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The discussion about housing trans people in prisons is not new, nor are strategies by conservative sectors to overturn our rights. 

A series of controversies arose following a case of sexual abuse in a prison and the request by the leader of the Los Monos drug gang in a Santa Fe prison to change gender. On November 26, 2024, Minister of Security Patricia Bullrich spoke of zero tolerance for those seeking to change their sex in prison. President Javier Milei stated that "prisoners will not be able to request a change of sentence under the umbrella of gender identity."

Since the passage of the Gender Identity Law in 2012, we have seen a material and symbolic change in the lives of transvestite and trans people in our country. With much progress still to be made, reality shows us that this law, along with a series of implemented public policies, makes a difference. Transforming the lives of trans people through organization, politics, and rights is possible.

Nothing new under the sun

The gender binary that still governs institutions, their architecture, and their bureaucratic administration permeates us. Our binary way of thinking and organizing the world also does. In this context, and by reproducing mandates, stereotypes, discrimination, and violence, there have been concrete attempts to discredit and delegitimize our National Gender Identity Law and to deny and eliminate trans people.

Some argue that this law creates privileges. This argument has led to the viralization of cases involving cis men who change their ID numbers from male to female in order to "retire early," from 65 to 60, in order to obtain mitigating circumstances for crimes of femicide, sexual violence, or gender violence.

At the same time, the legitimate use of the law by trans people, for example trans athletes, is argued as a strategy to gain advantages. It seems that desire and self-determination are not enough. The idea of ​​vulnerable groups and their exploitation to obtain rights is also not new . They get pregnant for a plan, they have children because of house arrest, for the "benefits," and now they "become trans" to change cells . Or, as the newspaper La Capital mentions, to make detention conditions "more lax." As if being a trans person in prison didn't entail greater violence. As if prison hadn't cost countless trans people their health, their bodies, and their lives in our country and in prisons worldwide.

Situation of confinement and real problems

With a national government that denies gender-based violence, that votes against addressing violence at the United Nations, that eliminates and defunds institutional structures and public policies that favor women and LGBTI+ people, and that also wants to go against the non-binary national identity card (DNI), none of this should surprise us. Heavy-handed, repressive measures: against prisoners, students, and retirees. What they call zero tolerance and the increase in cruelty on the streets and in prison are some of the guiding principles of ideas and actions with which they manage their political, economic, and cultural project. 

To date, they have said nothing, and surely will say nothing, about the structural problem of torture in prison . Nor about the sexual abuse committed among detainees themselves, but also by police and prison staff. Nor have they been concerned or concerned about ensuring regulatory frameworks inside and outside the prison. 

For the tribune

The government of Javier Milei and the libertarians have a remarkable capacity to address the visceral. Without mincing words and with intelligent ignorance, they churn our stomachs, set our intestines on fire, and produce turmoil, chaos, but also meaning. From those who see their emotions or thoughts reflected in this and are then emboldened and reaffirm themselves and join the right or fascism, to those of us who are outraged and can't believe how far back the discussion has to go. Specifically, their strategy works for them on several fronts.

The hatred and uproar surrounding the rights of detainees is more than enough to scupper votes or generate social panic. If we add to that the fact that they are trans, the right has a spectacle they can use to generate controversy and outrage, while attacking national law and the rights of trans people. Let them not disrupt us, let them not distract us. Alba Rueda also recently warned in a report for Agencia Presentes: this government seeks to overturn the National Gender Identity Law.

Without clear rules

The problem of housing trans people in binary prisons is not new. 

In procedural terms, there are no clear rules on where LGBTI+ people, and particularly transvestite and trans people, should be housed. The Yogyakarta Principles tell us that detainees should be asked where they think they would feel safest. All very well, that may work in exceptional cases, but with the overcrowding, overcrowding, and cruelty in our prisons and criminal justice system, this rule in Argentina still cannot be implemented. There is no ward or safe place in prisons for trans people. The best strategy is one that mitigates confinement, one that creates alternatives to prison.

Sexual diversity wards have been created in both the federal and provincial systems. Generally, trans women are housed in men's prisons . These sexual diversity wards are often shared with cisgender men convicted of sexual violence.

Until 2015, for example, the sexual diversity ward at the Sierra Chica prison in Olavarría was called "for passive homosexuals and crimes against sexual integrity." If we go back further, the first provincial decree organizing the housing of penal units in the province of Buenos Aires already referred to specific places for "homosexuals and perverts." The assimilation of homosexuality and sexual assault as deviant behaviors is long-standing and finds a specific form of accommodation in confinement. Let's thank the fields of criminology, health, and mental health.

Dangerous ideas

Trans men tend to remain invisible, unregistered. Generally, they are housed in women's prisons. The goal—again, stereotypes here—is to "protect" them from cis men. Even if the justice system or prison services say otherwise, they are interpreted as women because the only "identity" the prison administration considers is genital. In this way, the violence that occurs in "women's" prisons, whether perpetrated by prison officers or by cis women inmates, is also denied and ignored. Trans men who have undergone hormonal or surgical body modification end up in punishment cells or solitary confinement, also in women's prisons. 

There are those who argue for the need to create prisons specifically for LGBT+ people. In fact, it may be one of the next steps the national government attempts. This idea is dangerous and harmful. More prisons means the growth and expansion of the punitive system and also the prison system. In other words, those prisons must be filled. More prisons, and prisons specifically for diversity. More trans people detained, criminalized. We must reject all of this.

Without rights 

Prisons are a way for us to organize ourselves, to hold those who have committed harm accountable, or at least that's what our legal system dictates. Prisons are a public policy that restricts the freedom of movement of people whom the State also undertakes to care for and "rehabilitate ." The multiple reports of torture, ill-treatment, deaths in confinement, and serious health deterioration among prisoners are not the exclusive domain of any government, but they do lift the veil and show us that a significant part of this system does not work and is often unjust and disproportionate.

In reports from international organizations, first and second instance rulings, the Supreme Court, and the Supreme Court, the violation of rights in prison is documented and recognized. The deaths of multiple trans people in prison and the efforts that institutions such as the Commission for Memory, the committees against torture, the Penitentiary Prosecutor's Office, the Yo No Fui Collective, and activists and academics have been making, highlight the specific forms of death of trans people in prison. Don't let them fool us; or Conan. The national government's strategies are an attempt to undermine our National Law, to exacerbate the stigma and criminalization of detainees, but also of trans people.

Will Patricia Bullrich be the one in charge of scanning the bodies of those who identify as trans people during the incarceration, one by one? Does she know that this is prohibited by national law? What's really happening with the situation of trans people in detention and their rights? Of those who died, of those who are going to die... Will Javier Milei seek to render our Law 26.743 inapplicable in incarceration contexts? With what legal arguments? Will he perhaps seek to modify the practical application of the law through a DNU?

Approaching the discussion of the National Gender Identity Law from the perspective of incarceration puts us in a more complex and uncomfortable position. In fact, writing about this topic without fear of erasure and without being able to analyze the multiple layers and problems that articulate and arise is also very difficult. Diversity makes us human. Let's rethink how to have these discussions in public, in politics, in the media. Without making concessions, also understanding the dispute over the concept of security at the social level. For the right of people to live safely, without fear but also without hunger. Let us not be defeated by our guts. Let us be defeated by our struggles, our history. The strength of our movements.

César Bissutti is a queer activist, lawyer, teacher, healthcare worker, and anti-prison activist.