Argentina: Act Now To Support The Right Of Transgender People To Education

SUMMARY

For the last three years, transgender activist Lohana Berkins has been attending a night school in order to obtain a high school certificate. She has been accepted by peer students and teachers alike, and has even facilitated a few informative workshops on gender identity issues to educate her school community on the issue. But the school Principal refuses to address her on the name of her choice and also to extend school certificates under that name. Argentinean laws do not allow for sex-reassignment surgery and transgender people who had received operations abroad usually have to go through painful legal processes in order to obtain a name change -and in many cases these are not granted. Ms. Berkins is pushing for school recognition of transgender people's chosen names, the ones they have been using on a daily basis for years (and even decades), not only for herself but for the many transgender people-young and mature- that are currently studying in Buenos Aires schools and facing the same obstacles.

Ms. Berkins submitted a complaint to the city's ombudsman office, that supported her request and is urging authorities to validate the identity Ms. Berkins feels as her own.

ACTION

IGLHRC joins transgender organization ALITT (Fight for Transvestite and Transsexual Identity Association) in calling for letters to the authorities of Buenos Aires urging them to protect Lohana Berkins' right to education and to a name

Please send your letters to:

Secretary of Education
Buenos Aires City
Lic. Daniel Fernando Filmus
Av. de Mayo 525
Buenos Aires, Argentina
Fax (54 11) 4339-7785
Email vviviani@buenosaires.gov.ar
Buenos Aires City Council for the Rights of Children and Adolescents
Diagonal Norte 547, Piso 6to.
Buenos Aires, Argentina
Fax" (54 11) 4331 3232 or 43 31 32 97
Escuela Normal Superior Nro. 3 (High School # 3)
Bolívar 1235
Buenos Aires, Argentina
Attn: Principal Mr. José Luis Delmonte
Fax (54 11) 4361-0424 or 43 61-8965 (when somebody answers, ask "Por favor, déme señal de fax"
Email ensriva@capital.rsfdc.edu.ar

And please send a copy to:

Buenos Aires City Ombudsman
Ms. Alicia Oliveira
Venezuela 842
Buenos Aires, Argentina
Fax: (54 11) 43 38 49 00 ext. 7659
Email: despacho@defensoria.org.ar / defensoria@defensoria.org.ar
ALITT lohanaberkins@hotmail.com

SAMPLE LETTER

Mr. José Luis Delmonte
Principal
Escuela Normal Superior Nro. 3
Buenos Aires, Argentina

Dear Sir,

We write to you in support of Resolution No. 4627/02 issued by the Buenos Aires City Ombudsman Office on September 6, 2002, by which it urges you to recognize the right of transgender student Lohana Berkins to be addressed by her name of choice and to have school certificates issued under that name.

As you very well know, the right to education is a fundamental right protected by the Buenos Aires Constitution (Article 23), the National Constitution (Article 14) and international human right treaties ratified by Argentina, such as the Universal Declaration on Human Rights (Article 26), and the International Covenant on Economic, Social and Cultural Rights (Article 13). Moreover, the Buenos Aires Constitution consecrates the "right to be different" (Article 11), protecting those whose identities differ from the majority against any form of discrimination, in concordance with standards set by the United Nations Committees on Human Rights (1994) and on Economic, Social and Cultural Rights (2000).

When international human right instruments, as well as the Buenos Aires Constitution, refer to the right to education, they explicitly define the aims that the educational process must achieve: "Education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms… Education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship …" (International Covenant on Social, Economic and Cultural Rights, Article 13.1).

In order to fulfill those goals, schools need to become places where racial, linguistic and sexual diversity are acknowledged and respected. When they are not, the result is that students from minority or marginalized groups drop out to avoid discrimination, mistreatment and violence that the school perpetrates and/or condones. And their exclusion from access to work and full participation in society is reinforced.

For transgender people, the name they have chosen is a key and very basic component of their identity. It is very unlikely that they will feel safe in a place where that is not respected.

We urge you to take all necessary steps so that Lohana Berkins and other transgender people that might come to the school you manage in the future are given all due protections so their right to education might be enjoyed. To do so, will benefit not only them but also the whole school community, as it will serve as a practical way to teach values like respect towards diversity and equality for all.

Sincerely,

(Your name, organization and address)

BACKGROUND

The Buenos Aires Ombudsman Office has been supporting the local transgender community for many years. In 1999, the Office and the transgender organization ALITT produced a "Preliminary Report on the Situation of Transvestites in Buenos Aires City" (Informe Preliminar sobre la Situación de las Travestis en la Ciudad de Buenos Aires). According to that report, 50% of those surveyed did not go beyond partial completion of high school, while 19% had completed only their primary education. Two-thirds of the sample expressed the desire to continue or finish their formal education. The main reason for wanting to do so was the hope to find employment other than sex work, the occupation declared by 80% of the sample. "Fear to be discriminated against" and "Lack of money" were the two most frequently mentioned obstacles to continue/finish their education.

The Buenos Aires Council for the Rights of Children and Adolescents (Consejo de los Derechos de Niños, Niñas y Adolescentes de la Ciudad de Buenos Aires) has recently taken an interest on the situation of transgender children and teenagers. After working with experts and with adult transgender activists, the Council has set priorities for its work on these issues. One of its first priorities has been to develop a program to promote the incorporation of transgender teenagers into the City night schools, in order for them to finish their high school education.

The fundamental importance of social recognition of the chosen name for transgender people has been highlighted on several occasions by judges that authorized legal name changes both in Latin America and Europe. To provide two examples:

When the change in legal documents " … is requested in order to achieve the subject's psychophysical wholeness and the definition of his identity, such request falls among the scope of the right to health, recognized by the Santa Fe Constitution in Article 19, Article 5.d.iv of the International Convention on the Elimination of All Forms of Racial Discrimination, and Article 5 of the San Jose de Costa Rica Pact" (Civil and Commercial Court No. 4, Rosario, Santa Fe, Argentina - May 21, 1999).

"A judge's political function is to look for solutions that are satisfactory to the individual, without damaging the group with which he lives. A judge's answer must tend to eliminate discriminatory provisions such as those that look to uphold, against the evidence that even an innocent child would admit, the mistake about the conceptualization of a transsexual person's prevalent sex. … The State trusts that the legal system will be able to find a honorable way out and it must assume a position that values the achievement of happiness…" (Judge Santarelli Zuliani, Civil Appeal n. 052.672-4/6, Sorocaba, Brazil).

IN THE LAW

Right To Be Free From Discrimination And Right To Equality Before The Law

Article 11 of the Buenos Aires City Constitution states that "Every person has identical dignity and all are equal before the law. The right to be different is recognized and guaranteed. No discrimination that tends to segregate people based on or under the pretext of race, ethnicity, gender, sexual orientation, age, religion, ideology, opinion, nationality, physical features, psychophysical, social, economical condition will be acceptable. The City promotes the removal of any kind of obstacles that, limiting equality and freedom, impede the full development of the person and his/her effective participation in the political, economical or social life of the community" (as per the 1996 Amendment).

Protected by the Universal Declaration on Human Rights (Articles 1, 2 and 7); International Covenant on Economic, Social and Cultural Rights (Article 2.2); the International Covenant on Civil and Political Rights (Article 2.1 and 26)' Convention on the Rights of the Child (Article 2.1) and the American Convention on Human Rights (Article 1.1 and 24)

The United Nations Human Rights Committee affirmed in its decision in Toonen v Australia (1994) that existing protections against discrimination in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) should be understood to include sexual orientation as a protected status. Numerous other human rights mechanisms of the United Nations have subsequently condemned discrimination based on sexual orientation. The UN Committee on Economic and Social Rights has made a similar observation, in its General Comment 14 on the right to health- to be applied to all economic, social and cultural rights.

Right To Education

Protected by Article 23 of the Buenos Aires Constitution and Article 14 of the National Constitution (as "the right to teach and learn").

Protected by the UDHR (Article 26), the ICESCR (Article 13) and the CRC (Article 28 and 29)

Right To Participate In The Cultural Life Of The Community

Protected by the UDHR (Article 27) and ICESCR (Article 15.1.a)

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