Second presentation of the report by the FALGBT for the Universal Periodic Review of Argentina

The Argentine Federation of Lesbian, Gay, Bisexual and Trans is a non-governmental organization founded in 2005 by community based organizations with more than 20 years of experience in working for LGBT human rights. Since its foundation, the FALGBT has committed itself to conquering “the same rights with the same names” for LGBT citizens as the rest of the population. In order to acheive this goal, the following objectives were defined: the Equal Marriage Law (passed on July 15, 2010); the Gender Identity Law, and Comprehensive Health Care for Trans People (passed on May 9, 2012); the repeal of contraventions criminalizing sexual diversity in 14 Argentine provinces (another goal reached); and the inclusion of sexual diversity content in the comprehensive sexual education (also fulfilled). Today the FALGBT is made up of more than 70 civil society organizations throughout our country.

This is the second opportunity for the Argentine LGBT Federation to submit a report for the Universal Periodic Review of Argentina, having made the first presentation in 2012 for the first evaluation cycle.

The report written for this evaluation session has been prepared according to the work carried out by our organization in the different provinces of our country, in order to show a federal view.

Our statement will focus on the analysis of the human rights situation of Lesbian, Gay, Bisexual and Trans people in our country. However, it is impossible to address it without first denouncing the recent forced disappearance of Santiago Maldonado by the federal security forces while he was in a demonstration in favor of the rights of indigenous peoples. Nor can we fail to mention the situation of the indigenous leader Milagro Sala who was detained in the province of Jujuy after a human rights protest. This is undoubtedly a context of increasing institutional violence and repression of social protest which in the last couple of years has particulary affected vulnerated groups.

In regard to the lesbian, gay, bisexual and transgender population, this report will address: the lack of anti-discrimination legislation; hate crimes against the LGBT population; institutional violence; incarcerated LGBT people; measures aimed at the social integration of asylum seekers and refugees on the basis of sexual orientation and gender identity; rules of contravention codes and police violence; access to antiretroviral medication for HIV / AIDS; non-compliance with law 26,743 regarding access to comprehensive health; arbitrary detention and criminalization of protests.

To begin with, we would like to highlight the creation of the Directorate General for Integral Policies on Sexual Diversity, which is dependent on the National Secretariat for Human Rights and Cultural Pluralism, the provincial and municipal areas of diversity created in recent years according to the recommendations made from the LGBT Citizenship Plan carried out by our organization, and the openning of a Trans Community Center in the city of Buenos Aires, a very important achievement of ATTTA (Transvestite, Transsexual and Transgender Association) with the local government; however we note with concern the lack of budget allocation for the development of all this work, and to cover the real demands of the LGBT population.

It’s necessary to emphasize the lack of national anti-discrimination legislation that recognizes the identity and expression of gender and sexual orientation among other discriminatory pretexts not provided for in current legislation. We believe that there is a need for more comprehensive federal regulations and more effective mechanisms for the prevention, reparation and punishment of discriminatory acts, as proposed in the National Law Project that is being promoted by the FALGBT, just as it was done with the Law against Discrimination No. 5,261 of the Autonomous City of Buenos Aires which was finally passed in 2015. Therefore, our country has not complied with the recommendation made by Mexico, which urged the Argentine State to take all necessary measures to eradicate all forms of discrimination against women, children and minorities. Although we managed to sign a majority opinion with a vanguard text subscribed by most of the political forces, there has been no political will of the ruling party to put it in treatment in the parliament.

With regard to hate crimes due to sexual orientation and gender identity, statistics continue to grow while the treatment of the Anti-Discrimination Law continues to be postponed. In 2016, in Argentina, thirty-one (31) hate crimes had been registered according to the National Observatory of LGBT Hate Crimes from the observation of  mass media and information collected by the LGBT Ombudsman under the Institute against Discrimination (ICD) of the Ombudsman’s Office of the City of Buenos Aires, through complaints received, social networks, telephone contacts, in articulation with the Argentine LGBT Federation and its territorial development in the 24 provinces of the country. This data is not accurate, since it includes only those cases that have been recorded only by  social organizations and the Ombudsman’s Office in Buenos Aires.

According to the report, it is possible to affirm that 33.4% of registered crimes are committed by security forces personnel in the exercise of their state function, these cases of institutional violence particularly affect trans women. Therefore, we demand the Argentine State make sufficient efforts to comply with the recommendation made by Costa Rica, in which it was urged to carry out training programs and strengthen the human rights education of the security and police forces of our country. And additionally to stop issuing messages that endorse the institutional violence of the security forces, from the National Ministry of Security.

As for the conditions of detention of persons deprived of their liberty, the situation is serious and has been worsening in recent years. Both in the federal and provincial orbit the detention centers have become overcrowded, resulting in multiple cases in the declaration of the penitentiary emergency, due to the fact that between eight and ten peiple were living in two-man cells. Obviously, the Argentine State has not taken into account the recommendation made by Spain with regard to improving the detention conditions of persons deprived of their liberty; and combating prison overpopulation and acts of violence in prison. While there have been changes in the sense of respect for the gender identity of imprisoned people in recent times, there has been a backlash in several of the rights recognized in recent years, such as access to education and work of imprisoned people, that had already been violated, but had found some progress in laws such as educational stimulus and others in the same direction.

In reference to the incarcerated LGBT population very little progress has been made, although we can highlight that between 2012 and 2015 there has been some progress within the federal prisons where trans women (transsexuals, transvestites and transgenders) were able to be in women’s prisons, although biological binarism is still maintained for the classification of imprisoned people. In the province of Buenos Aires, there are still trans people who live in men’s prisons, and who have been the subject of a greater level of discrimination and violation in the prison area. Many of them are being used by the penitentiary system, many of them are forced to sexual work, and many are being used for the commercialization of illicit drugs. There are no teams of psychologists to work with or accompany LGBT people in the confinement process and there are no post-penitentiary integration measures. In particular, the trans-comrades who are freed often return again easily, since there is no assistence from the State.

With regard to immigration policy, we believe it is important to denounce the decree No. 70/2017 that modifies the Immigration Law No. 25,871, which was strongly criticized by the United Nations Committee against Torture. It also substantially modifies access to citizenship for all de facto resident migrants, establishing burdensome requirements that did not exist in the original standard. Among other issues, the DNU repeals some of the guarantees of the 2004 legislation, as it introduces “a very summarized procedure for the expulsion of migrants, which drastically reduces the time for resorting the expulsion” and makes it difficult for migrants to have access to legal aid; establishes the preventive detention of migrants from the beginning of the procedure; and increases the rejection of migrants at the borders, without the guarantees of due process and free legal assistance.

Likewise, the Argentine State has not made the necessary efforts to adopt social integration measures for refugee seekers and refugees, and although we recognize that since 2006 there has existed a policy of recognition of refugee status that is very respectful of human rights, there is currently no mechanism for social assistance and integration of asylum-seekers and refugees, and only a few of them get access to the basic humanitarian aid provided by UNHCR. The bureaucratic processes of the National Commission for Refugees (CONARE) are often far more extensive than those established by current legislation, creating complications in the social integration of refugees.

In reference to the human rights of people living with HIV, since the end of 2016 different civil society organizations, including the FALGBT, made complaints to the authorities of the National Ministry of Health denouncing the lack of, and delay in, the delivery of antiretroviral medication for people living with HIV / AIDS, which is in clear violation of Law No. 23,798 and its regulatory decree No. 1244/91.

The right to integral health of trans people is guaranteed by Law 26.743 and its complementary legislation, but the actual application is currently limited by at least several factors: the resistance, on the part of some prepaid medical companies and the public health care system, to providing full coverage of the hormonal treatments for the identity construction of trans people; as well as full coverage of the surgical interventions; and the lack of training and knowledge of the healthcare professionals, either in terms of the scope of the norm or the non-discriminatory treatment towards the lgbt community in general.

In relation to trans girls and boys (trans people under 18 years of age), who are also guaranteed access to comprehensive health in relation to hormonal treatments, including hormone inhibitors and blockers, the access to this right is also violated due to lack of training and lack of knowledge of the professionals in the area. At present there are very few comprehensive and interdisciplinary services for trans infants and teens throughout the country.

Going forward, we recommend that the government of the Argentine Republic:

Guarantee the right to protest and give protection to the work of human rights defenders.

Discuss and approve the new Law of Discriminatory Acts, sanction an Integral Law for trans people, and pass a national labor quota law for the trans community.

We recommend developing public policies aimed at sensitizing the security forces to the human rights of LGBT people, and implementing a protocol that respects human rights and avoids messages from the state that promote institutional violence.

We recommend developing a protocol for action in prisons in order to guarantee the human rights of incarcerated LGBT people.

From the political powers and from justice, at all levels, the decisions necessary to end harassment and police violence against LGBT people, especially trans people, must be taken as a matter of urgency.

Repeal Contraventions Codes of all provinces that criminalize groups violated by discrimination specifically those discriminatory articles of the Faults Code of the Province of Formosa and the “open figures” and criminalization of sex work in several provinces from around the country.

Actions of the federal executive power that guarantee the effective implementation and updating of the contents of the Comprehensive Sexual Education Law throughout the national territory, including, if necessary, relevant legal actions against the provinces that violate it.

Implement active policies to address and resolve the serious issue of school harassment, in particular harassment of LGBT children and adolescents.

Generate social inclusion policies for asylum seekers and refugees on the basis of sexual orientation and gender identity.

Compliance with National Law No. 23,798 and its regulatory decree No. 1244/91 in order to guarantee the delivery of antiretroviral medication and others, in the public and private health system. Give final sanction to the national project of “Law on Hiv, Viral Hepatitis and Sexually Transmitted Diseases (STD) that already has an opinion from the Health Commission of the Chamber of Deputies of the Nation.