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“Are you an idiot? You’re going to infect someone,” the doctor at her health insurance provider told B. B is HIV-positive and went to the emergency room with a stomach ache. The doctor started asking her about her sexual practices. It didn’t matter that B explained that, being HIV-positive with an undetectable viral load, she wouldn’t transmit the virus. The healthcare professional told her that “that’s all a lie from the WHO.” In shock and with no answer to her initial question, B filed a complaint with her health insurance provider, but the question that immediately came to mind was what else she could do. 

Since the closure of Inadi (National Institute against Discrimination, Xenophobia and Racism) by decree 696/2924, the only alternative now is the judicial one.

Those who suffer discrimination can resort to a civil suit based on National Law 23.592 . This law, enacted in 1988, requires "the discriminatory act to be nullified or its performance to cease, and the moral and material damage caused to be repaired."

 “With this type of lawsuit, you have to pay lawyers, court fees, and you must prove that not only the act itself but also the motivation or pretext was discriminatory. This is very difficult to prove, which means there is a high probability that you will lose the case and also have to pay the other party's legal fees and court costs,” María Rachid, head of the Institute Against Discrimination at the Ombudsman's Office of the City of Buenos Aires and a member of the board of directors of the Argentine Federation of Lesbians, Gays, Bisexuals and Transsexuals (FALGBT), told Presentes. 

Furthermore, the law addresses discriminatory acts or omissions based on factors such as race, religion, nationality, ideology, political or union affiliation, sex, economic status, social condition, or physical characteristics. “No pretext under this national law includes sexual diversity,” Rachid warned.

In CABA

law against discrimination (No. 5,261) was approved, whose application body is the General Directorate of Coexistence in Diversity of the Undersecretariat of Citizen Culture and Human Rights.

This department “receives reports of violence and is also tasked with prevention and education that includes a gender perspective and raises awareness about violence against LGBTQ+ people,” explained Victoria Freire, a legislator from the Frente Patria Grande party in Buenos Aires. However, she cautioned that “it is not sufficiently publicized.” 

To illustrate this lack of awareness, Rachid explains that last year the Directorate received 63 complaints, while during the same period the LGBT Ombudsman's Office received an average of 120 per month. "If the Executive branch isn't implementing the public policy established by that same law, it's useless," he stated.

Faced with this situation, legislator Freire presented the bill “Campaign Against Discrimination Against LGBTIQ+ People” on August 6. The initiative is framed within “a context in which hate speech not only exists and is recurrent, but also constitutes practices with dramatic consequences, as was the case of the triple lesbicide that occurred in our City of Buenos Aires, in the Barracas neighborhood, on May 6 of this year,” Freire explained.

Tools across the country

Meanwhile, the Ministry of Justice stated in a press release that "anyone wishing to file a complaint must do so before the courts .

In response to an inquiry from this publication, the ministry's press team stated that the ministry is "finalizing the new structure" that will absorb INADI and that more details will be available "next week." They also confirmed that the 168 hotline for receiving complaints and providing advice regarding human rights violations is currently unavailable. 

Complaints of discrimination can be made at police stations or at the offices of the Public Prosecutor's Office. 

In the City of Buenos Aires, there is a specialized Prosecutor's Office for Discrimination . To file a complaint, you can call 0800 33 FISCAL, which is available 24 hours a day. You can also file a complaint online , in person at the various guidance and complaint units, or through the "Denuncias MPF" app.

According to Article 70 of the Buenos Aires City Code of Misdemeanors, those who commit an act of discrimination can receive a penalty of 2 to 10 days of community service or between 158 and 793 "fixed penalty units." Again, if we consider the case of B with which we began this article, the only option he seems to have is a lawsuit, which under these circumstances could be very difficult to win.

Other entities that can be contacted are the LGBT Ombudsman and the Institute against Discrimination of the Ombudsman of the City of Buenos Aires and organizations that work on the issue in different localities and at the national level.

In the province of Buenos Aires, you can also go to the Undersecretariat of Human Rights if you are dealing with possible human rights violations .

One alternative recommended by activists is territorial centers like those in the province of Santa Fe, which are under the jurisdiction of the provincial Ministry of Justice. These centers employ lawyers trained in gender perspective. “They receive all kinds of complaints, and it’s not the police. They are a very good option. Generally, the process remains outside the courts, through mediation. If the incident is serious, it goes to the prosecutor’s office, and then the judicial system intervenes,” Mariana González Muñoz, president of the civil association Vox, which works in Rosario for the civil rights of LGBTIQ+ people and comprehensive care for those living with HIV, explained to Presentes.

In the rest of the country, you can also turn to the National Ombudsman's Office or the various district ombudsman offices, as well as specialized prosecutor's offices or police stations.

“Today we have these resources in the face of the dismantling and dismantling of the State, the layoffs, and the elimination by decree of agencies that were won through struggle. We have the work and the history of the organizations and activists who have historically worked towards a more egalitarian society. It is a dream and a struggle in which we will not give up,” Freire emphasized.

The place that Inadi had

“What most people need when they come to file a complaint is for the discrimination to stop,” Rachid shared. In this way, the intervention of a national agency like INADI, with the goal of having a prosecutor contact the person or entity being reported, often led to a solution without having to resort to criminal proceedings. 

The possibility of direct intervention by INADI “generated very interesting things,” Rachid stated. In this regard, he recalled when soccer player Bichi Fuertes, during a match, called another player the word “mongoloid” as an insult . After complaints from organizations of people and families with Down syndrome, the player held a press conference and produced public service announcements raising awareness about the harm such actions can cause to others. All of this, Rachid explained, occurred not from a punitive standpoint, but rather through constructive dialogue among all parties.

The INADI intervention also provided an opinion that, while not legally binding, constituted an additional tool when pursuing legal action. “You have a better chance of not losing the case. With the opinion, many people went to court to stop the discriminatory act and obtain compensation,” Rachid explained.

“It functioned primarily as a way to bring a very big problem—discriminatory acts—to the forefront of discussion and political life. However, acts of violence continue today,” explained González, president of Vox.

People who have suffered discrimination often prefer not to report it. “It’s very difficult to file a formal complaint regarding discrimination cases, so much so that people living with HIV choose not to report it for fear of the violence we might face at a police station,” explains Walter Hakanson, president of the Argentine Network of Positive Youth and Adolescents (RAJAP) .

“INADI was a safe space for LGBTQ+ people,” he says, adding that in both Corrientes and Chaco, the agency, which was eliminated by the government, is no longer accepting complaints. He adds that “bureaucracy and institutional violence discourage people from filing complaints at a police station.”

In these cases where the spaces that are still in place, instead of properly receiving complainants, tend to revictimize them, the work of organizations is fundamental: "we are the ones who confront the violation of rights and accompany them throughout this exhausting process," explains the president of RAJAP.