SUMMARY

Finally, after many years of fighting for their rights, travestis in Mendoza will be able to express their gender identity in public without fear of repercussions. They will not be subjected to arrest or fined for violating article 80 of Provincial Penal Code. This article penalized “those who in their daily life wear the clothes or attempt to pass as someone of the opposite sex”. The new law that invalidates article 80 is an MP Luis Petri initiative.

ACTION

IGLHRC joins the Organización de Travestis de Mendoza (OTRAM) and Laura Rios, their President to ask for congratulation letters to the following authorities, who are working to remove from Argentina any law that punishes travestis and transsexuals for expressing their gender identity.

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

BACKGROUND

Article 80 mandated punishment of 15 days in prison for those who “in daily life wear clothes or attempt to pass as someone of the opposite sex.” In practice, this article criminalized travesti and transsexual gender identity and expression in the Mendoza Province.

According to the Security Ministry Misdeameanor’s office, 19 travestis were arrested under Article 80 in 2005. This year, 33 people were arrested under that same article.

Codes of Misdemeanors are one of several legal instruments employed by the police in several Argentinean provinces to arrest transpeople. Usually, arrests are followed by verbal, physical and sexual abuse and harassment. Paying bribes is the best strategy to avoid arrest. Although LGBT and human rights organizations have denounced these practices, bribery is common.

To punish people who have not committed any crime, 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 reference to provincial legislation allowing the police to arrest or punish individuals for offenses 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 addressed 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, et. cetera) 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, like its counterpart in Mendoza, which punishes travestis “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 states that the Article “becomes unconstitutional, as it represses lifestyles (and not behaviors) that cause no damage to the rights of others, so violating a space where adults enjoy ethical autonomy in their lifestyle choices.”

OTRAM and a national network of human rights, travesti, transsexual, sex workers, gay, lesbian and feminist organizations, are working to advance strategies aimed at repealing several articles in the provincial Codes of Misdemeanor, including those punishing transgender identity. Activists expect strong opposition to their efforts from police officers who fear the loss of a source of income if the articles are repealed.

Besides already removing Article 80 of the Mendoza Province Code of Misdemeanors (also known as Law 3365, passed on November 25, 1965), similar dispositions still penalizing travestis and transsexuals 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).

For further information on previous incidents, please consult our Action Alert of August 9 2006:

IGLHRC's ACTION ALERT: ASK ARGENTINIAN AUTHORITIES TO RELEASE THE TRAVESTI TARGETED FOR HER GENDER IDENTITY

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.