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The debate about housing transgender people in prisons is not new. Nor are the strategies used by conservative groups to undermine our rights. 

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

Since the Gender Identity Law was passed in 2012, we have witnessed a material and symbolic shift in the lives of transgender and transvestite people in our country. While there is still much to be done, reality demonstrates that this law, along with a series of implemented public policies, makes a real difference. Transforming the lives of transgender people through organization, political action, and rights is possible.

Nothing new under the sun

The gender binary that still shapes institutions, their architecture, and their bureaucratic administration permeates our lives. So does our binary way of thinking and organizing the world. It is within this context, and by reproducing mandates, stereotypes, discrimination, and violence, that 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. Using this argument, several cases have gone viral of cisgender men changing their ID cards from male to female in order to "retire early," from 65 to 60, to obtain mitigating circumstances in femicide, sexual violence, or gender-based crimes.

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

Lockdown situation and real problems

With a national government that denies gender-based violence, votes against addressing it at the United Nations, eliminates and defunds institutional structures and public policies in favor of women and LGBTQ+ people, and even opposes non-binary ID cards, none of this should surprise us. A heavy hand, repression: against prisoners, students, and retirees. What they call zero tolerance and the increase in cruelty on the streets and in prisons are some of the key principles guiding their political, economic, and cultural project. 

To date, they have said nothing, and surely will say nothing, about the structural problem of torture in prisons . Nor about the sexual abuse committed among detainees themselves, but also by police and prison staff. They have also shown no concern or concern for guaranteeing legal frameworks inside and outside the prison. 

For the stands

The government of Javier Milei and the libertarians have a remarkable ability to appeal to our deepest emotions. With bluntness and a kind of intelligent ignorance, they stir our stomachs, make our intestines burn, and create unrest, chaos, but also a sense of purpose. This appeals to everyone from those who see their own emotions or thoughts reflected in their rhetoric and are emboldened to reaffirm their right-wing or fascist leanings, to those of us who are outraged and can't believe how far back we have to go in this discussion. In short, their strategy works for them in several ways.

The hatred and uproar surrounding the rights of those detained is more than enough to alienate votes or generate social panic. If we add to that the fact that they are trans, the right wing has a spectacle that serves to generate controversy and outrage, while simultaneously attacking the national law and the rights of trans people. Let's not be destabilized, let's not be distracted. Alba Rueda recently warned of this in an article for Agencia Presentes: this government seeks to dismantle 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 feel safest. That's all well and good; it might work in exceptional circumstances. But with overcrowding, overpopulation, and cruelty in our prisons and criminal justice system, this rule cannot yet be implemented in Argentina. There is no designated wing or safe space in prisons for trans people. The best strategy is one that mitigates confinement, one that creates alternatives to prison.

Both the federal and provincial prison systems have established LGBTQ+ wings. Generally, transgender women are housed in men's prisons . These LGBTQ+ wings are often shared with cisgender men convicted of sexual offenses.

Until 2015, for example, the LGBTQ+ pavilion at Sierra Chica prison in Olavarría was called the "pavilion for passive homosexuals and those convicted of crimes against sexual integrity." Going back further, the first provincial decree regulating the accommodation of inmates in the prisons of Buenos Aires province already referred to specific areas for "homosexuals and perverts." The assimilation of homosexuality and sexual aggression as deviant behaviors is long-standing and finds a specific form of accommodation in incarceration. We owe this to the fields of criminology, health, and mental health.

Dangerous ideas

Trans men often remain invisible, unregistered. They are generally housed in women's prisons. The objective, again based on stereotypes, is to "protect" them from cis men. Even if the justice system or prison services say otherwise, they are perceived as women because the only "identity" the prison administration considers is genital. In this way, the violence perpetrated in "women's" prisons by female prison officers or cis women incarcerated there is also denied and ignored. Trans men who have undergone hormonal or surgical body modification often end up in punishment cells or solitary confinement, also in women's prisons. 

Some argue for the need to create prisons specifically for LGBT+ people. In fact, this may be one of the next steps the national government attempts. This idea is dangerous and harmful. More prisons mean an increase and expansion of the punitive system and the prison system. In other words, these prisons have to be filled. More prisons, and prisons specifically for LGBTQ+ people. 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 establishes. Prisons are a public policy that restricts the freedom of movement of people whom the State also commits to caring for and "rehabilitating ." The numerous reports of torture, mistreatment, deaths in prison, and serious deterioration of the health of incarcerated individuals are not unique to any one government, but they do lift the veil and show us that a significant part of this system is dysfunctional and often unjust and disproportionate.

Reports from international organizations, first and second instance rulings, and Supreme Court decisions document and acknowledge human rights violations in detention. The deaths of numerous trans people in detention, along with the ongoing efforts of institutions like the Commission for Memory, committees against torture, the Penitentiary Ombudsman's Office, the "I Wasn't There" Collective, and activists and academics, highlight the specific ways in which trans people are killed in detention. They can't pull the wool over our eyes; not even Conan. The national government's strategies are an attempt to undermine our National Law, to intensify the stigma and criminalization of detainees, and especially of trans people.

Will Patricia Bullrich be the one to scan, one by one, the bodies of those who identify as trans in prison? Is she aware that this is prohibited by national law? What is really happening with the situation of detained trans people and their rights? With those who have died, with those who will die… Will Javier Milei try to render our Law 26.743 inapplicable in prison settings? With what legal arguments? Will he try to modify the practical application of the law through an executive decree?

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 being canceled and without being able to analyze the multiple layers and problems that intersect and arise is also very difficult. Diversity makes us human. Let's rethink how to have these discussions in the public sphere, in politics, in the media. Without making concessions, while also understanding the struggle over the concept of security at a social level. For the right of people to live safely, without fear, but also without hunger. Let's not let our gut feelings win. Let's let our struggles, our history, and the strength of our movements win.

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