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Proposed reparations make violence against trans* people visible in Argentina

FRIDAY FILE: A bill making provisions to economically compensate victims of gender identity-based institutional violence was submitted past November in Argentina. AWID interviewed trans activist, and one of the bill’s authors, Marlene Wayar[1], on its scope and some of the pending debates in the country on discrimination and criminalization.

By Gabby De Cicco

Progressive laws on LGBTIQ in Argentina

A historical change began for the local lesbian, gay, bisexual, trans*, intersex and queer (LGBTIQ) community when Argentina became the first country in Latin America to recognize same sex marriage when it passed Law 26.618 on July 15, 2010. Two years later, on May 9, 2012, Law 26.743,also known as the Gender Identity Law was passed, allowing trans* people (travestis, transsexual and transgender people) to record their chosen name and sex on their identity papers. It also mandates that all medical procedures required for changing to one’s gender expression be covered by the health system, through both public and/or private facilities.

The two bills were developed by grassroots LGBTIQs and their organizations and opened up very interesting and heated discussions on recognizing rights, discrimination and lesbohomotransphobia. Some trans* organizations [2] have taken another step forward by jointly drafting the “Compensatory Regime for Victims of Gender-Identity Based Institutional Violence” bill, which was launched in the Annex of the Deputies’ Chamber on November 11, 2014 by ruling party MP Diana Conti, who has supported the bill.

Why the need for reparations

Proud to be trans*

The new law aims to grant compensation, in the form of non-contributory pensions, to those deprived of their freedom by Federal Security Forces and/or decisions made by legal authorities or federal prosecutors, because of their gender identity. It responds to Argentina’s history of repressive regimes, during the military de facto government of Juan C. Onganía (1966-1970) and which reached a peak during the last military dictatorship (1976-1983), when edictos policiales (police edicts)[3]were issued as part of a broader persecution and social control approach, seeking to normalize those social groups the State Power considered to be “deviant, as they exhibited attributes seen as damaging for the nation-State”. Marlene Wayar notes “the worst legacy of Dictatorship (1976-1983) that remained intact for almost 30 years after we went back to the democratic order, is that we have been almost the exclusive inmates of this horrific police system. We have been raped, economically exploited, bribed, etc.”

The rationale of the draft proposal highlights “Trans persons, whose very gender identities were a contravention, were among these groups. They were, and often continue to be, victims of the repressive State machinery both under dictatorship and in democracy. The bodies of travestis and transsexuals were construed as “abject” and jeopardizing sexual morals.”

The request for redress embodied by this law is grounded in the Yogyakarta Principle number 28 on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity that reads: “Every victim of a human rights violation, including of a violation based on sexual orientation or gender identity, has the right to effective, adequate and appropriate remedies. Measures taken for the purpose of providing reparation to, or securing adequate advancement of, persons of diverse sexual orientations and gender identities are integral to the right to effective remedies and redress”.

For Wayar this law is important because it offers “a real, concrete and honest way to repair a relationship and set up a legal order with regard to the travesti and trans* community in terms of human rights. For our community it is very important that this apology refers to something concrete and has a material weight, unfortunately that weight is economic so it might seem frivolous, but it is not so.”

Making trans* rights visible

This law will help make visible how repression and prejudice against the entire collective of trans* people including travestis, transsexuals and transgenders, affected and still affects their entire existence. Wayar notes, “We were unable to study, or to work; we missed feeling loved and respected, building our identity with and in self-esteem; we could not have a photo collection with our peers at primary or secondary school, we have not been able to be selected for raising the flag at school or as the ‘best mate’ in class….. Let us start by saying that there are experiences shared by all persons, which have been completely denied to us. The pain this causes grows exponentially if we add the systematic persecution and harassment we suffered at the hands of the national and provincial police and security forces.”

Even though police edicts have been repealed almost completely, many provinces still have Misdemeanor and/or Contraventional Codes that are used to arbitrarily arrest people to check their police records. The Argentinean LGBT Federation mentioned in a report that these codes have already been challenged nationally and internationally in criminal law doctrine and also in human rights struggles against discrimination and repression.[4]

Wayar says that Argentineans still need to discuss several issues, including, what lies behind doctrines or beliefs that “certain individuals are potentially criminal by their very nature, because of their skin color, race, religion, sexuality, sexual or gender choices. This is still unclear for our society; there has not been enough awareness-raising. We hope to open this discussion so we are all aware and ready so if any political party or conservative sectors wants to go back to the past we will have a firm voice to say ‘No’”.

The proposed law is likely to be discussed in May by the Finance and the Human Rights commissions in Parliament. Wayar explains that these commissions will work with MPs to develop the strictly juridical and legal language and to decide how compensation claims will be administratively processed. “The idea is that you only need to show your police record to receive compensation; if anyone - individual or institution- doubt the validity of the claim, they have the responsibility to provide the evidence of the disputation”.

Wayar and other activists are preparing for meetings with public officers to share their testimonials. They are also planning to lobby MPs mainly on a one-on-one basis: “We have discussed it with the key blocs, so we think if they vote per bloc we will win, but we also know that the blocs give their members ‘freedom of conscience’ to vote as they see fit, so the strongest lobbying will be done with individual MPs”.

* Trans activists use the * symbol to reflect the broad range of gender identities and expressions present in their communities, beyond "female" and "male" ones.


[1] Marlene Waya is member of the group Futuro Trans, and Director of El Teje, -she is an art educator, social psychologist and communicator.

[2] Abogad*s por los Derechos Sexuales (ABOSEX, Lawyers for Sexual Rights), and trans organizations Asociación de Lucha por la Identidad Travesti y Transexual (ALITT), FUTURO TRANSGENÉRICO and MAL (Movimiento Antidiscriminatorio de Liberación – Anti discriminatory Liberation Movement).

[3]The writer and activist Nestor Perlongher explained in an article written during the last dictatorship that “The so-called police edicts – that are not exactly laws by political internal regulations – allow officers to arrest any person under suspicion of prostitution, homosexuality, idleness, alcoholism, etc. and keep her or him in jail up to 30 days in Buenos Aires and 90 in Cordoba without a judge intervening”.

[4] “Report on Misdemeanor and/or Contraventional Codes of the provinces of Argentina and the Autonomous city of Buenos Aires and the discrimination and repression against gays, lesbians, bisexuals and trans*

Latin America