Asociación Lucha por la Identidad Travesti-Transexual v. Inspección General de Justicia, Argentina Supreme Court of Justice (21 November 2006)
The plaintiff, an association of transgender individuals, was denied recognition as a legal entity by the relevant government office. The Association appealed against the administrative decision but the appeal was dismissed. The Association then filed a motion for review of the denial of appeal to the Supreme Court of Justice.
The Association was denied recognition as a legal entity, which was provided for under Article 33 of the Civil Code. The Superintendent of Corporations, the authority responsible for this administrative decision, maintained that the Association did not fulfil the requirements set forth in Article 33. Specifically, the Superintendent of Corporations found that the Association failed the requirement of having an objective that promoted the “common good”. The Superintendent held that the Association’s objectives (fighting discrimination based on gender identity and promoting better integration of transgender persons) favoured only the Association’s members and “those sharing their ideas”. Since the whole of society did not benefit from these activities, it could not be said that the Association pursued the “common good”.
Whether the decision to deny recognition as a legal entity to the Association was based on reasonable grounds.
Civil Code of Argentina, Articles 33 and 45.
Constitution of Argentina, Articles 14 (equal protection), 16 (equality).
Anti-discrimination Law No. 23.592.
Comunidad Homosexual Argentina c. Resolución Inspección General de Justicia, Argentina Supreme Court of Justice, 1991.
American Convention on Human Rights, Article 1 (obligation to respect rights without discrimination), Article 16 (freedom of association), and Article 24 (equal protection).
International Covenant on Civil and Political Rights, Articles 1, 2, 22 and 26.
Universal Declaration of Human Rights, Articles 2, 7 and 20.
Advisory Opinion OC-4/84, Inter-American Court of Human Rights, 1984 (analysing equal protection amendment of the Constitution of Costa Rica)
Advisory Opinion OC-6/86, Inter-American Court of Human Rights, 1986 (analysing meaning of the word “Laws” in Article 30 of the American Convention on Human Rights).
Romer v. Evans, United Stated Supreme Court, 1996 (finding unconstitutional a State constitutional amendment that withdrew a specific class of people – gays and lesbians – from the protection of the law without a legitimate State purpose, in violation of the equal protection clause of the federal Constitution).
Reasoning of the Court
The National Civil Court of Appeal had dismissed the plaintiff’s appeal against the administrative decision on the grounds that it did not constitute discrimination but was a legitimate exercise of the authority’s discretion. The Court of Appeal held that classification was not suspect under the ICCPR or ICESCR. Furthermore, the Court held, Argentina could not be forced by any international provision to recognise an association that was not considered useful for the social development of the community.
The Association argued that the Court of Appeal had interpreted Article 33 of the Civil Code in a way that violated the rights to equality before the law, equal treatment, and equal opportunity, which were protected by the Constitution as well as international treaties.
According to the Association, the real reason behind the denial of recognition was the gender identity of its members. On these grounds it argued that the judgment was discriminatory.
The Attorney General argued in support of the Association. In his view, the main issue concerned the Court of Appeal’s assertion that the Association did not fulfil the requirement of pursuing the “common good”. The claim that only a discrete group of people benefited from the Association’s existence and activity was arbitrary. The same could be said about other associations (gay organisations, for instance), which nevertheless obtained recognition as legal entities.
Furthermore, the Attorney General argued, the concept of “common good” referred to social conditions that allow members of a community to achieve the highest level of personal development and the highest enjoyment of democratic values. The jurisprudence of domestic courts as well as the Inter-American Court of Human Rights confirmed this assertion. The fight against discrimination could be considered to serve this aim.
According to the Attorney General, the Court of Appeal had adopted a partial and unreasonable interpretation of the Association’s statute, in that it failed to consider that the statute concerned fundamental rights protected by the Constitution as well as by international instruments. Lastly, the Attorney General noted the importance attached by international bodies to discrimination based on sexual identity.
The Supreme Court held, first, that the administrative decision infringed the right to freedom of association.
According to the Court, the protection of the right to freedom of association provided by the Constitution had been strengthened and deepened by several international human rights instruments. The Court noted that the right to freedom of association was fundamental for the protection of the right to freedom of expression and human dignity. Limitations on this right entailed the risk of isolating certain social groups, especially those that had difficulties in being effectively integrated in society.
Only the promotion of ideas that disregard or threaten the protection of people’s dignity could justify a limitation of the right to freedom of association. The principles of pluralism and tolerance implied that freedom of association had always to be considered useful, because it increased respect for other people’s ideas, citizens’ participation in the democratic system, and social cohesion. It was wrong, the Court argued, to understand “common good” to mean what the majority considered good.
The Court next noted the widespread prejudice against sexual minorities. Transgender individuals, in particular, suffered from social discrimination but were also victims of ill treatment, violence and aggression. They were often marginalised, with serious consequences for their living conditions and health. It was therefore nearly impossible to assert that an association which aimed to end their marginalisation and improve their living conditions was not pursuing the common good.
According to the Supreme Court, the judgment of the Court of Appeal had not been grounded in law but rather on the judges’ personal opinions with regard to transgender individuals. This was discriminatory and contrary to the Constitution. Furthermore, there was no rational connection between the differential treatment imposed on plaintiff and a legitimate State objective.
The Court allowed the motion, reversed the judgment of the National Civil Court of Appeal, and remanded the case for trial in accordance with its judgment.
Asociación Lucha por la Identidad Travesti-Transexual v. Inspección General de Justicia, Argentina Supreme Court of Justice – Spanish (full text of judgment in Spanish, PDF)