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BUENOS AIRES, Argentina. Twenty trans women and the husband of one of them were acquitted of drug trafficking charges in a landmark ruling, developed with a gender perspective and from an intersectional approach.

Judge Sabrina Namer, a member of Federal Oral Court No. 8, considered that the defendants were in situations of extreme vulnerability. She also concluded that this had a direct relationship with the crime with which they were charged.

After the various investigations that led to the cases going to trial, the judge decided to summon the defendants to a face-to-face and collective hearing where she personally interviewed them.

During the interviews, the judge noted that the trans women and transvestites were between 29 and 46 years old. They were mostly migrants from Peru, but also from Panama and Ecuador, and had completed secondary school and even held university degrees. She also noted that almost all of them worked as sex workers, were HIV-positive, and were frequent drug users. Furthermore, few had Argentine ID cards: the vast majority had precarious residency status due to the legal case against them.

“Far from being a coincidence, the biographical repetition, each life story described is the expression of a collective history,” Judge Namer stated in the 160-page ruling, dated July 6 of this year.

Gender perspective and intersectional approach

To try to understand these experiences of the transvestite and trans community, she relied on interviews, but also on various documents. Her “compass” was “ The Revolution of the Butterflies ” (2017), an investigation carried out between 2015 and 2017 by the Public Defender's Office of the city of Buenos Aires and the Mocha Celis Transvestite and Trans Popular High School .

“Both their sexual orientation and their gender identity and expression have become vectors of oppression linked to others – nationality and migrant status, class, ethnicity, age, etc. – which in interrelation constitute a system of structural inequalities with concrete effects that have been demonstrated,” Namer argued.

The women arrived in Argentina at least 10 years ago. They left their countries of origin to escape the discrimination and persecution they faced. Many have completed primary and secondary education, have training in the beauty industry, or even have post-secondary and university degrees—like one airline pilot. However, most were unable to find formal employment. Thus, they ended up adopting sex work as a means of survival, often resorting to drug use to support themselves.

“In this context, it is no coincidence that drug dealing has been part of their means of survival, since contact with and consumption of these substances is absolutely linked to the way they practice prostitution. This emerged from all the accounts: drug and alcohol addiction as a way to cope with prostitution,” she concluded.

A context of criminalization

To support this claim, the judge relied on the report “ Drug Trafficking and Gender Perspective ” from the Office of the Prosecutor for Drug-Related Crimes (Procunar) of the Public Prosecutor's Office. The report details that the increase in the incarceration of women for drug offenses “is one of the indicators that demonstrate the disproportionate nature of the punishment,” based on gender and sexual orientation criteria. Furthermore, it states that this has “no significant impact on the spread of drug-related crime, since women tend to perform tasks of little consequence within the criminal organization.”

This report builds upon the conclusions of another entitled “Women, Drug Policy, and Incarceration in the Americas: Trans Women Deprived of Their Liberty: Invisibility Behind Walls” (2020). It considers that there has been an “intensification of the punitive burden on trans and travesti people, due to situations of extreme poverty, violence, and human rights violations.” It explains: “Trans women engage in activities within highly criminalized informal economies, such as the drug trade, sex work, or survival sex. As a result, they are profiled by the police as 'dangerous,' making them more vulnerable to police abuse and incarceration.”

A circumstance not taken into account

Judge Namer's decision differed from that of the prosecutors. Dr. Miguel Osorio requested the acquittal of three of the defendants, the dismissal of one of the cases, and the conviction of 12 others, with sentences ranging from one year and six months to four years. However, the judge acquitted all the defendants.

Regarding this, he warned that "the membership of the accused in this group is a circumstance that has not been taken into account throughout the legal proceedings."

He added: “Far from taking into account that they belong to the LGBTIQ+ community, throughout the case there was a kind of denial of that condition, evidenced systematically, for example, by referring to them through the use of masculine articles and adjectives.”

Trans women yes, police officers no

The judge noted that police officers involved in the case she was presiding over (No. 8025/2013) were also facing charges in another case (No. 861/2013) for failing to act on complaints regarding drug trafficking. Both cases, the one targeting the LGBT+ community and the one targeting officers of the 8th Precinct of the Argentine Federal Police, began in 2013. However, their progress differed significantly.

On the one hand, the people charged in the current case being judged by Namer - most of them trans women - "were deprived of their liberty, precautionary measures were issued against them regarding their assets and personal belongings, they were prohibited from leaving the country, their identification documents were withheld and their residence permits were suspended or canceled. They were investigated, prosecuted and brought to trial." 

In contrast, case 861/13—which is trying the police officers—"is still in its initial stages." The defendants were only questioned in 2015. Seven years later, "no ruling has been issued to determine their legal status. They have not been formally charged, nor have they been acquitted. Nor have they been found guilty of insufficient evidence. They have not been deprived of their liberty, nor have any precautionary measures, either personal or financial, been imposed on them," the judge warned.

Social transvesticide

In the seven years since the start of the legal proceedings, two of the defendants died in 2017, at the ages of 28 and 29. Namer's ruling highlights a key element in understanding the short life expectancy of the trans community, which hovers around 40 years: social transvesticide. 

“Together we constructed the political idea of ​​social transvesticide. We mean that the deaths of trans women are systematic and encouraged by the system. Furthermore, they don't only occur through direct physical violence, but also in other contexts where they can happen more indirectly,” explained activist Florencia Guimaraes in an excerpt from “Stop Transvesticide,” quoted by the judge.

“A landmark case like this was needed. It crowns this period of progressivism with new laws and new politics. It’s very important for us,” said trans activist Marcela Tobaldi, president of the La Rosa Naranja . This organization has supported several of the women charged in the case throughout the pandemic and continues to do so today.

Background

In April 2019, the National Federal Criminal and Correctional Court No. 7, presided over by Judge Sebastián Casanello, dismissed the case against five transgender women accused of violating drug laws . The court determined that, due to their gender identity, they lived in a situation of extreme vulnerability and lacked access to basic rights.

This was a landmark decision by the Argentine justice system, which acknowledged the "excusable necessity" under which the defendants acted. It also recognized the lack of rights faced by the trans and travesti community.  

The prosecutor who issued the ruling to dismiss the charges against the women was also the one who sought to dismiss the charges against a 36-year-old trans woman for the crime of small-scale drug dealing in September 2019. This is Franco Picardi, head of Federal Prosecutor's Office No. 5. The doctor considered her to be "a survivor in a state of excusable need and lacking access to basic rights."

He also requested, in both cases, that the responsibility of higher-ranking individuals be investigated. He argued that criminal prosecution should focus on the largest criminal structures, rather than criminalizing the most vulnerable.