Today marks the 11th anniversary of the enactment of the Gender Identity Law in Argentina and we still have large debts for its correct implementation.
Gender identity is the internal and individual experience of gender as each person deeply feels it, which may or may not correspond to the sex assigned at birth, including the personal experience of the body (which could involve the modification of the appearance or bodily function through medical, surgical or other means, as long as it is freely chosen) and other expressions of gender, including clothing, the way of speaking and manners.
Gender identity: lack of tools and regulation
However, the concept of dignified treatment is protected by innumerable regulations, both national and international, however, for some groups it continues to be a utopian dream.
The reality is that there are guiding principles on dignified treatment, being received mainly by the American Convention on Human Rights and art. 42 of the National Constitution.
In addition, the Yogyakarta Principles, when referring to this concept, establish that “All human beings are born free and equal in dignity and rights.” It should be noted that, in accordance with the provisions of the aforementioned principles, “Every person has the right to enjoyment of all human rights, without discrimination based on sexual orientation or gender identity.”
Within this framework, states are ordered to “adopt all appropriate measures in order to guarantee the adequate development of persons of diverse sexual orientations and gender identities, as necessary to guarantee these groups or persons the enjoyment or exercise of human rights on equal terms”
In this sense, Law 26,743 on Gender Identity establishes the legal obligation to treat and call people with the name and gender in which they appear, after they have expressed it and regardless of whether the registration change is made or not. No. Followed by its expression, it must be used for the summons, registration, file, summons and any other management or service, both in the public and private spheres, and in those circumstances in which the person must be named in public, only the name must be used. stack of choice that respects the adopted gender identity.
From the aforementioned it arises that the change of name and gender in the DNI is not an obligation, but a right.
The aforementioned norm, referring specifically to its application, states that “All norms, regulations or procedures must respect the human right to the gender identity of people. No norm, regulation or procedure may limit, restrict, exclude or suppress the exercise of the right to gender identity of people, and the norms must always be interpreted and applied in favor of access to it..”
This article is essential given that, although today’s heteropatriarchal society does not have enough tools For its proper implementation, individuals and institutions are responsible for its correct application.
Although there is a protocol, the health sector did not fully adapt to the new gender and identity policies.
From the analysis it emerges that we have made great advances in normative matters on gender issues that promote their recognition, but as long as they do not have specific regulations focused on their correct application, the guardianship of these rights is delegated only to private subjects.
Public and private organizations are held responsible for their violation when in reality they do not have the specific directives. Institutions and users find themselves sailing aimlessly in the sea of regulatory orphanhood.
The truth is that this false inclusion, above all, re-victimizes those who do not feel identified within the heterosexist binary to experience potential symbolic violence, ultimately preventing the correct exercise of their rights..
Health and gender: the outstanding debt in Argentina
A case that is increasingly frequent occurs in hospitals at the time of admitting patients. The person who is in a state of rest in order to achieve a prompt and correct recovery requires for its favorable evolution to have the greatest possible comfort.
Now, what happens with the institutions that promote their compliance? Do they have sufficient legitimacy to make decisions in this regard? Would it be correct for institutions to group patients by gender? Is this dynamic comfortable for users? Is it favorable for your clinical evolution?
Although it is true that we have Law 26,529 on “Patient’s Rights in their relationship with health professionals and institutions”, which, when referring to dignified treatment, establishes the patient’s right to have their convictions respected, and mainly about her gender, it is insufficient.
We do not have information specifically related to the subject. There is only one “Protocol for the care of trans, transvestite, non-binary and intersex people in the field of health” through which principles are established for the non-stigmatization and discrimination of these.
This document, when referring to dignified treatment, expressly states that “…the gender identity adopted by people must be respected, especially by girls, boys and adolescents, who use a first name other than that stated on their national identity document (… ) In the health system, this implies taking into account both the registration instruments (files, clinical history, forms, certificates, etc.), as well as the hospitalization room”. However, it says nothing about how it should be carried out.
On the other hand, the guide for health teams on “comprehensive health care for trans, transvestite and non-binary people”, mentions among the problems surrounding sexual dissidence that “they are admitted to pavilions not consistent with their gender”
Based on all of the above, it can be said that if the criteria for grouping patients into rooms for hospitalization is based on gender, the self-perceived gender must be respected, after its express manifestation, and not based on biological sex. because this constitutes a clear lack of dignified treatment according to their self-perceived and manifested gender.
We can conclude that, 11 years after having a gender identity law, we still have serious problems for its correct implementation. The need then arises to legislate on the matter, duplicating efforts in order not to perpetuate barriers to its application, to achieve the true dignified treatment that every person deserves to receive, and above all in situations where health is affected.
