By Paula Bistagnino. In an unprecedented ruling, the Argentine justice system granted a trans man house arrest based on the fact that the conditions of his detention do not respect his gender identity. Held in pretrial detention for two months, BLDM, 26, will be able to serve his entire sentence at his mother's house. “The only precedent I have, and the one I used to make the request, is the only other case involving a trans man. But there is an important difference: in the previous case, the ruling was based on institutional violence and mental health reasons. And not, as in this case, on the issue of gender,” explains public defender Sergio Meirovich, BLDM's lawyer, to Presentes.

An unprecedented ruling in an exceptional case

Meirovich received the case because he was on duty as a public defender for Mobile Legal Unit Number 1 in Economic Criminal Matters. “When he arrived at the courthouse under arrest, he informed us that he is a trans man. We then assessed that he couldn't be sent to a men's prison or a women's prison. But at that moment, we decided that he should be placed in a special section of a women's prison,” he explains. According to the lawyer, a trans man in a women's prison is an exceptional case. “There is no prison population of trans men, that's the reality. However, there is a population of trans women and specific wings or programs.” The public defender emphasizes that the entire process, conducted by Economic Criminal Court 10 and the presiding judge, Diego García Berro, “was impeccable regarding gender issues. His rights were guaranteed at all times, in his treatment, in his access to healthcare and the continuity of his hormone therapy, and in the consideration of his identity when evaluating our request. It was an exemplary interdisciplinary approach.” While there was no institutional violence in this case, from the beginning of BDLM's detention there were problems with his fellow inmates. For this reason, the detainee's mother expressed her son's distress to his lawyer. The possibility of requesting house arrest was then considered. Meirovich sought advice from the Gender Commission of the Public Defender's Office and the Social Problems Program of the National Public Defender's Office. “All the necessary steps were taken to evaluate his conditions of detention and then to determine if house arrest with his mother was viable. Initially, it was rejected, and the decision was well-founded because the reports from the prison did not indicate any violation of rights or worsening of his detention conditions. However, during the appeal, it was proven that he was in a depressive state and that he had been treated disrespectfully by the other inmates and staff,” the lawyer explains. He adds that the pretrial detention was never questioned “because it is very well justified.” The case has already been referred to the Federal Criminal Economic Court, which will oversee the house arrest. “Unless he violates some of the rules, his house arrest will not be lifted. It remains a sentence of deprivation of liberty, strictly enforced and non-negotiable.”

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The ruling: risk of undignified, inhuman or cruel treatment

In the presentation, the defense attorney requested house arrest for BLDM, arguing that “the prison complex is currently not equipped to house a trans man.” Meirovich noted that BLDM suffered discriminatory treatment from his fellow inmates and the prison staff assigned to his care, which led to his transfer to an isolation unit. The court, by majority vote—two to one—revoked the appealed decision and granted BLDM's request for house arrest under electronic monitoring. He is now on the waiting list to receive the ankle monitor that will be used to ensure he complies with his house arrest. “Like any detainee, he is absolutely prohibited from leaving his residence.” Judges Edmundo Samuel Hendler and Juan Carlos Bonzón granted the request, understanding that subjecting BLDM to detention conditions that do not respect her gender identity “could constitute undignified, inhuman, or cruel treatment” according to constitutional principles, international treaties, and the Gender Identity Law. They explained that although she was housed in the Ezeiza Women's Federal Penitentiary Complex 4 at her own request, the prison “does not safeguard her needs as a transgender person.”

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The dissenting vote came from Judge Roberto Hornos, who did not grant the request but asked the National Ministry of Justice and Human Rights, which oversees the Federal Penitentiary Service, to "establish as soon as possible a specific program for transgender men in prison." "It's a very positive ruling because even the dissenting vote includes a call for public policies to guarantee the rights of detained trans men," the lawyer explained. This is similar to the existing program for trans women. The National Penitentiary Ombudsman's Office, which filed as amicus curiae, based its arguments on this point: "The specific program for trans women in prison under the jurisdiction of the Federal Penitentiary Service" does not resolve the issue because "it does not address the needs and specific circumstances of trans men in any of its points." According to Meirovich, this case could serve as a precedent for other trans men deprived of their liberty. “In the case of trans women it is different, but it can be considered when making requests regarding detention conditions. Undoubtedly, it is an unprecedented ruling.”