Argentina: Ask Authorities To Release The Travesti Targeted For Her Gender Identity
08/09/2006
SUMMARY
On Friday, June 30 2006, travesti Gabriela Gonzalez Garcia went to the Central Police Station in Mendoza city, Mendoza, Argentina, to get a character reference. While waiting to obtain the document, she was accused of violating Article 80 of the Mendoza Province Code of Misdemeanors, penalizing “those who in their daily life wear the clothes or attempt to pass as someone of the opposite sex”. Police officers who were supposed to issue her character reference decided to arrest her instead. She spent five days jailed in the women’s section. Gonzalez Garcia, previously without police record, has now acquired one as a result of her “misdemeanor”.
Action
IGLHRC joins OTRAM – Organización de Travestis de Mendoza and Laura Rios, their president to ask, please, write TODAY to the authorities below, condemning the existence of laws that punish travestis and transsexuals for being who they are and not for any crime or misdemeanor they might have committed.
- Sr. Presidente de la Nación (President)
Dr. Néstor Carlos Kirchner - Mailing address:
Balcarce 50 Piso 1 - C1064AAB Ciudad Autónoma de Buenos Aires, Argentina.
Phone: (54 11) 4344 3600
Email: Webmaster@presidencia.gov.ar - Sr. Secretario de Derechos Humanos de la Nación (National Human Rights Secretary)
Dr. Eduardo Luis Duhalde - Mailing address:
25 de Mayo 606, 4° piso, C1002ABN Ciudad Autónoma de Buenos Aires, Argentina
Phone: (54 11) 4316-4965/6
Email: denuncias@derhuman.jus.gov.ar, ssddhh@derhuman.jus.gov.ar - Sr. Defensor del Pueblo de la Nación (National Ombudsman Office)
Dn. Eduardo Mondino - Mailing address:
Suipacha 365 C1008AAG Ciudad Autónoma de Buenos Aires, Argentina
Fax (54 11) 4819-1581
Email: mondino@defensor.gov.ar. - Sr. Gobernador de la Provincia de Mendoza (Governor of Mendoza Province)
Ingeniero Julio César Cleto Cobos - Mailing address:
Casa de Gobierno, Peltier 351, M5500IDE, Ciudad de Mendoza, Argentina
To send a message, please go to: http://www.mendoza.gov.ar/Paginas/denuncie.php
Kindly send a copy to:
- Laura Ríos
OTRAM – Organización de Travestis de Mendoza - Email: otram03@yahoo.com.ar
- Marcelo Ferreyra
IGLHRC- Latin America and the Caribbean Program - Email: mferreyra@iglhrc.org
A sample letter can be found below.
We write to you to express our concern for the arrest suffered by travesti Gabriela Gonzalez Garcia when she went to the Mendoza City Central Police Station to request a character reference. While waiting to obtain such document, she was accused by the police officers of having violated Article 80 of the Mendoza Code of Misdemeanors and arrested. She spent five days in the women’s section of the Central Police Station. Ms Gonzalez Garcia, who had no police record before, now has acquired one, because of her “misdemeanor”.
Article 80 punishes with 15 days of prison those who “in daily life wear clothes or attempt to pass as someone of the opposite sex”. What this article implies, in practice, is the criminalization of travesti and transsexual gender identity and expression in the Mendoza Province. To punish people because of who they are, and not for what they do, contravenes international antidiscriminatory principles enshrined in Human Rights treaties ratified by Argentina, as well as those informing the national and the provincial constitutions.
In his report submitted to the United Nations General Assembly on January 17, 2002 (E/CN.4/2002/75/Add.1), the then Special Rapporteur on Freedom of Expression, Mr. Abid Hussain, expressed his concern for the high number of cases reflecting human rights violations against sexual minorities and travestis in Argentina. He made explicit references to provincial legislation allowing the police to arrest or punish individuals for offences that are not crimes, mentioning the Misdemeanor Codes of Buenos Aires (Article 92 E), Santa Fe (Article 87) and Mendoza (Article 80) provinces.
This problem has already been address in the guidelines of the document called “Towards a National Plan against Discrimination – Discrimination in Argentina. Diagnosis and Recommendations”, approved by the National Executive on September 7, 2005 (National Decree 1086/05). In Chapter V, paragraph 17, the document recommends: “To repeal, in all provincial and local Misdemeanor Codes, the articles including ‘open’ definitions of misdemeanor (lack of morals, public scandal, loitering, prostitution, etcetera) that allow police officers to arrest individuals without prior intervention by the Judicial system”.
On September 21, 1999, judge José L. Ares, who presides over Correctional Court No. 1, in Bahia Blanca (Buenos Aires province), stated that Article 92.3, from the province’s Code of Misdemeanors that –like its counterpart in Mendoza- punishes those who “in daily life dress and attempt to pass as someone of the opposite sex”, “becomes unconstitutional as it contravenes Article 19 of the National Constitution, that protects the individual’s private and intimate life, as well as other aspects of her/his spiritual or physical personality, such as her/his bodily integrity, image, free choice of lifestyle provided it does not damage others”. Judge Ares adds that Article 92.3 “affects the right to one’s own image, affecting also one’s individual and social life, and contradicts the constitutional order of a State ruled by law that must guarantee tolerance for minorities and for those who are different – a State that must not impose a particular morality or lifestyle for the individual. Because to do so would mean that the State is judging and punishing individuals for their appearance, affecting also their free choice in terms of sexuality and their free development as human beings, ignoring their ethical autonomy”. In his concluding argument, judge Ares says that the Article “becomes unconstitutional, as it represses lifestyles (and not behaviors) that cause no damage to the rights of others, so violating an space where adults enjoy ethical autonomy in their lifestyle choices”.
Taking into account all the above-mentioned arguments, we ask that you do your best to have Article 80 of the Mendoza Province Code of Misdemeanor repealed, as it criminalizes travesti and transsexual identities, allowing police harassment against those individuals.
Best regards,
(Name, address, organization)
BACKGROUND
On Friday, June 30, 2006, travesti Gabriela Gonzalez Garcia went to the Mendoza City Central Police Station to request a character reference. The Ministry of Labour requires character references for everyone who wants to work in any commercial establishment in the province. Gabriela, who had been hired as a waitress in La Reserva Pub, thought she might be able to go through the procedure without any trouble. She was waiting to get the document when the officers accused her of violating Article 80 of the province’s Code of Misdemeanor and arrested her. As a result, she spent five days in the women’s section of the Central Police Station and acquired a police record (which she did not have before).
Article 80 of the Mendoza Province Code of Misdemeanors (drafted in 1965), punishes with up to 15 days of arrest or a fine of 1.500 Argentinean pesos (about 165 US$) those who “in daily life dress or attempt to pass as somebody of the opposite sex”. According to Gabriela, the officers explained that she was being arrested because she was “wearing bangles and earrings”. La Turca – one of Gabriela’s co-workers- was quoted on July 2 in Diario Uno (a local newspaper) saying: “It is impossible for us to have a decent job, or to fulfil our obligations as citizens. It seems that all they want us to do is to become prostitutes”.
Inspector Ricardo Villegas, Chief of Police Investigators in the province, was also quoted by local media, providing the following explanation for the incident: “What happened was that this man (Gabriela) came asking for a character reference. Police officers notified the judge that Article 80 was being violated. The judge ordered the operation to take place and send him to prison for two days. Officers saw a misdemeanor being committed and they acted. What happened afterwards was a judge’s decision”. On July 4, Inspector Villegas used Diario Uno to advice travestis to “dress as men when they come to Police Stations for any procedures”, so officers will not be under the obligation to enforce Article 80. La Turca, who is also an actress, told local media she will never dress as a man to go to a Police Station: “It would be like betraying my community”, she explained.
Also on July 4, 2006, La Turca went to the Central Police Station to deal with some matters related to the pub in which she works. While the Station Chief was talking to her, other police officers called the judge to let her know that “a man dressed as a woman” was at the Station, and asked if “he” was to be arrested. The judge ordered to leave “him” in peace. While taking care of the matters that had brought her to the Station, La Turca had to suffer derogatory looks and whisperings from police personnel. Some police employees told her “Do not come dressed like that any more, because the policemen feel it as a provocation. They believe themselves to be very ‘machos’”.
Codes of Misdemeanors are one of several legal instruments employed by the police in several Argentinean provinces to arrest trans people. Usually, arrests are followed by verbal, physical and sexual abuse and harassment. Paying bribes is the best strategy to avoid arrest. As travesti and human rights organizations have denounced, there is a system in place, with weekly and monthly rates for bribes, and brutal punishments for those who refuse or are unable to pay.
A national network bringing together human rights, travesti, transsexual, sex workers, gay, lesbian and feminist organizations, is being created to advance strategies aimed at repealing several articles in the provincial Codes of Misdemeanor, including those punishing trans gender identity. Activists who are part of this network expect strong opposition to their efforts from police officers who fear the loss of a remarkable source of income if the articles are repealed.
Besides Article 80 of the Mendoza Province Code of Misdemeanors (also known as Law 3365, passed on November 25, 1965), similar dispositions penalizing travestis and transsexuals for being who they are can be found in Article 92.e of Buenos Aires Province Code of Misdemeanors (Law 8031/63, passed on April 12, 1973); Article 101 of Catamarca Province Code of Misdemeanors; Article 87, Title IV, Chapter I of Santa Fe Province Code of Misdemeanors (Law 10703, passed on December 30, 1991); Article 78, Title V, Santiago del Estero Code of Misdemeanors (Law 2425, passed on August 11, 1953) and Article 99, Title III of Formosa Province Code of Misdemeanors (Law 794, passed on September 10, 1979).
On October 7, 1997, in a case involving a travesti, the Penal Court of Appeals No. 3 of Buenos Aires Province declared Article 92.e from the Province Code of Misdemeanors “inapplicable”. The same article was declared “unconstitutional” on September 21, 1999, by Correctional Court No. 1 in Bahia Blanca; on May 2000, by Correctional Court No. 1 in Mar del Plata and on May 2002 by Correctional Court No. 1 in Lomas de Zamora (three different locations in the province).
INTERNATIONAL AND DOMESTIC LAW
The right to be free from discrimination and to equality before the law is protected by the Universal Declaration on Human Rights - UDHR (Articles 2 and 7), the International Covenant on Social and Political Rights – ICCPR (Articles 2 and 26), the International Covenant on Economic, Social and Cultural Rights – ICESCR- (Article 2), the Interamerican Human Rights Convention - IAHRC (Articles 1 and 24), Article 16 of the Argentinean Constitution and Article 7 of the Mendoza Province Constitution.
The United Nations Human Rights Committee affirmed in its decision in Toonen v Australia (1994) that existing protections against discrimination in Articles 2 and 26 of the ICCPR should be understood to include sexual orientation as a protected status. Numerous other human rights mechanisms of the United Nations have subsequently condemned discrimination based on sexual orientation.
The right to Freedom of Expression is protected by UDHR (Article 19), ICCPR (Article 18), and IAHRC (Article 13).
The right to work is protected by UDHR (Article 23), ICESCR (Article 6), Argentinean Constitution (Article 14.bis) and Mendoza Province Constitution (Article 33).
Argentina ratified ICCPR and ICESCR on August 8, 1986, and IAHRC on September 5, 1984. The UDHR is considered part of customary international law, and binding on all member States of the United Nations, like Argentina.
In some USA cities like West Hollywood (1998), Ann Arbor (1999) and Chicago (2002) as well as in the state of Connecticut (2004) there are antidiscriminatory dispositions explicitly mentioning “gender identity”. In cities like Boston (2002) and the states of Kentucky, Michigan and Ohio (in all cases, since 2004) there are similar dispositions mentioning “gender identity and expression”. “Gender expression” refers to the way in which people express how they perceive themselves in terms of gender, through dress and behavior.
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