Trans persons, whose gender identity differs from their assigned sex at birth, face frequent harassment and violence in all regions of the world. Similarly, intersex individuals, born with body characteristics that challenge typical notions of male or female bodies, are often stigmatized and subjected to multiple human rights violations, including their right to health and physical integrity. These violations, however, are often excluded from the protection of gender-based violence (GBV) norms. In fact, human rights law is reluctant to expand the concept of gender to include trans and intersex persons. This excludes them from a ready-for-use and sophisticated system of protection.
The recent visibility of violence against trans persons challenges the legal conceptualizations of 'men' or 'women' by including attention for trans and intersex persons. This could transform the scope of protection of human rights. The formal and practical potential of broadening existing GBV frameworks to protect trans and intersex persons is explored in this project, directed by Dr. Lorena Sosa with the support of Utrecht University and the University of Buenos Aires. The study critically examines the legal and social developments in Argentina regarding trans and intersex persons, given their innovative character and the high levels of social awareness on the issue.
From a comparative perspective, the Argentinian legal framework applicable to trans and intersex persons shows features scarcely available in other legal frameworks. The murder of trans persons can be prosecuted as gender-based violence or as a hate crime, both incorporated to the Criminal Code as aggravations. The gender-based violence murder is labelled as ‘femicide’ -emphasising that the victim was a woman- while a murder based on hate is labelled as ‘travesticide’ -emphasising that the victim was trans or transvestite. The implications of each alternative require more research, yet if the prosecutor chooses to give more visibility to the identity of the victim as trans, the GBV system seems to be set aside (such as the reparation measures granted to femicide secondary victims).
Some highly sophisticated theoretical notions have been incorporated into the legal framework, such as ‘symbolic violence’. Yet, despite several implementation mechanisms used, media representations remain discriminatory. Also, the legal recognition of gender identity parts from pathological understandings of transgenderism by disconnecting it from genitalia and traditional body constructions. Moreover, non-binary identities have been recognized in case law and administrative practice. However, the reading of the law in most cases seems to reinforce traditional body constructions.
Case law has occasionally recognized the severely disadvantaged position of trans persons, even by exempting their responsibility in criminal cases. Some corrective measures are being adopted at the local level, such as labor quotas. Yet, general principles of law found in civil and labor law are seldom used in combination with the equality principle to protect trans and intersex persons. Trans issues are generally channeled through a separate legal pathway, and civil society claims the adoption of ‘new norms’ rather than a more comprehensive and inclusive reading of existing ones.
The officials, judges and lawyers that must apply gender diversity norms are either unfamiliar with them, or apply them in isolation. General principles derived from the GBV and trans/intersex frameworks do not permeate the normative system in its integrity. Training seems the obvious yet insufficient recommendation. Yet, in addition to the flaws in legal implementation, the Argentinian context currently shows a strong discursive regression. Conservative groups actively campaign against the implementation of gender diversity laws. The need to mainstream gender diversity norms into the general normative system seems even more imperative.
