“Transvesticide”: Inequality before the Law versus Social Justice

Argentine authorities have prompted controversy by introducing a new crime "transvesticide" into jurisprudence.

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Argentine prosecutors are expanding the scope of hate crimes protections for transgender people (PanAm Post).

On Monday, March 12, Argentine authorities began a landmark criminal prosecution: for the first time, prosecutors in charge of the case demand that a murder be considered a “transvesticide,” and as such, a hate crime.

The trial involves the murder of a transvestite activist, Diana Sacayan, who was a prominent figure in the LGBT community.

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Who was Diana Sacayan?

The victim was a key part of the campaign for the recognition of elective gender with regard to identification documents. Sacayan underwent a name change to Diana Sacayán and the new document was delivered by ex-president Cristina Fernández de Kirchner.

Sacayan promoted the allocation of quotas specifically for transsexual persons; through the Labor Quota Act for Trans Persons. That is, by law the government of the City of Buenos Aires should be required to incorporate at least 1% of people who do not identify with their biological sex in their workplace.

An Argentine state agency, INADI, is acting as the plaintiff in the landmark case (Facebook).

Mandating gender stereotyping

Outside the court on Monday, activists passed out leaflets printed by INADI, National Institute against Discrimination, Xenophobia and Racism, which is acting for the first time as a plaintiff in the legal case; the leaflets also bear the logo of the Ministry of Justice and Human Rights of the Presidency of the Nation.

From a liberal perspective, with regard to individual rights, discriminatory laws and state favoritism (such as the requirement that a person is hired based on aspects of their appearance), pose a threat to the principle of equality before the law. Far from achieving justice, laws that categorize people into different groups cause prejudice.

The PanAm Post spoke with lawyers, academics, and specialists from several provinces, who spoke out against the attempt to implement the new crime of “transvesticide.”

What would happen if a transvestite murders a woman?

Since femicide already exists, if a new criminal offense termed transvesticide is implemented Guillermo Covernton, a professor at the Catholic University of Rosario, poses a “question that makes clear that none of this makes any sense”; what would happen if a transvestite murders a woman?

Killing a woman is a more serious crime than killing a man in the country. And since the Argentine government now apparently intends to enact an official policy of discrimination based on who the victim is, if a transvestite is killed there would be a greater penalty than for the murder of a straight man.

Equality before the law

“This is clearly an attack on equality before the law. If we are all equal and the life of a transvestite is valued the same as that of another person, there is no reason to discriminate in the application of the penalty because of whoever is the victim of the crime,” said MartĂ­n Carranza Torres, lawyer and ex-candidate for deputy for the Liberal Republican Party of the Province of CĂłrdoba,

For Belén Aldasoro, Executive Director of the Foundation Progreso y Libertad de Neuquén, the hypothetical crime of transvesticide would not make legal sense: she sees it as related to issues of lobbying and politics.

She believes that this extreme discrimination sets a nad precedent, given that “a person is a person, and the deaths in question are homicides.”

“As a woman, I do not even agree with the specific crime of femicide, because the life of a woman is worth the same as that of a man. Nor do I agree with the feminist concept of victimization, since I believe that never before in history have women had it as good as they do today,” she says.

Clothing as an aggravating factor

According to Ezequiel Eiben, lawyer and founder of the Ayn Rand Foundation from the province of San Juan, the implementation of this new aspect to the criminal code leave us with questions such as, what would happen if the clothing of a person killed was changed after the crime, since transvestism involves adopting the dress of the opposite sex.

If so, a person’s clothing would be determined as an aggravating circumstance in sentencing.

Finally, Diana Mondino from the University of CEMA, in Buenos Aires, concludes that it is an absurd situation: “if we continue like this we will end up with special laws protecting black people, or people of short stature.”

“Why is it worse to kill some than others? Is the life of a transvestite worth more or less than another?” She links this notion of victimization with the idea that the government subsidizes certain sectors with the notion that they deserve more benefits.

She concludes that before the Constitution we are all equal, and before the law as well, and that this new legislation would indicate otherwise. Likewise, the Bible says that you shall not kill your neighbor. It raises the question then: “Are transvestites more or less neighbors that the rest? Should we protect them differently?”

For when rights are individual, biological sex, sexual preference, identification, and clothing are irrelevant. They do not take away or give more value to our lives. Legislation to the contrary would violate the principle of equality before the law, which is in conflict with the very foundation of justice.

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