Argentine President Alberto Fernández presided over a ceremony today where Law 27,636, promoting access to formal employment for transgender and transvestite people, was enacted. The ceremony, held at the Bicentennial House, was attended by the Minister of Women, Gender and Diversity, Elizabeth Gómez Alcorta; the Undersecretary of Diversity, Alba Rueda; and the Legal and Technical Secretary of the Presidency, Vilma Ibarra.

The law provides a series of measures for labor inclusion in the National State through a minimum quota of 1% in the three branches that comprise it, the Public Ministries, the decentralized or autonomous bodies, the non-state public entities, the State companies and corporations, in all forms of contracting, which must be allocated to transvestite and trans people.

“It’s a state policy, not a government policy,” the minister stated. Gómez Alcorta reported that in 2020, when the presidential decree mandating that the state hire 1 percent of transgender and transvestite people, there were only 30 of them working in the national public sector. “Today there are 320,” the minister said at the event. She also announced that the Registry of applicants for jobs in this sector already has more than 4,300 profiles of those applying. “It’s a state policy, not a government policy,” the minister reiterated.

The event was attended by activists and organizations representing sexual diversity, as well as members of parliament such as Mónica Macha, whose work was crucial in making the initiative, which organizations had been advocating for for years, into law. Also present were trans officials Ornella Infante, National Director of Policies against Discrimination at the National Institute against Discrimination, Xenophobia and Racism (INADI); and Daniela Castro, Provincial Director of Gender and Sexual Diversity Policies at the Ministry of Women, Gender and Diversity of the Province of Buenos Aires . and the activists Say Sacayan, brother of Diana (MAL), Marlene Wayar (Futuro trans), Marcela Romero (ATTTA), Darío Arias and Ivana Gutiérrez (Conurbanes por la Diversidad), Marcela Tobaldi (La Rosa Naranja), Claudia Vásquez Haro (Otrans Argentina), Greta Pena and Martin Canevaro (100% diversity and rights), Daniela Ruiz (7 Colores), Paula Arraigada (La Nelly Omar), Daniela Castro (Frente Patria Prande), Magui Valdes (NE), Julieta Antúnez (Liga LGBT), among others.

“Today is a day to cherish. A historic day for the trans and travesti movement,” said Alba Rueda, Undersecretary of Diversity, minutes before the president signed the final text of the law. She highlighted three key aspects to understand the importance of this new legislation: “The recognition of the trans and travesti movement as a political subject of rights. The recognition of our conditions of structural inequality, which makes the prospect of early death from preventable causes all the more poignant for us. And the heart and soul of our trans comrades in creating this law, embracing the human rights paradigm, and reclaiming our identity as a fundamental part of democracy.”.

“Today is a day to cherish. A historic day for the trans and travesti movement,” said Alba Rueda, Undersecretary of Diversity, minutes before the president signed the final text of the law. She highlighted three key aspects to understand the importance of this new legislation: “The recognition of the trans and travesti movement as a political subject of rights. The recognition of our conditions of structural inequality, which makes the prospect of early death from preventable causes all the more poignant for us. And the heart and soul of our trans comrades in creating this law, embracing the human rights paradigm, and reclaiming our identity as a fundamental part of democracy.”.

Rueda emphasized the commitment this law represents to the human rights paradigm, calling it “historic for Argentina, Latin America, and the world.” She also mentioned how this paradigm embraces the historic struggle of the Mothers and Grandmothers of Plaza de Mayo. And, with emotion, she recalled: “The law is named after Diana Sacayán and Lohana Berkins as a synthesis of social struggle, rights, and resistance—two fundamental aspects of the trans and travesti movements in Argentina.”. 

LAW PROMOTING ACCESS TO FORMAL EMPLOYMENT FOR TRANSVESTITE, TRANSSEXUAL AND TRANSGENDER PEOPLE “DIANA SACAYÁN – LOHANA BERKINS”

Law 27636

Provisions.

The Senate and Chamber of Deputies of the Argentine Nation, meeting in Congress, etc., enact the following law:

LAW PROMOTING ACCESS TO FORMAL EMPLOYMENT FOR TRANSVESTITE, TRANSSEXUAL AND TRANSGENDER PEOPLE “DIANA SACAYÁN – LOHANA BERKINS”

Chapter I

General provisions

Article 1 - Purpose. The purpose of this law is to establish affirmative action measures aimed at achieving the effective labor inclusion of transvestite, transsexual and transgender people, in order to promote real equality of opportunity throughout the territory of the Argentine Republic.

Article 2 – Regulatory Framework. In compliance with the obligations of the Argentine State regarding equality and non-discrimination, this law adopts positive measures to ensure that transvestite, transsexual, and transgender people exercise the rights recognized by the American Convention on Human Rights and its Additional Protocol on economic, social, and cultural rights; the specific recommendations established in the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity; Advisory Opinion No. 24 of the Inter-American Court of Human Rights on gender identity, and equality and non-discrimination for same-sex couples; and Law 26,743 on gender identity; in particular, those related to:

a) Gender identity;

b) Free personal development;

c) Real equality of rights and opportunities;

d) Non-discrimination;

e) Decent and productive work;

f) Education;

g) Social security;

h) Respect for dignity;

i) Privacy, intimacy and freedom of thought.

Article 3 - Definition. For the purposes of this law, and in accordance with the provisions of Article 2 of Law 26.743, transvestite, transsexual and transgender persons are understood to be all those who self-perceive with a gender identity that does not correspond to the sex assigned at birth.

Article 4 - Persons covered. This law covers transvestite, transsexual and transgender persons authorized to work under the terms established by labor legislation, who declare that their Gender Identity is covered by the definition in Article 3 of this law, whether or not they have accessed the registration change provided for in Article 3 of Law 26.743, on gender identity.

Chapter II

Positive action measures

Article 5 - Labor inclusion in the national State. Quota. The national State, comprising the three branches that make it up, the Public Ministries, the decentralized or autonomous agencies, the non-state public entities, the State companies and corporations, must employ in a proportion of no less than one percent (1%) of its total personnel with transvestite, transsexual and transgender persons, in all the current regular hiring modalities.

To ensure compliance with the quota established in the preceding paragraph, public agencies must reserve job positions to be filled exclusively by transgender, transsexual, or gender-diverse individuals. They must also reserve vacancies arising in positions held by employees hired under this law to be filled entirely by transgender, transsexual, or gender-diverse individuals.

Compliance with the provisions of this law should in no case imply the termination of employment relationships existing at the time of its enactment.

Article 6 – Educational Completion and Training. To guarantee true equality of opportunity, the requirement of educational completion may not be an obstacle to employment and retention under the terms of this law. If applicants for job positions have not completed their education, as defined in Article 16 of Law 26.206, the National Education Law, they will be permitted to enter employment on the condition that they complete the required educational level(s). In these cases, the implementing authority must take the necessary steps to guarantee the mandatory education and training of transgender, transsexual, and gender-diverse individuals in order to align their situation with the formal requirements for the job in question.

Article 7 - Non-discrimination. Every transvestite, transsexual or transgender person has the right to dignified and productive formal work, to equitable and satisfactory working conditions and to protection against unemployment, without discrimination on the grounds of gender identity and/or its expression.

In order to guarantee entry into and retention of employment, prior offenses will not be considered. Likewise, the criminal records of applicants, even if irrelevant to accessing the job, will not represent an obstacle to entry into and retention of employment, given the particular vulnerability of this group.

Article 8 - Cross-cutting and federal inclusion. Efforts must be made to ensure that the labor inclusion of transvestite, transsexual, and transgender people, in accordance with the provisions of Article 5 of this law, is reflected in all obligated bodies, also ensuring a federal application in terms of the geographical distribution of the jobs filled.

Article 9 - Awareness-raising actions. The bodies included in Article 5 of this law must promote actions aimed at raising awareness with a gender and sexual diversity perspective in the workplace, in order to effectively integrate transvestite, transsexual and transgender people into the workplace.

Article 10.- Priority in State Contracting. The national State must prioritize, at equal cost and in the manner established by the regulations, the purchase of supplies and provisions from legal entities or individuals in the private sector that include transvestite, transsexual and transgender people in their workforce.

Article 11.- Incentives. Private sector. Employer contributions generated by the hiring of persons benefiting from this law may be taken as payment on account of national taxes.

The benefit established in the preceding paragraph is valid for twelve (12) consecutive months from the date of the employment contract. In the case of micro, small and medium-sized enterprises, the term will be extended to twenty-four (24) months.

Article 12. Access to Credit. The Banco de la Nación Argentina shall promote lines of credit with preferential interest rates for the financing of individual or group productive, commercial, and/or service-oriented ventures specifically aimed at transgender, transsexual, and gender-diverse applicants. The implementing authority shall guarantee guidance and training for transgender, transsexual, and gender-diverse individuals interested in accessing this benefit.

Article 13.- Single Registry of Applicants. The implementing authority must create a Single Registry of Applicants in which transvestite, transsexual and transgender persons interested in applying for jobs under this law may register, in order to provide the requesting departments, as well as legal or natural persons that require it, with lists of candidates that correspond to the description of the position to be filled.

Registration in this system is not mandatory and does not constitute an impediment to accessing the employment inclusion system provided for in this law.

The Registry should only record the self-identified name, educational and work history, as well as the skills and job preferences of applicants. The implementing authority must ensure that all interested parties are able to register.

Article 14.- Confidentiality. The persons responsible for the Single Registry of Applicants and all those who intervene in any phase of the processing of personal data contained therein, have a duty of confidentiality, in accordance with the provisions of Article 10 of Law 25.326 or that which may replace it in the future.

Article 15.- No impersonation. Compliance with the employment quota provided for in Article 5, as well as access to the benefits and incentives provided for in Articles 10 and 11 of this law, may not in any case imply authorization to impersonate workers who have an employment relationship at the time of the enactment of this law, ordering their termination.

Article 16.- Participation. The implementing authority must promote spaces for the participation of transvestite, transsexual and transgender people, representing trade union and civil society organizations throughout the country linked to the purpose of this law, for the monitoring and follow-up of its implementation, and for the development of mechanisms and policies to support transvestite, transsexual and transgender people in their process of labor inclusion.

Article 17.- Coordination Unit. An Interministerial Coordination Unit is hereby created within the Executive Branch to ensure the comprehensive and coordinated implementation of this law among the agencies with jurisdiction in the matter and to monitor its progress. The Coordination Unit shall be composed of representatives from the Ministry of Women, Gender and Diversity, the Ministry of Labor, Employment and Social Security, the National Institute Against Discrimination, Xenophobia and Racism, and the Ministry of Education.

The implementing authority may include other bodies if necessary for the implementation of this law.

Chapter III

Final provisions

Article 18. Implementing Authority. The Executive Branch shall determine the implementing authority for this law. The implementing authority shall promote the design and implementation of the measures provided for in this law, ensuring that they incorporate a non-binary gender perspective in accordance with Law 26.743.

Article 19.- Sanctions. Total or partial non-compliance with this law by the responsible public officials constitutes poor performance of their duties or a serious offense, as appropriate.

Article 20.- Invitation. National Universities. National universities are invited, within the framework of their autonomy, to adhere to this law.

Article 21.- Adherence. The provinces and the Autonomous City of Buenos Aires are invited to adhere to this law.

Article 22.- Regulations. The Executive Branch must regulate this law within a period that cannot exceed sixty (60) business days, counted from its enactment.

Article 23.- Transitional provision. The execution of the obligations of the agencies and departments listed in Article 5 of this law must be carried out progressively and within a maximum period of two (2) years, counted from its enactment.

Article 24.- Communicate to the National Executive Power.

GIVEN IN THE SESSION HALL OF THE ARGENTINE CONGRESS, IN BUENOS AIRES, ON THE TWENTY-FOURTH DAY OF THE MONTH OF JUNE OF THE YEAR TWO THOUSAND TWENTY-ONE.

REGISTERED UNDER NO. 27636

CLAUDIA LEDESMA ABDALA DE ZAMORA – SERGIO MASSA – Marcelo Jorge Fuentes – Eduardo Cergnul

and. 07/08/2021 No. 47650/21 v. 07/08/2021

Publication date 08/07/2021 in the Official Gazette