Despite recent advances in gender rights and equality, efforts to approve a new anti-discrimination law have so far stalled in Congress. LGBT groups are pushing for this to change in 2016.
With the Congressional year now in full flow, LGBT legislators and supporters are once again pushing a bill for the Prevention and Punishment of Acts of Discrimination for discussion in the Lower House of Congress.
The proposals are for a modification of Argentina’s original Anti-discrimination Law, no. 23,592 from 1988, and adapts it to the country’s current social and cultural climate, proffering a “more comprehensive standard and more extensive prevention, reparation, and punishment of discriminatory acts.”
While the original was an important protection of equality as stipulated in Argentina’s constitution, it did little more than outline several identifying categories protected against discrimination and lay the framework of a minimum sentence for committing discriminatory acts. The proposed new law, presented in March, goes a step further by amending the legislation in ways considered “necessary to promote the constitutional guarantee of equality from the perspective of diversity, and to prevent and punish discriminatory acts and conducts.”
Article 3 of the proposed law identifies dozens of physical, social, personal, sexual, professional, and political traits which need legal protection against discrimination. The inclusion of gender, gender identity and/or expression, and sexual orientation as protected categories is one of the reasons why the LGBT community has taken so strongly to the advocacy of this bill at the national level, including slogans like “antidiscrimination now,” on banners during Buenos Aires’ Pride March last November.
More generally, the project also includes the presumption of discriminatory nature, which reverses the burden of proof more favourably for the victim, outlines reparations for moral damage, and includes, as part of sentencing, awareness and training courses on human rights and discrimination, and community work with associations defending the rights of discriminated groups.
It also outlines preventative educational campaigns to be put in place at all levels of government.
According to General Secretary of the Argentine LGBT Federation (FALGBT) María Rachid – who not only helped draft this bill, but also presented similar legislation which passed last year in the City of Buenos Aires (ley 5,261) – by including educational initiatives, the bill serves the cultural battle, working across the country towards education that makes equality legislation a part of everyday life.
So why did it take so long?
Argentina has been, over the past 10 years, one of the most progressive countries in the world for LGBT rights – certainly the most progressive on the largely Catholic South American continent. In 2010, Argentina became the first country in Latin America to legalise same-sex marriage and adoption, and in 2012 passed revolutionary legislation on gender identity, which allowed for gender to be legally changed without having undergone reassignment surgery. In 2015, gay and bisexual men were legally allowed to donate blood, and LGBT content was included in anti-discrimination legislation in the City of Buenos Aires; however, national protection has stalled.
As large strides were made in the last years of the Cristina Fernández de Kirchner administration, it seems odd that a gaping hole still exists in Argentine LGBT legislation. Rachid, who is also a legislator in Buenos Aires for the Kirchnerist Frente para la Victoria (FpV), attributes the delay to a difference of priorities.
“The previous government succeeded in very important laws like equal marriage, gender identity, and mental health laws that prohibit diagnoses on gender identity and homosexuality,” she says; “we were able to achieve a lot of our main goals as an organisation. Anti-discrimination always seemed the easiest, so we focused on the others.”
At the same time, Rachid notes that several new bills have been tabled in recent years and that it remains a key missing piece of legislation. City lawmaker Gabriela Seijo – who helped present anti-discrimination legislation on the municipal level – has called it an “indispensable instrument of protection,” particularly in light of an apparent new wave of violence against LGBT people in areas of the country.
Neo-Nazi beatings of gay men in Mar del Plata which have been making headlines since October 2015, while a gay minor was kidnapped and tortured in the coastal city of Miramar. In response, leading members of the Argentine Homosexual Community (CHA) have called for an urgent answer from government officials, including President Macri as well as Buenos Aires Province Governor Maria Eugenia Vidal.
In a statement released after the attack in Miramar, CHA Secretary Pedro Paradiso Sottile urged action, saying: “[t]here is not, nor should there exist, any place for torture in democracy; thus, we return to our urgent request of the Argentine parliament to amend the Anti-Discrimination Law and address this hatred and fundamentalism that attacks and kills us.”
Rachid also asserts that violence against the LGBT community – mentioning specifically transgender women working on streets – exists to this extent because police and armed forces have a government which allows them to turn a blind eye to LGBT violence. The situation, she concludes, will only improve with redefined anti-discrimination legislation.
The view is shared by trans activist Kalym Soria, who told The Indy that anti-discrimination legislation can help prevent hate crimes by changing attitudes towards the more common, non-violent forms of discrimination that often precede them.
Is it too late?
December’s change to a more conservative government had some worried about the future of LGBT progress. Many LGBT organisations have been openly critical of former city mayor turned president Macri and his stance on LGBT and other human rights.
Amid criticism during last year’s electoral campaigns, the FALGBT officially backed Cristina Fernández de Kirchner’s chosen successor, Daniel Scioli, urging voters to consider “the future of our families, our neighbours, that of our colleagues, and our own.”
Specifically, in a public statement, the organisation cited Macri’s now vice-president, Gabriela Michetti’s voting record, saying “the possibility that someone who voted and/or militated against our rights … would become the Vice President of the Nation and the President of the Senate … fills us with concern and anguish.” Michetti voted against same-sex marriage in 2010.
Similarly, the Homosexual Community of Argentina (CHA) urged people to vote against against Macri during November’s Pride Parade in Buenos Aires, saying that the Propuesta Republicana’s (PRO) voting record put Macri in diametric opposition to the CHA. “For us it is unthinkable that someone in our community votes in a party and a candidate that is against the laws that benefit them,” Cigliutti told media during the march.
While LGBT organisations have criticised the PRO’s past, since coming to office, members of Macri’s government have met with LGBT and other human rights groups to assure their commitment to these causes. On 3rd March, Cabinet Chief Marcos Peña, and Secretary of Human Rights and Cultural Pluralism Claudio Avruj met with the FALGBT, promising to stand and work together to fight xenophobia and discrimination, leaving an optimistic outlook. And later that month, the ‘Cambiemos Diversidad’ group was launched to tackled issues of racial and gender diversity and human rights.
Rachid asserts that the proposed anti-discrimination legislation will go forward. “I don’t know if the law will be finalised this year, but we expect to make some progress,” she says.
Though it has been FpV legislators presenting the anti-discrimination projects in recent years – two of which are currently active in Congress – Rachid says there is consensus on most of the key issues. Last year, a Committee-level ruling signed by all political groups confirmed agreement on the majority of proposals put forward by the FALGBT. The first task of the ‘Cambiemos Diversidad’ group was to present its own anti-discrimination bill, which broadly mirrors the existing projects.
There is also promise to be taken from the success of the municipal anti-discrimination law, which was presented with the cooperation of both the FpV and PRO legislators, and approved while Macri was mayor of Buenos Aires. Meanwhile, the capital continues to push forward with additional measures to protect the LGBT community, including the launch of a new Observatory to monitor hate crimes committed against the local trans community.
As the new bill asserts: anti-discrimination legislation has become a necessity and will play an important role in protecting the most marginalised of Argentine citizens.