Law 21.120: The beginning of non- arbitrary discrimination, what does it Mean?

The beginning of non-arbitrary discrimination of the 21.120 Law declares that government bodies shall guarantee that in the exercise of the rights to the gender identity, there’s no person that must be affected by distinctions, exclusions or some restrictions who have a lack of any reasonable justification, in which in terms of the article 2 of the Law No. 20,609, that declares measures against discrimination.

Now Why is it important that this must be established? Well, Michel Riquelme, OTD coordinator said: “All kind of discrimination against transgender people is transversal to most of the social spaces which are all divided by gender in binary. The discrimination sometimes is intentionally or by omission, when authorities or public servants do not consider the transgender people as they should and they don’t generate certain kind of inclusion.” For instance, to have a requirement in health (certificates, some unnecessary exams and other stuff) or in in jobs by having a gender expression which is totally according to the legal identity, etc.

The last one, may be one of the greatest discrimination consequences against on the transsexual population.  The legal adviser of OTD Chile, Matias Valenzuela, said “Where most people is discriminated is when they are looking for a new job: the 2017 T Survey said that 53% hide their gender of identity when are looking for a new job, 12% avoid it, and 6% search for works and opportunities in “Trans friendly” places. Another space is at schools. We already had 3 cases of serious discrimination in the commune of Santiago, Chile and we have received a lot of other kind of cases. The Circular 0768 of the Super intendency of Education is not very well done, because it declares that the parents must be those who request the application”.

How can we just finish we all of these? Well Michael said: “It’ necessary to educate the people and which are the forms of discrimination that have been committed. Also, there are topics of sexuality for people to learn the difference between the different concepts of the human sexuality. The state also must punish in an effective way the discrimination and to put all the economic resources and enough logistic for this can be achieved.”

Are the actuals norms useless? “No, there’s no protection against discrimination and no laws who have destination for resources for education and to promote a culture against discrimination. There are symbolic laws which maybe are useless as a way of having more controlled the discriminations from public services, because the officers are afraid of discriminate someone and lose their job. But with the private ones, a law with no budget to have an application in an efficient way, it doesn’t work at least the affected person have the resources to have its own defense and to fight for this trial and hope for some effective punishments”.

What is a best direction or way to avoid this? Matias said: “Well, also as in Uruguay with the 19,684 law and Argentina with the law 14,783, it’s is established a 1% labor, also as it was done to avoid discrimination against people who are living with disabilities here in Chile as it’s established the law 21.015. Now, the anti-discrimination law already has a lot of problems, most of them are evidentiary difficulties and disincentives to the claim, like the inexistence of compensation for damages and danger that it can be the same claim who may be fined. Also, there is a kind of “hierarchy” of rights, where prioritize the freedom of religion, economic and education is allowed, over the right of non-discrimination. this probably can subtract all the value to the procedure.”

More Information:

Law 20604 Anti-discrimination Chile

Law 21015 CUPO LABORAL DISCAPACITADES CHILE (Inclusion Job Law)

Law 19684 INTEGRAL TRANS URUGUAY

LEY 14783 CUPO LABORAL TRANS ARGENTINA

Translated by: Pedro Contreras and Sebastian Serrano