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The word “gender” appears only once among the 366 articles published today in the Official Gazette and announced last night on national television by President Javier Milei as part of an emergency decree (DNU) that eliminates more than 300 laws without the approval of Congress. This decree, which jeopardizes democracy, sparked demonstrations and pot-banging protests throughout the country, centered on the National Congress in Buenos Aires, where thousands of people gathered in the early hours of the morning. Despite mentioning the word “gender” only once, the decree as a whole disproportionately affects women and LGBTQ+ individuals, as they are among the most vulnerable sectors of society. Furthermore, it endorses workplace discrimination.

The mention of gender in that 89-page document, titled “BASES FOR THE RECONSTRUCTION OF THE ARGENTINE ECONOMY – Decree 70/2023,” which, among other things, dismantles labor legislation, coincides with the only other mention of discrimination. This mention is found in Article 245 Bis, which amends the Employment Contract Law (20744) regarding discriminatory acts.

The article published in the Official Gazette states verbatim: 

ARTICLE 245 bis.- Increased compensation for dismissal motivated by a discriminatory act. Dismissal shall be considered as an act of discrimination when it originates from reasons of ethnicity, race, nationality, sex, gender identity, sexual orientation, religion, ideology, or political or union opinion.

In this case, the burden of proof will fall on the party invoking the cause, and in the event of a court ruling that corroborates the discriminatory origin of the dismissal, the payment of a special aggravated compensation will be due, amounting to 50% of that established by Article 245 of Law No. 20,744 (to 1976) and its amendments or the compensation for seniority of the special regime applicable to the case.

Depending on the severity of the offense, judges may increase this compensation up to 100%, in accordance with the parameters mentioned above. The compensation provided for in this article may not be combined with any other special regime that establishes increased compensation. In all cases, the dismissal will terminate the employment relationship for all purposes.

What does this mean? 

“Basically, what it does is validate discriminatory acts,” Leandro Recalde, a labor lawyer, explained to Presentes . “What it does is assign a price, penalize discriminatory acts with a fee. And that fee is lower, because it's 50% of the severance pay, and the judge can discretionally raise it to 100%. But you're still validating it. At the same time, what they're doing is a discriminatory application of the anti-discrimination law. That is to say: it's applicable to everyone except if you're a worker. If you're a worker, you can be discriminated against for political reasons, union affiliations, gender, or whatever,” he describes.

Furthermore, that article implies “losing the possibility of seeking reinstatement. Because the discrimination is validated. The Anti-Discrimination Law, one of the things it had, in addition to compensation for moral damages, was the obligation for the discriminator to cease the discriminatory conduct.”

“The serious problem with putting a price on discrimination,” says Recalde, “is that you make an economic assessment: is it in your best interest to discriminate or not? If you have money and can pay the compensation, you will discriminate.”

"Place the burden of proof on the person being discriminated against."

According to lawyer Melisa García of Abofem, in addition to setting a fixed compensation amount, "there's something extremely serious: it places the burden of proof on the person claiming to be discriminated against. It's asking the person in a vulnerable situation to prove they are being discriminated against." The burden of proof is reversed because normally it is the person causing the harm who has to prove they are not doing so.

What about maternity leave?

The word "woman" appears twice in the entire text, both times in Article 177, which refers to maternity leave. Although information is circulating that the leave has been shortened, the truth is that it hasn't been reduced; it remains the same. So what has changed in this article?

“What has been enabled is the possibility for women, if they so choose, to continue working until a date closer to their expected delivery date. Before, they had 30 days; now, they are allowed to continue working until 10 days before the expected delivery date. But the leave period remains the same,” Recalde explains. 

“Women are at the heart of poverty in our country.”

“Since Milei took office, all the economic measures announced have meant more inflation: devaluation, increases in energy and transportation rates. This is a very hard blow to people's wallets, where, of course, the poorest suffer the most. The core of poverty in our country is women, especially women with young children. Food prices have been rising uncontrollably, and they represent a very significant portion of these groups' budgets. Furthermore, the decree eliminates many programs that allowed access to products with price controls or maximum prices, and it also repeals the rental law, worsening access to housing,” says feminist economist Mercedes D'Alessandro.