G.N.B. v. the Government of the City of Buenos Aires, 2015

Abstract

In February 2015, in what appears to be the first of its kind, a judge in Buenos Aires awarded a transgender woman a public pension in recompense for harms wrought upon her “as a result of the discrimination and the institutional violence—of a general, constant, and direct nature—permitted by an absent state and promoted by police officers” (G.N.B. v. GCBA). The judge, Victor Trionfetti, ordered the City of Buenos Aires to pay the woman, identified as Ms. G. (Sra. G.), a monthly allowance equivalent to the minimum living wage, which in 2015 was $4,716 pesos. Ms. G., who was sixty-one at the time of this ruling, had expressed a female gender identity from an early age and left home at nine. She had been raped and tortured by police and prison guards on numerous occasions, had been denied care in hospitals, and, because of discrimination due to her gender identity, had been unable to find formal employment. In her brief, Ms. G. stated that, as a result of her transgender status, she had spent about half her life in prison and the other half living on the street as a sex worker. She eventually left sex work to labor as a seamstress. As a result, she has no pension or financial resources of any kind. Ms. G. sued the government of the City of Buenos Aires for damages.Although the pension was awarded only to Ms. G. and not to all trans people, and the judge's decision sets no precedent and is currently under appeal, the case is among the first of its kind anywhere to provide reparations to a trans person for the damage caused by state-sponsored violence and the abrogation of a government's duty to protect. The argument of Ms. G. mirrors the rationale for proposed legislation in the City of Buenos Ares and the Argentinian National Congress, which would award pensions “to those who have been deprived of their liberty for reasons related to their gender identity as a consequence” of actions taken by officials in the criminal justice system (G.N.B. v. GGBA).In 2012, Argentina passed the Gender Identity Law (Global Action for Trans* Equality 2013), which Judge Trionfetti describes as “a turning point” in the recognition of trans people. In his decision, the judge relied on the reports of advocacy groups documenting violence and discrimination and the testimonies of witnesses at the trial to find that discrimination and violence directed at trans people is a generally accepted fact. By doing so, he shifted the burden of proof from Ms. G. to the city government. The city responded by simply—and lazily, according to the judge—denying these facts and provided no evidence to counter Ms. G.'s claim. Trionfetti acknowledges that the nature of Ms. G's claim exceeds the traditional standards of tort law. While the law as a tool is insufficient, the language of the decision expands the realm of what might be possible in the process of reparation. The judge characterizes the harms suffered by Ms. G. as part of the “structural nature of her stay in the world.” The damage “is not the result of a particular event, but rather part of a continuum. . . . It is a damage that is endured by the ‘sheer boldness’ of establishing oneself as an autonomous Self in front of others.”Translator's note: In the translated excerpts below, Ms. G. is identified as the applicant, and the Government of the City of Buenos Aires is referred to as GCBA or as the respondent. All the notes are those of the judge, and they appeared as footnotes in the original text. Citations of case law and legislation have been omitted. The numbers for section headings have also been omitted.. . . .As with most judicial cases, the conflict that I must resolve here focuses on the legal situation of the parties. However, I would be guilty of cynical shortsightedness if I were to consider the situation posed by Ms. G. as a legal drama that only concerns her as an individual. The particular facts of the case, the evidence provided by the witnesses, and the other evidentiary elements introduced in this suit demonstrate that the applicant belongs to a group that has been systematically and viciously discriminated against.To my mind, the nature of this claim exceeds the standards of “tort law” as understood by the civil or administrative legal doctrine, and are to to the of the of groups as the the applicant belongs has been in to this group and has a in the or people its or of groups to and to to an that not to to in which of the of of and the and of be at the of the that from to public and from they be understood and this case only from the proposed of legal would to an result of . . is that Ms. G. is and to be a trans The has not this and the witnesses this It is to this because the of the claim in the of the to gender identity, an of the of the and is an that the of on or or gender identity a and of to the . . of in to of and gender identity, the case of the applicant, are and and of of and and discrimination in to the of other to the . . of of groups is that to the of Law as the Identity . . the of to as the trans is not possible to the about which with on and to which has been no of a in of the which have to a to claim on the and for the of of the individual. . . . It be that people to the that the not only discrimination but have been in and As a result of and discrimination that of are to in by the that to the most of the with for their of life and that all of which is in decision suffered by the is that are to this in the of the and the other under the of the of the City of Buenos with to the of this In the case of the National Congress, the to a pension to those who have been deprived of their liberty for reasons related to their gender identity as a of actions of judicial or actions by the public or In the of the city of Buenos Aires a Law for has been It to the and of the and of trans people by a monthly for transgender people the age of The reasons for are proof of the and of by or the of trans people and the of and on a result in an of that trans of life and from any of any kind of life It be that the of the Gender Identity Law is a turning and the of an of the to be to is also to any kind of these I among the provided by the Gender Identity Law and to for in Argentina in with trans The possible to the situation of these and the of the Gender Identity Law and that and of trans people of their and that the trans is in a because of and the of the Gender Identity Law a on their and of In the that these are that of the trans people the and at of their but no to is in of the that the of and other as and in the of trans due to the of sex work in this It also the for public to this that for these people to public care is that trans people at the process of their a case in is in to The that of the trans the to their due to the of to public the notes is a among trans in Argentina to to the of the according to this had of a of those they have or guilty to the testimonies and at in their However, the notes that the of is among trans and the situation of this particular group as of trans have to and from and because of their gender identity, these have the of Law are by the of living of and discrimination of and for the and discrimination suffered in the is from the trans people that from administrative and other as of also in the in the for to in the and by the is also It by the of of these groups and with the of Law in which the of the in trans people and of these were the of and . . to the provided by the the to in the and and public discrimination the of and in the The were and government actions in public hospitals, and discrimination of not to labor an of or direct by on or in the and of is in by the people because of their or gender on the of the of the in of by their of the of as to people the of a discriminated because of his on are are by in of at by of the to be at the of their among other the only the on the and of people. people Ms. G., for life was a As a result, the with the state and its was with and of their an of the be understood that the by Ms. G. is as the state that the to the of the applicant are and the applicant, who is and have the burden of that her and life were by the of the not have to they are the not have to their violence not have to they are in to the burden of proof to the applicant would only result in of the people not their I that trans people, as of an not have the burden to that they to that group judicial to their to be . . the other is not for the in its as of at to simply—and the facts that the has It must be that of to justice are the evidentiary standards and that to their situation to the are in which of is not in of the but in a The process with the to in labor cases, law or criminal a from the of in of the consider the evidentiary of the respondent. . . . In the was stated that is not understood the GCBA is to any of the by the It be that the gender identity of the applicant was not by the but the I have as a generally are as It from the of the that the applicant a The facts and the demonstrate to the testimonies of the witnesses at the on . . is a woman and she the She stated that the applicant was deprived of her liberty on and to the at the time the police She that were of that their were in the and She that was for to or with people of the was for in which the person to the as by their prison was The by police the of in and not would the that by a street they would be a police and to a that as as she the applicant had no formal she stated that they other by and not public because they would the of not with their because they be to be had to with the person to of the stated that they in was to have any kind of as they not stated that the of the applicant was sex She that the applicant a formal “as they all had at She stated that was to find a formal to all the the the on any in to be a The she to and to that were of a person as a She to the in public but that, currently they her identity, are in which an to their expressed that she was Ms. G. any pension or financial or if she her She that on they she that the applicant not or She stated that the applicant not have because she to public hospitals, and that in public She that or in to the what government violence on Ms. G., and the that was the the time of the to the time of the of She that the of the Gender Identity they to have to that were law to and She stated that trans to but sex because they find She to be a but was not a of her situation and that of the trans the was about her . . . she the that I a in language and a in and due to the of all by a woman in the and not any identity I not any my is . . . and with that I and The are in the stated that the applicant was deprived of her which they all were at . . . She also referred to the and the situation of of the All of her or the applicant, who had been in the to and in The police that the most were the numbers and were the most they would be for to She stated that was because to be what to be and what were to . . . by the was the she stated that under she was in or She was the City of Buenos that she has in this city in her the would to to and a because I not in living this the endured in police she in the to which they were would and that were and the of the police She stated that she was in the police for and was not she had to in was to sex and She that G. was deprived of her liberty on in the prison of and she this was because of her the applicant had any formal the that this was that of She that she has a and was a for the of of her with the who to her because of her gender The of any to because that would result in their . . . In my case, I was was the would and for work and they would this to for a or I would be discriminated by my or or that the was if she what was the of the applicant, she and she that in a the that and I this with my to be raped in of or and at the a by an absent by the of that the applicant no state allowance or financial but she for because she a monthly of pesos. She about her and that was by The referred to the that the applicant had no She the for an allowance or of state because of her of were that of a and the judicial she was her my I in these she to have suffered discrimination in public and had to because of would to on the to the of the her to the endured and the a a in and of a that would not have in the first had the its other of is to the state provide to a person who has suffered of violence and discrimination to or what actions or were by the state the of G. the harms and by are in the nature of her stay in the and as a she had to in a and with an state that and her gender It is not about the in the of the of in that the of the they they the of a from the to the and suffered by the applicant are not or is damage to the that is all and It is not the result of a particular is part of a continuum. damage has no or because is a damage that is endured by the of establishing oneself as an autonomous in front of damage not from in the first rather what is is be state that the the the and and that are due to the of and actions to and the of Ms. G. in a of of the state is on the of of Ms. her is and that the state of the that are this judicial the in to the of the applicant and to the and that the of the applicant, find of The of life of transgender is and the with in a that and gender However, the damage that of the people, of their the applicant discrimination for the applicant an to the she life with of life the life of Ms. G. with of and of her of and of the was the of the applicant by the violence by and of the damage by Ms. G. her life as she was with in the process of her her of in her to her applicant has a that those who not and is to consider The of the applicant has been a this not be damage is to a or an by law is is the the or with of the and which in of this and as an of the of is by the as as the of the witnesses, that a situation of and discrimination the applicant because of her gender her as a trans I to that the discrimination endured has been of a nature and from and institutional The proposed witnesses as as the reports by also this which the of the damage by Ms. of legal system is by the and the the of their of the National and and of the on the Law of state is by its in to the of the applicant in a of to this is from the of with that gender identity, and of the an because in all or that is to that gender identity to and of which or not with the sex at the of the if of or by or other and other of and identity, is related to the and of the The to is of and in the to to to and due to the and of all on the due to the and of the legislation and the standards were and among of the of the and of of the of the of a of in the and of the of and of the on and of the and and of the as as and of the National the duty on all judicial of the of the on and in particular the duty to to the standards of and of the of I must the case of in which the has that of the is a of a to all the of the and the of the state to and the and of the and any is to the or any that be the of any of the in the is with . . . the of the law and the has stated that of from the of the and is to the of the individual. be with the that a group has the to because of its It is with that to a group as and with or to discrimination in the of which are to not The case law has also that at the of of the of and has the realm of The of and public on this and the legal the has that must from any that, in any or is at of or The are “to to or that in their to the of a group of the to that the state must with to and of with its or or and in that case, the of discrimination because of was to of the the by of which discrimination is not an or but the of the with the of the for the of other that have not been the the other of of the in the of the most for the and in of the of in law. In this in the the of the of the has in its to the of on their the of for an to the of as a of the of has stated that is in of the on that in the of v. the that is “a by of the It also that the of in has and is not in the of v. the that as of the that be under is of those on which are as in the that they are or to the and on and that be under the other in of the the of the Gender Identity Law are by the of in of the of the City of Buenos Aires is also because or the and by or by to to have been no public in at the of of the trans group the of or resources of the of the City of Buenos trans people have not been to has been promoted to public the that their are the of trans people in public is not by the of and at trans people to to in a and are by this has this any or to trans people, and the applicant in the and of the system are no public to the of the city on the that the Gender Identity Law be any kind of in the system that the gender those to the people are not in the that the City of Buenos Aires to and the of The state has not provided any evidence to this are no in for in public hospitals, and on for the of identity and The law is in this sets the of public but the trans is not trans groups are by and this is because they the of In this Law not the of trans a to identity in people are they not have to their or gender in the a of the law for the of the trans is no evidence in the case that that are and for the and all public officials who are in a to or trans people from to or or the have any standards for this for the Action by the of as a for those who justice in or gender identity, and concerns about these of to because the and are no from or but these of are by and are for the and I consider a the state identified and the of of Ms. G's and other is in the I have no that the to the damage that Ms. has City of Buenos Aires is in for the to in its to the of the However, the with as by of the was to and the situation of transgender people, the group to which the applicant the and were the and that to the of the applicant be only as a of of as was their to to the and in the the and the of the of the City of Buenos on in this case, I to the by the to the of the state as a in these I stated that the to the of the and is in the of an decision, to its and that are at is by of by the of . . to my of the in of the and by the expressed by the of the in particular and the be by the City of Buenos was due to its of that the applicant suffered the the government's is only these I that the GCBA be sued and be for the that have been in the must be that the of of in the of the of to an and direct and is not to the of of the the or of state or officials be to the the state must be as a and in a direct a to their in a state of a of by the The for the of the state is to people, their and their if is due to or the state has to its of has stated that direct on the of is as a or to the of the the nature of the the to provide the the the and the and the of of damage the situation of Ms. G., a trans person in the City of Buenos the by the state and the to provide an that to the of transgender people, to the that the state is the damage was in of the of the trans is that the has legal and has also to the by the for the of the of transgender of was insufficient, as has been that to an of and by and the of the City of Buenos Aires the and of public time to those of a is provided by Law which the of or to their according to their gender However, is an that the to or other of of the trans The of the law is by its to the by the applicant in the case at a that of the and of discrimination on of However, an with of the which the and of sex on the As as are no for the of trans and discrimination to the only left to those the of in is for a state with the duty to the of the I consider that the in of the of the City of Buenos Aires has not been to the of and of that the applicant from her of in the and in of the National would be of all if the that Ms. G. was deprived as the to a would not have a state of the sets as a that the damage must be the that from the of a and public law state to its and by to the to a gender identity, and other It is in the of in the to gender identity of the applicant that must also be The the of by the state to to the in the and is the and that the its legal in of the be to an for the recognition of the by is an of the to as the I that by to the of the applicant the would an I with the of Ms. legal in this legal or with which the applicant is a of law that that damage must be is not a legal The the that is by a is on the of judicial In as the a judicial decision that to not the of those in state to the to and and and to the of its with a to the of the in the by all the of of this in that in an and the of the of the The to of not the of the other as the that is by . . . that part of a this is to the by in the case v. Government of the City of Buenos Aires the of public of the GCBA to to In the of stated the that a of the the of the government to its the of in the and in and that the of the by the is and that is part of an the of its law as for its to a on the Law of the argument of the of and to a and of of that and that the of legal but not if the of the would would also be proposed of the in the of an claim for the of and a that would be in the but has been the is The has an in the of these but its is not absent in this the of a is not the by the state but the of any legal to the to claim for of the duty It is only possible to consider a an or to is to by a or the of a judicial decision with the duty from the of their this decision is only for the that for Ms. G. and judicial decision not have the of a of an of the other administrative to a on the to that a judicial decision the to an that and by the of in the of the and the that the National and the of the City of Buenos in are not but of the that the discrimination suffered by Ms. G. was not only to the work and an of The applicant suffered and to The and endured have been numerous and and have her of to and the to the of her life with be in of the by the . these the in of the claim by the applicant, G., and the to pay a monthly allowance to the applicant, equivalent to the minimum living . . .