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.

1. Mining and Sexual Identity - Is Our Industry Ready for Gay Workers?
10 May 2019
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 machoculture
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
customerservices.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.

2. 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.
Standard of Conduct for Business, Office of the High Commissioner for Human Rights
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

3. to be “unlawful for any employer to discriminate against any woman employee with respect to terms
and conditions of employment solely on accountof 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 Registraror 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 causedhim to manifestfemale 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,

4. 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 discriminationand 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 becauseof the absenceof 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

5. 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 becauseof their gender identity. Sexual harassmenton 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, whichmonitored 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 absenceof 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.

6. Definition of Terms
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 suchas 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.
Philippine Corporate SOGIE Diversity & Inclusiveness Index 2018
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.

7. 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%) morelikely 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.

8. 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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