(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
On 15th July 2010, the bill titled “Matrimonio entre personas del mismo sexo” (“Marriage between persons of the same sex”) was passed in the Argentine Senate in Buenos Aires. Prior to the bill, laws differed provincial level, with some provinces supporting same-sex unions and some strongly opposed to them.
The Marriage between persons of the same sex bill was recognized as an Act on 23rd July 2010, after being published in the newspaper. It provides for same-sex couples to be able to marry and legally adopt children. Section 2 of the Act modifies section 172 of the Civil Code of Argentina so that it now reads:
“For a marriage to exist, full and free consent must be expressed personally by both parties in front of the office with the competence to authorize the marriage. The marriage will have the same requirements and effects regardless of the parties being of the same or different sexes.
Any act that lacks these requirements will not give effect to the marriage even if the parties have acted in good faith…”
There are further provisions in the bill that state that marriages that are made up of two people of the same sex or of different sexes have the same rights and obligations and that no judicial interpretations can be made where they would limit or restrict these same rights and obligations between those marriages.
For a note on how Argentina is governed at a national and provincial level, please see here.
There were a number of different cases that went through the Argentine judicial system in the provincial courts, prior to the law above being passed, that allowed a same-sex union between two men, the most famous being Freyre and Di Bello, whose decision was initially approved and then overturned. They finally managed to get married in Tierra del Fuego – where at the time the marriage was allowed – at the discretion of the governor, Fabiana Rios. The judicial interpretation is no longer relevant as there is now a statutory amendment to the Civil Code regulating the unions.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
While the bill for same-sex marriages was being debated in the Senate, there were reports of a large number of demonstrators outside the government buildings, both for and against the decision to allow same-sex marriages. Argentina has a large catholic population that was moved to the streets upon discovering that there was a high chance their voices might not be heard otherwise. The bill was passed by a narrow margin of 6 votes. While this bill has seemingly recognized the civil, social and economic rights arising from the union of a consenting monogamous couple irrespective of gender, it doesn’t seem to have addressed the fundamental problem of gender identity in Argentina.
According to a report completed by the Federación Argentina de Lesbianas, Gays, Bisexuales y Trans (The Argentine Federation of Lesbians, Gays, Bisexuals and ‘Trans’), there is still a problem with regards to arbitrary detention and hate crimes in some provinces in Argentina, especially as there are still laws in certain provinces where we can be arrested for ‘passing off’ as a member of the opposite sex. This is particularly harmful to the ‘Trans’ element of society as they can be detained for any period of time from 24 hours up to 30 days depending on the province they are in, as well as being fined anything from an insignificant to a substantial amount of their earnings.
Arbitrary detention was considered in the well-known case of Bulacio v Argentina in the Inter-American Court of Human Rights. The Court declared that arbitrary detention should no longer be allowed under any of the provincial laws as these detentions would contravene the provisions in the National Constitution under article 16 equality before the law. There have been a number of cases reported by the Argentine Association of Transvestite, Transsexuals and Transgenders, especially in the city of Buenos Aires, regarding arbitrary detention of people who might cause ‘scandal’ because they were dressed in clothing of the opposite sex. According to the police edicts of the city of Buenos Aires these actions entitled the police to arrest the alleged offender from 6 to 21 days. Consequently, this renders cross-dressing a crime in some parts of Argentina.
On 1st December 2011, the Lower House of Congress in Argentina approved the Gender Identity Bill that would allow any person over 18 to request a change of name and identity without needing the court’s permission. However, it remains to be seen what the Upper Chamber of Congress will decide later on in 2012.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
FALGBT – Federacion Argentina de Lesbianas, Gays, Bisexuales y Trans
Tel: +34 11 56 06 81 71
An LGBTI rights advocacy group that provides support and information countrywide. They have helped to promote the Gender Identity and Same Sex Marriage Bills as they went through parliament and have set up a support network for the vulnerable.
ATTTA – Asociación Travesties Transexuales y Transgeneros Argentinas
Callao 339 6º Piso, CABA, ARGENTINA
Tel: +54 11 15 03 26 335
An advocacy group dedicated specifically to protecting the rights of people with different gender identities. They are a national network providing support and advice to those who have been discriminated against and work for equal access to jobs, education and justice and seek to reconcile any cultural or religious differences in the general population regarding gender identity.
COUNTRY OF ORIGIN SPECIALISTS
We have no specialist on LGBTI for Argentina but would welcome suggestions.
Researched by: Shenaz Bharvaney Daswani