End of Mission Statement by the United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Mr. Vitit Muntarbhorn, of his visit to Argentina

10 March 2017

“Ladies and Gentlemen,

In my capacity as United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (SOGI), I visited Argentina officially from 1 to 10 March 2017 under the mandate established by the UN Human Rights Council resolution 32/2 in 2016.  This was my first country visit as part of my functions pursuant to the mandate.  This end of mission statement will be followed by a full report to be published at the Human Rights Council in June 2018.

First of all, I would like to thank the Government of Argentina for the invitation to conduct this official visit and for its excellent cooperation before and during my stay.  I would also like to thank authorities’ representatives, both at the Federal and Provincial levels, non-governmental organizations, civil society members and other stakeholders warmly for the friendly and constructive dialogue during the visit.  I had full and open access to those I sought to meet and to places and locations to study the situation under the mandate; I visited Buenos Aires and the suburbs areas, together with La Plata, Rosario and Mendoza. I also accessed various penitentiary institutions to see the conditions of the inmates related to SOGI. 

Argentina has shown great commitment to human rights by becoming a party to the core international human rights treaties, as well as key regional human rights Conventions and other instruments. There are a number of progressive laws and policies at the federal level which help to protect people from violence and discrimination based on SOGI.  One of the most prominent is the Gender Identity Law (2012), a federal law guaranteeing to everyone the right to have his/her self-perceived gender identity recognized and to be treated by others in line with his/her gender identity.  People are entitled to have their gender identity recognized without needing gender reassignment surgery, and the request to change their identity is facilitated without the need for judicial authorization. Access to comprehensive health care is also part of the process.  Importantly, the rationale for the law is based on self-identification, linked with debureaucratisation and depathologization of gender recognition.

This seminal law is coupled with other innovative laws and related reforms, including the law recognizing  same-sex marriage (2010); the Law on Comprehensive Sexual  Education which initiates  the understanding of  sexual diversity from a young age (2006); reform of  the national Criminal  Code to include femicide , which can include transgender  (“travesti, transsexuals and transgender” in local terminology)  women,  as a separate category of aggravated homicide with increased sanctions against perpetrators (2012); and  repeal of  the restrictions that barred people from donating blood based on their sexual orientation  (2015).  There is also a national policy on sexual diversity which is integrated through line ministries with a focal point for coordination and dissemination based at the Ministry of Justice and Human Rights, coordinating policies at the federal level through the Permanent Federal Bureau of Sexual Diversity of the Federal Council of Human Rights.  Various State agencies have special units and or personnel to deal with sexual diversity, and this is much welcome.

These developments are complemented by initiatives at the provincial level, such as a new law to establish a minimum quota in the Province of Buenos Aires to employ transgender persons (not only to help generate employment for the group but also to act affirmatively to overcome gender stereotypes), and repeal of various restrictive laws based on public morality, such as in Santa Fe province. The progression of innovative laws and policies is living proof of the democratic process which opens the door to sexual and gender diversity and broad public participation. In reality, it should be noted that SOGI is very much linked with the situation of lesbian, gay, bisexual, and transgender persons (LGBT). There might also be links with intersex persons (I), for example in regard to choice of surgery and medical care in relation to gender identity.

At the ground level, there is the key issue of implementation and enforcement in a comprehensive setting.  Violence and discrimination are a major concern in a variety of localities.  Killings, assaults, harassment and other transgressions take a major toll among transgender women, in particular.  The seriousness of the problem invites more mapping of the issue.

The transgender group is especially vulnerable and invisible, especially as their background is steeped in  socio-economic deprivations and poverty which might  press them into clandestine street life and occupations, such as sex work or prostitution,  and negative encounters with law enforcers, at times face to face with the latter’s  broad campaign against drugs trafficking.  The short life span of transgender women, interrupted by violence and or discrimination,   attests to their precarious existence.  Transphobia and homophobia compound the situation for a whole range of groups and persons, fuelling attacks on gays, lesbians, bisexuals and or transgender persons in various areas of the country.   

Many sources (both governmental and non-governmental) underlined that institutional violence is pervasive, historically deep rooted in society, and that it lies at the heart of the problem.  Institutional violence, through negative acts and omissions on the part of State officials, is both a root cause of violence and discrimination in relation to SOGI, as well as an aggravating factor and a consequence, and it perpetuates the vicious cycle of abuses.   Ostensibly, some law enforcement officials are involved in the violations, and a major dilemma is their impunity.  This is compounded by difficulties facing victims and survivors in trying to access the justice system, given that there are inherent prejudices against the various groups who demand protection in relation to SOGI.   

The nature of the violence and discrimination is further complicated by the fact that it is multi-dimensional and multi-layered; violence and discrimination might start in the family setting, escalate into the educational system and community environment, and then spread to the provincial and national settings, exacerbated by the internet and cyberspace which might be a crucible for hostile elements inciting hatred and violence. Patriarchy and lack of empathy for sexual and gender diversity are aggravating factors.  Behind all this, there is the socio-cultural exclusion, interlinked with cultural, economic and political marginalization, which feeds the dynamics of violence and discrimination.

Various steps are being taken to counter the violence and discrimination in parts of the country and these need to be expanded and made more effective.  Examples include the change from the inquisitorial system among the judiciary to an accusatorial system; the former relies heavily upon the role of judges in the judicial process, while the latter provides for more checks and balances, including the role of public prosecutors in a more open process.   Importantly, oversight over the police which was previously exercised by the police themselves has been turned over to other actors such as the Ministry of Security, providing more objectivity and transparency.  Educational programmes at various levels of the educational system, as well as for law enforcers and other personnel, have also been initiated.

Other key challenges to be explored in the more detailed report to be prepared include the following:

• Link between  federal law on SOGI and provincial law: there is  a major concern where and  when the federal law is not yet implemented or not well implemented at the provincial level, particularly the Gender Identity Law which is mandatory by nature;
• Divergence between federal law based on SOGI and  provincial laws based on public morality (public decency):  this is  seen in  various laws, including  Codes of  Offences at the provincial level, such as article 81 of the Buenos Aires Code of Offences and various provisions of  the Code in Mendoza province, giving broad power to law enforcers to act against persons/groups on grounds of  public decency, which may result in inconsistencies and injustices;
• Indirect impact of  various laws on the situation of  SOGI:  this is particularly  the case where various laws, such as the anti-drugs law,  are used in policies  for law enforcers to  undertake sweeping law enforcement campaigns , justifying attacks on transgender persons , without due process of  law and at times linked with corruption;
• Interconnection between  laws  on SOGI and the broad range of  civil, political, economic, social and cultural rights:  this is an invitation to understand that the law, such as the Gender Identity Law, is only a beginning, requiring  the enjoyment of  other rights and services , such as access to health care, education, housing, and employment, and needing effective follow-up policies and resources;
• Potential passage of  a comprehensive anti-discrimination law and correlative measures: there is the realization that  current federal anti-discrimination law is antiquated and that a new anti-discrimination law is  needed, also  to include SOGI as one of  the grounds of  discrimination and to reverse the burden of  proof  to assist victims;
• Advocacy  of  an integrated  response to the multiple, intersectional and aggravated forms of  violence and discrimination:  this is  exemplified by the nexus between SOGI and other concerns, such as women, migrants, migrant workers, refugees, children, youth, the ageing population, persons with disabilities, persons with HIV, detainees,  indigenous peoples and  minorities, for instance,  those of  African descent;
• Commitment to sustainabilityand the Sustainable Development Goals (SDGs):  this is  particularly to ensure that laws and policies on SOGI are sustained as a long-term , durable national agenda, with at least a 15 year timeframe under the SDGs,  irrespective changes of administration and on the basis of  non-partisan stakeholdership,  with  effective budgeting and parallel resources;
•  Need to broaden public participation and access to justice: this is targeted  to overcome institutional and other forms of  violence and discrimination, with emphasis on monitoring  the work of law enforcers , and effective action to  broaden accountability and  measures against  impunity, with the full glare of  the general public, complemented by the participation of  other actors such as political, community and religious leaders, the business sector, and the media;
• Call  to have more check and balances against abuse of  power:  this is with a view to  strengthening  the  internal processes of  institutions, such as oversight and disciplinary measures,  and external processes of  scrutiny , such as through the Courts and Ombudsmen  both at  the provincial and federal levels, bearing in mind that the decision to appoint the Federal Ombudsman has been pending for several years  and needs to be expedited.

Orientations:

The following elements advance an agenda for actions, interconnected and not necessarily in the order of priority, calling for effective measures from the authorities, in cooperation with other actors:

1) Laws and Policies

• Ensure effective integration and implementation of  SOGI-responsive national laws, policies and related measures at the provincial  and local levels,  and   sustain them as an overarching commitment against violence and discrimination;
• Reform  laws and policies which are  inconsistent with human rights standards and which might lead to violence and discrimination, such as various provisions of  provincial Codes of Offences;
• Prevent  laws on public decency and anti-drugs laws from being used to discriminate against persons based on SOGI;
• Adopt a new anti-discrimination law with reference to SOGI as one of  the grounds of  discrimination, given that all the draft texts in the national congress include SOGI;
• Apply the quota  law of  Buenos Aires province, aiming to ensure the employment of  at least a minimum number of  employees from the transgender group, and expand the reach of  similar quota laws in other provinces;
• Initiate the process to adopt a law to offer reparation to victims of  violence and discrimination based on SOGI;
• Adopt  the proposed  amended Criminal Procedure Code so as  to enable specially trained prosecutors to act on behalf of  victims;
• Integrate the policy on sexual diversity more effectively into all State institutions and  issue clear instructions to police and other law enforcers, such as through Protocols,  to respect human rights and offer protection in relation SOGI;
• Strengthen the implementation of the National Human Rights Action Plan and related plans which would also integrate into the process  targeted action against violence and discrimination based on SOGI;

2) Programmes and Practices

• Strengthen interdisciplinary action against violence and discrimination, responding to international human rights standards and other commitments such as the SDGs;
• Adopt a  variety of  cross-sectoral measures to apply  the Gender Identity Law  and to  improve access to education, health care, employment, housing, credit, scholarships and other opportunities, including alternative employment and work for transgender women;
• Ensure equitable and accessible distribution of  medicines and related necessities, including anti-HIV drugs, and hormones, as part of  comprehensive health care for all and in particular for transgender persons, while facilitating access by the  Public Health Ministry to prisons directly to provide  services as well as deliver medicines;
• Adopt anti-violence and non-discrimination measures in an intersectional setting, including  coverage for non-nationals and ensure that  laws and policies bearing on non-nationals comply with international standards;
• Improve conditions in the penitentiary system, with due regard to the need to protect persons based on their SOGI, with special quarters as necessary, effective and timely change of identity documents and records to reflect inmates’ SOGI, and access to legal counseling, medical and other assistance to ensure access to justice and basic necessities;
• Expand services such as shelters for victims, hotlines and related facilities and trained personnel to counter violence and discrimination;
• Strengthen efforts  to counter hate speech in regard to incitement to violence and discrimination on the internet through more cooperation with the cyber-industry, in partnership with community and other actors;

3) Mechanisms, Personnel and Resources

• Appoint and strengthen the Federal Ombudsman, ensuring independence of the mandate in compliance with the “Paris Principles“ on National Human Rights Institutions  supported by the UN;
• Establish, identify and or strengthen special units/personnel  to  counter violence and discrimination , also in regard to SOGI, with special training and supports ;
• Ensure more participation and representation of women and others based on SOGI  in the personnel of  the judiciary and law enforcement authorities;
• Strengthen internal and external supervisory mechanisms for  law enforcers, with due regard to checks  and balances ( e.g. Ministry of  Security to monitor police, rather than police to monitor police) and public participation in monitoring the work of  law enforcers (“social monitoring”);
• Sustain resources commitment and ensure equitable allocation of resources, including at the provincial and local levels, on a durable and non-partisan basis.

4) Information, Education and Capacity Development

• Generate statistics/data on groups affected by violence and discrimination, disaggregating the numbers per group and SOGI, and build a federal –provincial data system;
• Integrate sexual diversity information more extensively into the educational curriculum for law enforcers and other authorities, including judges, police, and military;
• Broaden understanding of  sexual and gender diversity by implementing more systematically the Comprehensive Sexual Education Law, and improve the training and teaching for teachers and students, enhanced by  “learning by doing” , such as to encourage children to undertake pro bono work to help the community and nurture a caring mind set;
• Open up dialogue with opinion leaders, including religious leaders, to foster an approach that respects sexual and gender diversity and integrate this into the educational and socialization process for empathy from a young age;
• Undertake a study of how children are impacted upon by violence and discrimination based on SOGI at the federal-provincial level, bearing in mind the various situations and status facing children, including LGBTI  children, children of  LGBTI parents, children in a situation of  adoption, and children related to assisted reproduction and other services based on SOGI;
• Promote research on the intersectionality between violence and discrimination in relation to SOGI, for instance in regard to patriarchy, gender and hetero-normality; indigenous peoples; minorities; detainees; migrant workers and refugees, learning also from the wisdom of  local cultures, in addition to research on the economic dividend of  integrating SOGI into the world of work;

 5) Accountability and Remedies

• Ensure effective follow up of cases of violence and discrimination, including cases against law enforcers;
• Prevent  impunity, counter corruption and ensure accountability through a variety of measures, including improved screening, selection, education, and monitoring of  law enforcers, with correlative incentives for effective law enforcement and sanctions for misconduct ;
• Improve access to justice for all, including access to the courts and other channels for advocacy and accountability, with effective redress, bearing in mind that “justice delayed is justice denied”;

 6) Participation and Stakeholdership

• Enlarge the space for human rights defenders and ensure their protection, guaranteeing and broadening the democratic space;
• Enable a diversity of persons to join State agencies and other professions so as to nurture positive role models based on SOGI;
• Broaden public participation to monitor the performance of law enforcers, thus “democratizing” oversight of law enforcement through community participation and vigilance, and create opportunities for stakeholdership and socio-cultural inclusion based on holistic measures, respectful of SOGI.

I thank you for your attention.”