither discrete nor immutable. There is no scientific consensus on how to define sexual orientation, and the various definitions proposed by experts produce substantially different groups of people.

“Nor is there any convincing evidence that sexual orientation is biologically determined; rather, research tends to show that for some persons and perhaps for a great many, ‘sexual orientation’ is plastic and fluid; that is, it changes over time. What we do know with certainty about sexual orientation is that it is affective and behavioral — a matter of desire and/or behavior.” (see “Memo to Supreme Court: State Marriage Laws Are Constitutional,” Anderson and Schaerr, 2015)

HOW DO YOU PROVE YOU’RE LGBTQIA++?
The point is that much of what can constitute identity or orientation cannot be seen through clothing or even at skin level. And yet, by implicit recognition of the LGBTQIA++ (e.g., by the Supreme Court and even the Legal Education Board), by proposed legislation such as the SOGIE (Sexual Orientation and Gender Identity Expression) bills, and the enactment of the Safe Spaces Law we are supposed to punish individuals (e.g., employers, faculty administrators, business owners, ordinary service employees, etc.) for failing to identify a particular kind of people supposedly entitled to special legal protection.

Put another way, how does an LGBTQIA++ actually prove that discrimination has indeed taken place due to gender identity or sexual orientation (and not for any other reason), and proving that such a status of gender identity or sexual orientation did exist at the time of the supposed discrimination? No legislation or proposed legislation or jurisprudence tells us. Nothing reasonably guides us in identifying the evidence that must be presented to our courts that at the time of the supposed discrimination taking place the person making the claim is indeed a member of the LGBTQIA++ and that discrimination occurred because of someone’s sexual orientation or gender identity and not for another (justifiable) reason. This difficulty — it should be reiterated — is heightened because of the possibility that sexual orientation can unilaterally change through time.

PROTECTING THE POWERFUL?
Hence why it is no surprise that the LGBTQIA++ or “sexual orientation” have never been held by the US Supreme Court, including in Windsor (2013) and even Obergefell (2015), to be a “suspect” (i.e., “protected”) class for which “heightened scrutiny” of laws would need to be applied. On the other hand, the US Supreme Court confirmed (rightly) that “race is a suspect class and gender a quasi-suspect class (which invokes heightened scrutiny but not quite strict scrutiny).”

Nevertheless, this also has to be considered: even assuming that the LGBTQIA++ are identifiable and even assuming that the LGBTQIA++ should be classified as a “protected” class, what Philippine law or policy actually and expressly discriminates against them? Even marriage laws (i.e., the Family Code) does not discriminate on the basis of sexual orientation. The members of the LGBTQIA++, like any individual, are all protected under the same constitutional rights as everyone else. That is why this “honoring” by government offices and politicians of the LGBTQIA++ by way of urging Pride Month on everyone is not “equality,” it is privilege.

To be a “‘protected class” under equal protection jurisprudence, a group must be “politically powerless in the sense that they have no ability to attract the attention of the lawmakers.” Yet, as chief Justice John Roberts pointed out during oral arguments in Windsor (Memo to the Supreme Court) and of which the same observation can be made in the Philippines, “‘political figures are falling over themselves’ to support gay marriage. Indeed, support for same-sex marriage and for LGBT (lesbian, gay, bisexual, and transgender) non-discrimination laws has been embraced by the President of the United States and the Democratic Party — the largest political party in the nation.”

EQUALITY, NOT PRIVILEGE.
In sum, there are inherent and logical difficulties in identifying who exactly are the members of the LGBTQIA++ that can appropriately make them the subject of additional and special legal protection. And even if such can be done, to portray them as a “marginalized” community, deprived of “equality” and thus in need of additional protection over and above that provided by the Constitution and our laws, is not supported by law, jurisprudence, reason, and facts.

Jemy Gatdula is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence

Twitter�� @jemygatdula