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By María Eugenia Ludueña and Ana Fornaro 

Photo: Ariel Gutraich 

Prosecutor Franco Picardi, head of Federal Prosecutor's Office No. 5, issued a ruling requesting the dismissal of charges against a 36-year-old transgender woman for the crime of small-scale drug dealing, arguing that she is "a survivor in a state of excusable need and lacking access to basic rights." He also requested an investigation into the responsibility of higher-ranking officials, arguing that criminal prosecution should focus on larger criminal structures, rather than criminalizing the most vulnerable.

The subject of the ruling is a trans woman, MPC, captured on Buenos Aires City police cameras in a “hand-to-hand” exchange on a street in the Constitución neighborhood in March 2018. It is noteworthy that the police report—cited in the ruling—at times refers to her using male pronouns, violating the Gender Identity Law. The 118-page ruling emphasizes the need to equip the justice system with a gender perspective and reviews theories, citing Judith Butler, Dora Barrancos, Simone de Beauvoir, Michel Foucault, and others. Judge Canicoba Corral's court must now issue a ruling.

[READ ALSO: Five trans women accused of drug dealing were acquitted]

The Prosecutor's Office received assistance from the Gender Policy Directorate in preparing the report. The document details how MPC reached its state of need and cites an environmental report on its history.

Originally from Peru, she was born when her father migrated to Argentina. She left school at age 11 and suffered child labor to contribute to the family income. At 18, she began working as a prostitute. Later, she came to Argentina to live freely according to her gender identity. In her statement, she said the cocaine found in her purse was for personal use and also because clients requested it. The ruling reviews the history of pathologizing and criminalizing the trans community. It also highlights that the accused suffered from several illnesses and is 36 years old: one year older than the average life expectancy of a trans person in Latin America. Therefore, it emphasizes that she is a survivor.

Related causes

Picardi is the author of another ruling along these lines: in April, he requested the dismissal of charges against five transgender women accused of violating drug laws, arguing that their gender identity leaves them extremely vulnerable and subject to structural violence. He also stated that they are victims of "criminalizing selectivity." The prosecutor requested an investigation into whether a criminal organization is using transgender people to traffic drugs.

The National Federal Criminal and Correctional Court No. 7, presided over by Sebastián Casanello, dismissed the cases. Now the prosecution is also requesting an investigation into the connection between the two cases, which are linked by shared addresses.

“There are many reports indicating that the trans community is the most targeted. But on the street, a trans woman's role is prostitution. There's no other option. The client demands drugs. And the one who has to provide them, because it's an imposed social condition, is the trans woman,” says Marcela Tobaldi, an activist with La Rosa Naranja. “The security forces attack trans women for their identity, but also for bribes, for the profits of the prostitution ring,” she adds.

Tobaldi celebrates Picardi's ruling. "It's an exemplary decision to stop persecuting us." But according to her, it goes against what's happening on the streets. "Just recently, several girls were arrested with five small bags of drugs. Neither the justice system nor the security forces want to go after the real drug traffickers."

Judicial activism

Alba Rueda of Mujeres Trans Argentina highlights this and other rulings in the City of Buenos Aires that document structural violence against trans people. “There is an oppressive structure that relates to ways of living and dying. The fact that prosecutors have issued rulings in this regard reflects the efforts of activists within the judicial system. The Justice for Diana Sacayán Commission managed to influence the trial and other justice system officials to include social transvesticide within the framework of criminalization. We celebrate that there are justice system officials who are more sensitive to trans and travesti agendas.”

“It is significant that this recognition of basic rights violations comes from such a conservative sector as the justice system, to which most of the trans population does not have access, because they generally only access it through criminalization. This is the path toward the full realization of human rights and an attempt to break this chain where the weakest links in the so-called war on drugs are the ones who pay the price,” Matías Soich, PhD in linguistics, activist, and professor, Presentes

Picardi's writing develops the international framework of rights and the obligations of the State, as well as the stigmatization, violation, and discrimination that culminate in the
excusable state of necessity.

socially excluded

“Since this government took office, arbitrary arrests of transvestites and trans people in Buenos Aires province have increased by 100%. And mistreatment, abuse, and deaths of our sisters have also increased,” reported Claudia Vásquez Haro, president of Otrans Argentina, which is preparing a broader, nationwide report based on interviews with 100 transvestites and transvestites, with support from the International Trans Fund, to be presented in October. “Our sisters are socially excluded, and this government has implemented hardline policies and arrests targeting working-class neighborhoods where transvestites and transvestites live, especially migrants. We have already denounced the collusion between the police, the judiciary, and the prison system.”