On gender-fair language in the courtroom

By Atty. Eduardo T. Reyes III

Machismo seems too ingrained in Philippine society that it is hard to shake off.

Even in courtrooms mostly dominated by male judges and prosecutors, the language used therein would sometimes be laced with gender-insensitive or misogynistic words.

In Aiko Yokogawa-Tan v. Jonnell Tan and the Republic of the Philippines, G.R. No. 254646, which came down on October 23, 2023,   the Supreme Court had occasion to remind lawyers and judges to be more circumspect in the language they use in court. Too, they were cautioned to be always mindful of proper court etiquette especially in treating gender matters with utmost sensitivity.

In said case, the respondent was diagnosed by a psychiatrist as being psychologically incapacitated as he was sweet and romantic while courting the petitioner; however, when he got her pregnant, and the same was starting to become obvious, and they had to get married, he turned out to be a totally different person from what he portrayed. Unknown to petitioner, the respondent was also pursuing another woman at about the same time with whom he eventually had another child.

During trial, court records revealed that the judge and prosecutor’s questioning of the petitioner insinuated that she and the other woman were vying for the affection of the respondent and that it was petitioner who “won the contest.”

This did not sit well with the Supreme Court as stated in its decision in Aiko Yokogawa-Tan.  It expressed repugnance over the insensitive language, thus:

“Together, the foregoing reinforces the trope that women are out to entrap men into marriage. The disparaging language shifts the blame on the woman for marrying the unfaithful man after getting pregnant as if society did not stigmatize single mothers. Parting is already a sorrow. It need not be more than what it already is. The bench and the bar are reminded to abide by the Guidelines on the Use of Gender-Fair Language in the Judiciary and Gender–Fair Courtroom Etiquette.”

Too, in the same case, the Supreme Court found it unjust that petitioner would stay married to respondent even if his infidelity is of the serious kind. Indeed, infidelity may be a ground for legal separation but that does not trivialize its serious nature as when it already amounts to psychological incapacity. Thus:

“The existence of grounds for legal separation does not foreclose the possibility of psychological incapacity. X x x

While sexual infidelity is a ground for legal separation under Article 55 of the Family Code, the Court has ruled that the existence of grounds for legal separation does not foreclose the possibility of psychological incapacity.”

Thus, even as courts ought to perform a delicate balancing act between the rights of the petitioner and respondent in a case, the language it must use in conducting the proceedings and especially in conveying its ruling must always be mindful of each person’s sensitivities in today’s modern world.

As Isaac Newton once quipped, “Tact is the art of making a point without making an enemy.”

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor, MCLE lecturer, bar reviewer, and a book author. His website is etriiilaw.com).