By Fernando “Ronnie” S. Penarroyo
The Philippines prides itself as a gay-friendly nation where consensual homosexual relations, homosexuality, and transgenderism are not illegal. The country’s legislative history reached a milestone when Geraldine Roman from Bataan was elected as the first transwoman member of Congress. Meanwhile, seventy-three countries still criminalize consensual same sex relationships while only a few legally recognize the identity of transpeople and protect the rights of intersex people.
The mining industry in the Philippines has been traditionally dominated by men with its macho culture and homophobic tendencies. In the past, even women were banned from entering underground mines or working in offshore drilling rigs. I remember my days in the university when geology majors were considered campus “barakos” (studs) and effeminate students were often silently scorned if not treated as outcasts. Since we spent a lot of our academic time doing research in the field, who would want to share a tent or bunk with someone whose sexual orientation was rather ambiguous? Those with gender identity issues were thus discouraged to work in the mine sites and if there were a few, they were prevented from coming out because the industry’s culture discouraged complainants from speaking out as they may be subjected to further abuse by co-workers. For many employees, coming out may be a very affirming experience, but for those working in the mining industry, it can be really difficult.
On numerous occasions when I have been invited as resource speaker before geology and mining engineering majors in various universities all over the country, I noticed through the years that the number of students who belong to the lesbian, gay, bisexual, transgender and intersex (“LGBTI” in this article but collectively referred to as “LGBTQIAP+”) community is increasing. I often wonder if there will be a place for them in the resources industry or will they end up working in call centers and customer services. When these post-millennials join the resources industry workforce, will they have enough legal protection against discrimination based on their sexual orientation and gender identity?
Background on LGBTI Rights
Significant progress in LGBTI rights have been achieved on account of legal reforms and transformation in social attitudes despite setbacks and reversals in some countries which opted to adhere to strict religious fundamentalism. In 2000, the United Nations launched the UN Global Compact, the world’s largest corporate responsibility initiative, to encourage companies to respect universal principles and contribute to a more sustainable and inclusive global economy. The UN Guiding Principles on Business and Human Rights, endorsed by the UN Human Rights Council in June 2011, are the global standards for preventing and addressing the risk of adverse impacts on human rights linked to business activity. The UN Guiding Principles do not constitute an international instrument that creates legal obligations for companies; the corporate responsibility to respect is a norm of expected conduct based on existing international law and conventions.
In September 2017, the Office of the High Commissioner for Human Rights published a guide on tackling discrimination against LGBTI as set out in “Tackling Discrimination against Lesbian, Gay, Bi, Trans, & Intersex People: Standard of Conduct for Business.” Under the guide, companies have a responsibility to respect international human rights standards including the rights of LGBTI people, regardless of the company size, structure, sector, or location.
The standards offer practical guidance to companies on how to respect and support the rights of LGBTI people in the workplace, marketplace and community. The standards were developed in partnership with the Institute for Human Rights and Business, and built on the outcome of a series of regional consultations held in 2016 and 2017 in Mumbai, New York, Kampala and Brussels. They were designed to support companies in reviewing existing policies and practices, and establishing new ones to respect and promote the human rights of LGBTI people. They were also intended to support rights-affirming interactions between companies and a wide range of stakeholders from staff to customers, suppliers, shareholders, communities, governments, lawmakers, and trade unions.
The Five Standards
At All Times
1 RESPECT HUMAN RIGHTS. All businesses have a responsibility to respect human rights — including the rights of LGBTI people — in their operations and business relationships.
In the Workplace
2 ELIMINATE DISCRIMINATION. Employees and other people with whom the business engages are entitled to freedom from discrimination. Businesses should ensure that there is no discrimination in their recruitment, employment, working conditions, benefits, respect for privacy, or treatment of harassment.
3 PROVIDE SUPPORT. Businesses are expected to provide a positive, affirmative environment within their organization so that LGBTI employees can work with dignity and without stigma. This standard requires businesses to go beyond equal benefits and take steps to ensure inclusion, including addressing the specific workplace needs of LGBTI people.
In the Marketplace
4 PREVENT OTHER HUMAN RIGHTS VIOLATIONS. Businesses should ensure that they do not discriminate against LGBTI suppliers or distributors, or against LGBTI customers in accessing the company’s products and/or services. In their business relationships, businesses should also ensure that business partners do not discriminate.
In the Community
5 ACT IN THE PUBLIC SPHERE. Businesses are encouraged to use their leverage to contribute to stopping human rights abuses in the countries in which they operate. In doing so, they should consult closely with local communities and organizations to identify what constructive approaches businesses can take in contexts where legal frameworks and existing practices violate the human rights of LGBTI people. Such steps can include public advocacy, collective action, social dialogue, financial, and in-kind support for organizations advancing LGBTI rights and challenging the validity or implementation of abusive government actions.
LGBTI Rights in the Philippines
Article II Section 11 of the Constitution declares an existing state policy to value the dignity of every human person and to guarantee full respect for human rights. However, there is no comprehensive anti-discrimination law to date or, code of ethics or legitimate guidelines to protect the rights of LGBTI persons though there are occasional ordinances and policies at the local level.
While the Labor Code of the Philippines (1974) mandates that it is the duty of the State to afford “protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers” (Article 3) and declares it to be “unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex,” (Article 135), there is no clear reference to LGBTI rights.
Philippine laws define sex as being biologically male or female and the Supreme Court, in the absence of contrary legal definitions, follows the construction of sex as such. Republic Act (“RA”) No. 9048, “The Clerical Error Law of 2001”, as amended by RA 10172, “An Act Further Authorizing the City or Municipal Civil Registrar or the Consul General to Correct Clerical or Typographical Errors in the Day and Month in the Date of Birth or Sex of a Person Appearing in the Civil Registrar Without Need of a Judicial Order”, prohibits transsexual persons to change their first name and sex on their birth certificates, and strictly provides that:
No petition for correction of erroneous entry concerning the sex of a person shall be entertained ………… except if the petition is accompanied by a certification issued by an accredited government physician attesting to the fact that the petitioner has not undergone sex change or sex transplant.
In Republic vs. Cagandahan (G.R. No. 166676, 12 September 2008), the Supreme Court however decided in favor of changing the name and sex of an intersex person on the claims that he had Congenital Adrenal Hyperplasia, which caused him to manifest female biological characteristics. The SC held that:
Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.
The Court nevertheless denied transgender persons from legally changing their name and sex by virtue of RA 9048 Section 2 where “no correction must involve the change of nationality, age, status or sex of the petitioner”, when it ruled that “a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow.”
Sexual Orientation and Gender Identity and Expression (“SOGIE”) Equality Bill
An anti-discrimination bill is currently being deliberated in Congress to address LGBTI rights. The SOGIE Equality Bill is intended to prevent various economic and public accommodation-related acts of discrimination against people based on their sexual orientation, gender identity or expression. The current versions of the bill are sponsored by Kaka Bag-ao, Geraldine Roman, and Tom Villarin in the House of Representatives, and Risa Hontiveros in the Senate.
The version in the House of Representative (H.B. 4982) passed its final reading on 20 September 2017. On the other hand, the the Senate version (S.B.N. 1271) is still under interpolation with Senate President Vicente Sotto III, and Senators Manny Pacquiao and Joel Villanueva, opposing it on religious grounds.
The current draft includes, among others, seven (7) prohibited acts that refer to discriminative processes against the LGBTI in employment or in the labor market:
1. inclusion of SOGIE, or its disclosure in the criteria for hiring, promotion, transfer, designation, re-assignment, dismissal, performance review, training, incentives, benefits or allowances, privileges, and other terms or conditions of employment;
2. evoking or refusing the accreditation, recognition, or registration to organize in the workplace;
3. publishing information that intends to “out” or reveal the SOGIE of a person without their consent;
4. engaging in public speech that is meant to shame, insult, or normalize discrimination against LGBTIs which intimidates them;
5. subjecting persons or groups of persons to harassment in the form of unwanted conduct, or patterns of conduct, or series of acts which annoys, bullies, demeans, offends, threatens, intimidates, or creates a distressing environment for the LGBTI which is motivated by the offended party’s SOGIE, which may manifest in the form of assault, stalking, derogatory comments, lewd propositions, and may be conducted in various mediums, including but not limited to visual representation, broadcast communication, communication through mail or any telecommunication device, or through the internet;
6. subjecting any person to gender profiling, degrading investigatory searches including recording or analyzing a person to make a generalization about their SOGIE; and
7. subjecting a person to analogous acts that impairs their enjoyment, or recognition of their rights and freedoms.
However, the bill has been criticized for not clearly stating how it plans to address issues regarding benefits that heterosexual people enjoy, as well as the issue of being called for hazardous tasks, or tasks beyond official office hours. The bill also fails to address or recognize the structures of heteronormativity that assumes that the LGBTI, unlike heterosexual employees, do not have families, or partners that equally deserve their time and attention. The bill does not clearly encourage public or private organizations to allot benefits that the LGBTI may also want to claim such as parental leaves for those who have legally, or taken responsibility for other younger relatives and act as their parents, or domestic partner benefits such as insurance, and the transfer of benefits of an employee upon death to their partners.
The sponsors mentioned that the bill will not cover same-sex marriage. However, social protection is linked to marriage equality and civil partnerships, because it is through legally recognizing same-sex relationships that LGBTI workers and their partners and children become entitled to medical care, pensions, adoption rights, and parental leave and child benefits on the same terms as heterosexual couples. The bill is also silent on the the rights of the children of LGBTI persons as these children continue to experience discrimination, social stigmatization, and a general climate of intolerance and negative public attitudes. In addition, access to health services provided through workplaces also presents an obstacle for many LBGTI workers as, due to stigma, many refrain from accessing needed and critical prevention, treatment and support services.
The difficulty also lies in how discriminated workers access legal redress as the process may entail costs in the form of economic loss from the prolonged legal procedure. Even where legal protection is in place, many LGBTI workers still face considerable discrimination and harassment, leading many to conceal their sexual orientation or transfer to industries with a more tolerant working environment. Nonetheless, the passing of anti-discrimination legislation against LGBTI people in the workplace can influence the public toward greater tolerance, and support from both workers’ and employers’ organizations will lead to an effective implementation of the law.
LGBTI in Philippine Labor Market
In 2014 the UNDP and USAID came out with a report, “Being LGBT in Asia: The Philippines Country Report, A Participatory Review and Analysis of the Legal and Social Environment for Lesbian, Gay, Bisexual and Transgender (LGBT) Persons and Civil Society”, which contained a compilation and presentation of studies and documents from the Philippine National LGBTI Community dialogue held in Manila on June 2013. The report reviewed the legal and social environment that the LGBTIs face, which was discussed by fifty (50) LGBTI organizations from around the country regarding eight themes which included education, health, employment, family affairs, community, religion, media, and politics. The report noted that because of the absence of any statistics, the extent of employment related-SOGIE discrimination was hidden, and government agencies in charge of issues regarding SOGIE discrimination did not report on LGBTI discrimination. The report also mentioned how discrimination in the labor market can occur during the process of hiring, assigning wages, granting promotions and benefits, as well as with regard to retention. Dismissals also occurred based on a person’s SOGIE as companies were unwilling to destroy their reputation by hiring LGBTIs who act and present themselves according to their SOGIE.
Participants of the dialogue also reported how LGBTIs were hired in order to be abused or taken advantage of because of their unable to legally marry which leads to less benefits costs for the company in the absence of maternity or paternity leaves. LGBTI employees were also forced to take graveyard shifts or overtime work as they have no families to go home to, as well as assigning stereotypical jobs because of their gender identity. Sexual harassment on the workplace was another issue that the LGBTIs face because of their SOGIE.
To deal with issues with regards to LGBTI employment, the participants of the dialogue created a list of recommendations as follows: (1) pushing for legislation focus in on LGBTI people in the workplace; (2) auditing existing employment related policies in relation to LGBTI issues; (3) working with existing government projects to include LGBTI people such as SOGIE inclusion in poverty reduction strategies; (4) provide for psychosocial and paralegal support to the LGBTI in the workplace; (5) strengthening LGBTIs by forming an LGBTI group, or labor union; and (6) pushing for SOGIE sensitivity trainings.
In another study done by Patricia Angela Luzano Enriquez, “How Discrimination Happens - Being LGBT and the Experience of Discrimination in Access to Employment, and the Labour Market in the Philippines” (2017), the research paper noted that twenty-five percent (25%) of respondents have experienced harassment from their employers or superior officers, thirty-three percent (33%) have experienced harassment from co-workers, and sixty percent (60%) have been the subject of slurs and jokes in the workplace.
Prior to the publication of Enriquez’s paper, research on SOGIE-based discrimination and related incidents in the work setting were usually qualitative in the form of case studies and in-depth interviews compiled by advocacy and human rights organizations, which monitored and documented these incidents while providing legal aid, counseling, and other services to victims.
The first ever “Philippine Corporate SOGIE Diversity and Inclusiveness (CSDI) Index”, a study conducted by the Philippine LGBT Chamber of Commerce and research firm Cogencia Consulting, Inc., and supported by the Netherlands Embassy in Manila, surveyed one hundred (100) companies on their anti-discrimination and equal opportunity employment policies. The study revealed that only seventeen percent (17%) of the respondents — all foreign headquartered companies in the business process outsourcing sector — have anti-discrimination policies explicitly referencing measures to counteract gender discrimination. These policies refer to explicitly prohibiting specific actions such as misgendering, “outing” (publicizing an employee’s SOGIE without their consent), and making use of slurs against LGBTQIAP+ employees. Moreover, only ten (10) out of the seventeen (17) companies have a structure for tracking SOGIE inclusiveness, and only six have actually conducted educational discussions or SOGIE trainings. Eleven (11) out of the seventeen (17) companies explicitly use the terms “sexual orientation,” “gender identity,” and “gender expression” in their anti-discrimination policies, and only three (3) companies have policies against discrimination on the basis of sexual orientation. More than half of the companies surveyed have no plans of creating any SOGIE-based anti-discrimination policies.
Definition of Terms
SOGIE – stands for Sexual Orientation, Gender Identity and Gender Expression. Sexual orientation is the direction of emotional, sexual attraction, or conduct toward people of the same sex (homosexual orientation) or towards people of both sexes (bisexual orientation), or towards people of the opposite sex (heterosexual orientation), or to the absence of sexual attraction (asexual orientation). Gender Identity, on the other hand, refers to the personal sense of identity as characterized, among others, by lifestyle, manner of clothing, inclinations, and behavior in relation to masculine or feminine conventions. Gender expression are the various ways a person communicates gender identity to others through behavior, clothing, hairstyles, communication or speech pattern, or body characteristics.
LGBTQIAP+ – the collective of persons who are lesbian, gay, bisexual, transgender, queer, intersex, asexual, pansexual, and the plus (+) stands to incorporate other marginalized and minority sexuality/gender identities.
Heteronormativity – of, relating to, or based on the attitude that heterosexuality is the only normal and natural expression of sexuality.
Misgendering – referring to someone (especially a transgender person) using a word, usually a pronoun or form of address that does not correctly reflect the gender with which they identify.
Pinkwashing – using a variety of marketing and political strategies to promote brands or products by appealing to LGBTQIAP+-friendliness, in order to be perceived as progressive, modern and tolerant.
SOGIE-based Discrimination – refers to any distinction, exclusion, restriction, or preference which is based on any ground such as sex, sexual orientation, gender identity or expression, and which has the purpose or effect of nullifying or impairing the recognition, access to, enjoyment, or exercise by all persons on an equal footing of all rights and freedoms.
Equal employment opportunity – policies that help ensure that people are hired, retained and promoted on the basis of their ability to perform a job, rather than discriminated against on the basis of factors such as race, color, age, gender, national origin, sexual orientation, veteran status, religion, marital status, or mental or physical disability.
LGBTI in the Mining Industry
The Human Rights Campaign (“HCR”) annually compiles and updates its Corporate Equality Index (“CEI”), a list of companies meeting criteria identifying them as LGBTI-inclusive. The index ranks companies based on a number of indicators, such as access to benefits for same-sex partners, transgender inclusive health insurance, existence of resource groups and diversity councils, and positive external relationships with the LGBTI community, among others. The coveted distinction of “Best Places to Work for LGBT Equality” reflects true inclusion of the transgender workforce, from non-discrimination protections, to inclusive benefits and diversity practices, to respectful gender transition guidelines, allowing employees to self-identity based on gender identity, and engaging the broader transgender community. Previous CEI showed that the mining industry lagged behind other male-dominated industries, such as oil and gas, aerospace and defense, and automotive. It even lagged professional sports, if measured by the media coverage of well-known athletes announcing themselves as gay or lesbian. In the 2018 CEI, Alcoa Corp. and Newmont Mining Corp. qualified under Mining and Metals, while Chevron Corp., ConocoPhillips, and Shell Oil Co. qualified under Oil and Gas.
The mining and metals industry is one of the worst in terms of engagement on LGBTI issues, according to Deena Fidas, Director of the Workplace Equality Program at HRC. One of the reasons the industry is doing so poorly is attributed to mining companies’ lack of interaction with the public.
In Australia, LGBTI mineworkers participating in a study felt that because of their sexual orientation and gender identity they couldn’t relate to their heterosexual counterparts at the workplace. Fear of discrimination and prejudice was a common issue among the sampled group of participants with most claiming to have experienced or witnessed acts of racism, discrimination and prejudice either directly at them or towards others like them, thus reducing their desire to socialize with other employees while on-site. One individual in particular, found that many of the younger and newer LGBTI employees entering into fly-in, fly-out employment struggle to adjust to the attitude and behavior exhibited by those around them and as a result end up leaving. This was commonly attributed to the work environment which fostered a group mentality that lead to most LGBTI participating in the study to perceive the mining industry as being backwards and homophobic. People from LGBTI backgrounds were in a regular state of fear each day due to discrimination thus, socialization was kept at a minimal and mainly professional level to avoid confrontation and discrimination.
The Business Case for Recognizing LGBTI Rights
To combat stereotypes and prejudices against LGBTI workers, many forward-thinking workplaces are implementing diversity policies, usually as part of a framework to promote equality and diversity. While primarily a matter of workers’ rights, such an approach also makes business sense. This awareness makes sense from a business perspective because laws are constantly changing, which puts companies at risk of costly legal liabilities, as in the case of a gay coal miner who sued and entered into a settlement with Spartan Mining Co., a subsidiary of Massey Energy Co., alleging the company’s management didn’t protect him from abusive co-workers.
Mining companies are also likely to see their talent pools shrink the longer they ignore LGBTI issues. Prejudice on account of sexual orientation and gender identity, can impede the recruitment or promotion of the best candidate for the job. When employers pass over talented individuals based on characteristics with no bearing or relevance for the job, such as their sexual orientation, gender identity and sex characteristics, businesses are left with a sub-optimal workforce, diminishing their ability to deliver. Discrimination forces otherwise qualified LGBTI employees to quit their jobs, creating unnecessary turnover-related costs and loss of talent. Discrimination and prejudice in the workplace impair productivity, contribute to absenteeism, and undercut motivation, entrepreneurship, and company loyalty. LGBTI people are unlikely to apply for jobs in a hostile industry, and so are their parents, friends and allies.
In fact, the LGBTI community was a useful ally of the mining industry during the United Kingdom Miners’ Strike in 1984, which was known as one of the bitterest industrial disputes in UK history. To support the miners, many activist groups were formed to aid in the strike efforts, one of which was the “Lesbians and Gays Support the Miners”, a London-based activist group who formed a relationship with the mining community in Wales’ Dulais Valley.
Moreover, a diverse workforce brings with it different ideas and ways of doing things that can propel innovation and appeal to additional markets. An analysis by the Harvard Business Review (2014) also showed that companies with a high level of diversity perform better.
Employees at more diverse companies in the US were forty-five percent (45%) more likely to report that their firm’s market share grew over the previous year and seventy percent (70%) more likely to report that the firm had entered a new market. A Credit Suisse study (2014) also showed that companies that embraced LBGTI employees outperformed in average return on equity, cash flow return on investment, and an increase in profit.
Discrimination, including against LGBTI people, affects productivity and undermines social and economic development, with negative consequences for both companies and communities. It also leads to loss of market share. In a study done by the Harvard Business Review (2016), diversity and inclusion is associated with business success.
The CEI shows that the majority of Fortune 500 companies offer extensive protections and equal benefits for LGBTI employees. It’s no surprise that many CEI top-scoring businesses are also top-performing businesses. They know that creating inclusive workplaces and communities where their employees can thrive is an investment in their own competitive edge. That’s why LGBTI-inclusive workplace policies are becoming the norm in the U.S., and having an impact around the globe. Today, more than ninety percent (90%) of CEI-rated businesses have embraced both sexual orientation and gender identity employment protections for their U.S. and global operations.
Conclusion
Labor rights recognition of LGBTI persons is now becoming the norm as many countries are now adopting anti-discrimination laws based on sexual orientation or gender identity. It is also clear that countries with strong laws and policies promoting equality for LGBTI workers, and companies that implement such laws and policies fare better, which provide a business and economic case for inclusion and diversity. An inclusive, diverse, and non-discriminatory industry would not be hard put to find allies from the LGBTI community especially for a much-maligned and misunderstood sector like mining.
Fernando “Ronnie” S. Penarroyo specializes in Energy and Resources Law, Project Finance and Business Development. He may be contacted at fspenarroyo@gmail.com for any matters or inquiries in relation to the Philippine resources industry. Feel free to follow Atty. Penarroyo on LinkedIn (https://www.linkedin.com/in/fernando-s-penarroyo-2b8a7312/)
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