The United States has a long history of depicting itself as the most progressive and innovative democratic nation for civil rights. Specifically, when it comes to gender and sexual rights, “Most Americans think we already guarantee equal rights in the Constitution, but we don’t… [O]n the basis of sex… our Constitution remains unfinished work” America’s “unfinished work” can be compared to the work of Argentina, an alternative democracy where they have surpassed the United States on various gender and sexual rights. In light of the regressive nature of many views on gender and sexuality, such as that of Florida Gov. Ron Desantis, it is imperative for Americans to question how and why we fall short of other democracies on these certain topics, and I aim to answer these questions through a comparison of the Argentinian and United States legal systems’ treatment of the LGBTQ community.
In analyzing Argentina’s LGBTQ policies, I argue that their recent democratic transition and their subsequent equation of democracy with LGBTQ rights allow them to be more successful and progressive than the United States on this matter. In the early 1980s, Argentina noticeably transitioned from a military dictatorship to a progressive democracy. “Argentina’s heavy focus on human rights during this transition helped pave the road for social movements such as the LGBTQ Rights Movement. By framing gay rights as human rights, activists won mass support swiftly among parliament and the people.” Argentina, in transitioning to democracy, had a special focus on human rights, and human rights meant something different than they did when the United States became a democracy centuries ago. In Argentina’s transition to democracy, LGBTQ movements had already begun surfacing as a result of the growing AIDS epidemic. I theorize that the growing normalization of homosexuality helped Argentina equate LGBTQ rights with democratic rights.
When the United States became a democracy in 1776, however, they were in a very different time period with different norms. The definition and approach to human rights as a whole was drastically more oppressive. In 1778, Lieutenant Gotthold Frederick Enslin of the Continental Army became the first documented service member to be discharged from the United States military for being gay. In 1779, sodomy was still punishable by the death penalty. In other words, the foundations upon which United States democracy was built are tainted with undemocratic values, like the capability to discharge or discriminate against a lieutenant on the basis of his sexual orientation.
We see the effects of the difference in political timelines on the success of the LGBTQ movement in Argentina. When Argentina became the first Latin American country to legalize gay marriage, rather than sitting on that progress, they allowed LGBTQ rights to continue to expand. In June 2021, Argentina implemented a new bill that set a one percent quota for transgender people working in the public sector, which activists said would “transform everyday life for the country’s trans community.” This law was developed because of a 2017 survey in Argentina that found that “only 9 percent of trans people were formally employed, while 70 percent were sex workers,” indicating Argentina’s heavy focus on the well-being of citizens in the LGBTQ community. The United States has no such national law, leaving the ongoing problem of transgender representation unenumerated, whereas Argentina has specific laws catering to transgender people. As the Washington Blade reports, “Argentina this year created a position within the country’s Foreign Affairs Ministry that focuses exclusively on the promotion of LGBTQ and intersex rights abroad.” Again, the United States has no such thing.
In “The Politics of LGBTQ Rights Expansion in Latin America and the Caribbean,” Javier Corrales details Argentina’s progress with LGBTQ policies — “Argentina’s Gender Identity Law (2012), the first in the world to protect gender identity status and to call for free medical services for the trans community, has become a world standard.” The Gender Identity Law allows transgender people to transition without the worry of being “diagnosed” with a psychological deficiency to stop them from doing so. As for the United States, the American Civil Liberties Union reports that “there is no federal law that bans discrimination based on sexual orientation or gender identity in public accommodations.” In Argentina, censorship of LGBTQ issues is not allowed and there is a right to change your legal gender. Additionally, there is legal recognition of the non-binary gender as well as a full ban on conversion therapy. In the United States, however, all of these issues vary by region, depending on the state. For example, “On March 28, Gov. Ron DeSantis signed legislation that effectively bans discussion of sexual orientation and gender identity in Florida’s schools. The so-called ‘Don’t Say Gay’ bill creates new restrictions on classroom speech around LGBTQ people and same-sex families and empowers parents to sue a school if the policy is violated, chilling any talk of LGBTQ themes lest schools or teachers face potentially costly litigation.” Argentina has a national law banning any censorship of LGBTQ matters, while America leaves it up to each state, which is telling of the flawed enactment of United States democracy. If LGBTQ issues were more important at the time the United States became a democracy, perhaps it would reflect the successes of Argentina. However, we see from the shaky foundations of United States democracy why they drastically fall short of Argentina’s LGBTQ successes — for the United States has left the debate over LGBTQ rights wide open.
Zoe Brusso is a sophomore majoring in philosophy, politics and law.