doi: 10.56294/cid202227

 

REVIEW

 

Inclusive Recruitment: Exploring Theories, Legal Aspects, and Trans Talent in the Corporate World

 

Selección de Personal Inclusiva: Exploración de Teorías, Aspectos Legales y Talento de Personas Trans en el Mundo Corporativo

 

Alan Cirulli1  *, Abigaíl Godoy1 *

 

1Universidad Nacional del Oeste. Buenos Aires, Argentina.

 

Cite as: Cirulli A, Godoy A. Inclusive Recruitment: Exploring Theories, Legal Aspects, and Trans Talent in the Corporate World. Community and Interculturality in Dialogue 2022; 2:27. https://doi.org/10.56294/cid202227.   

 

Submitted: 29-08-2022          Revised: 10-09-2022          Accepted: 09-12-2022          Published: 11-12-2022

 

Editor: Prof. Dr. Javier González Argote   

 

ABSTRACT

 

The labor market is accompanied by mechanisms that distinguish and separate certain groups from society, regardless of the capabilities and capacities of individuals. There are a series of social and cultural practices that condition the exclusion of trans people in different areas, particularly in the labor sector. Research with qualitative, exploratory, flexible design methodology was carried out with the objective of identifying the barriers in the hiring process of a trans person in a company of the Autonomous City of Buenos Aires in the period from May to July 2022. After the development of this research, it was described how gender stereotypes typical of the heteropatriarchal system interfere negatively in the labor insertion of trans women. The recent research analyzed highlights the inequalities and exclusions that this group still suffers, both internationally and in the local context. Specifically in Argentina, it is observed that years after the enactment of the Gender Identity Law and the achievements made in recent years in terms of recognition, there is still resistance to change and evident forms of discrimination against this group in terms of labor market insertion.

 

Keywords: Trans; Transsexuality; Gender; Work Environment; Labor Market Insertion.

 

RESUMEN

 

El mercado laboral está acompañado de mecanismos que distinguen y separan a determinados grupos de la sociedad, independientemente de las capacidades y capacidades de los individuos. Existen una serie de prácticas sociales y culturales que, que condicionan la exclusión de las personas trans en diversos ámbitos, particularmente en el sector laboral. Se realizó una investigación con metodología cualitativa, exploratoria, de diseño flexible, con el objetivo de identificar las barreras en el proceso de contratación de una persona trans en una empresa de la Ciudad Autónoma de Buenos Aires en el periodo de mayo a julio de 2022. Luego del desarrollo de esta investigación se describió cómo los estereotipos de género propios del sistema heteropatriarcal interfieren de manera negativa en la inserción laboral de las mujeres trans. Las investigaciones recientes analizadas ponen de manifiesto las desigualdades y exclusiones que este colectivo aún sufre, tanto a nivel internacional como en el contexto local. Específicamente en Argentina se observa que años después de la sanción de la Ley de Identidad de Género y de las conquistas alcanzadas en los últimos años en materia de reconocimiento siguen existiendo resistencia al cambio y evidentes formas de discriminación de este colectivo en lo respectivo a la inserción laboral.

 

Palabras clave: Trans; Transexualidad; Género; Ambiente Laboral; Inserción Laboral.

 

 

 

INTRODUCTION

Contemporary society has witnessed changes of all kinds at the cultural, political, social, educational, and other levels. It responds to the need to create cultures of peace in which specific differences are respected, and the inclusion of minorities that have been historically violated and made invisible is encouraged.

Over the years, it has been possible to identify a series of social and cultural practices that, to a certain extent, have generated abuses by minorities, as in the case of the LGBTI community and especially those who identify themselves as Transgender are excluded in various areas, particularly in the labor sector.(1)

This violation has led to a debate on discrimination and harassment based on gender identity and sexual orientation in many areas or aspects, such as education and employment. This has resulted in labor exclusion, forcing these people to work in different conditions where the quality of employment and, therefore, the quality of life declines.

The labor market is accompanied by mechanisms that distinguish and separate certain groups from society, regardless of the capabilities and capacities of individuals. These phenomena define people's occupations and labor profiles according to their differences and other characteristics.(2)

On this issue, the International Labor Organization, in a report published in 2012 on "Discrimination at work on grounds of sexual orientation and gender identity: Results of the ILO PRIDE project," states that discrimination and harassment on grounds of gender identity and sexual orientation begin at the schooling stage, reducing employment prospects to the same extent. Subsequently, discrimination continues in the access to and development of work, in which LGBTI workers may suffer harassment, bullying, sexual abuse, or physical mistreatment.(3)

In the specific context of transgender people, this report concludes: “Transgender people face the most severe forms of employment discrimination. Many of them reported being rejected in the job interview because of their appearance. Problems they face in the workplace include the inability to obtain an identity card that reflects their gender and name; employers' reluctance to accept their dress; discouragement from using gender-appropriate restrooms; and increased vulnerability to harassment and bullying by co-workers. In many cases, transgender workers (particularly trans women) are completely excluded from formal employment. As a result, in some countries, their only remaining survival strategy is sex work, often in hazardous conditions, which increases their vulnerability to HIV”.(3)

In the case of transgender people, the reality is that those who try to prepare academically for a job or profession are forced to hide their gender identity; conversely, for those who do not hide their identity, their best options are the street, the informal sector, or prostitution.(4)

The labor situation faced by transgender people could be supported and understood under the theory of segmentation of the labor market and internal markets. Based on these theories and their articulation with the results of the fieldwork of this research, it is possible to describe the concentration of the study community in the formal or informal sectors of the labor markets and to determine the labor segregation they face.

On the one hand, Piore (1969) focuses on the dual labor market hypothesis, based on the theory of labor market segmentation, which is divided into two areas: primary and secondary. The first, also known as the formal sector, provides jobs with high wages, good working conditions, opportunities for advancement, and job stability. In the primary sector, a distinction must be made between the upper segment, defined as high-skilled specialized jobs, and the lower segment, characterized by medium-skilled jobs. On the other hand, secondary or informal sector jobs tend to offer low wages, poor working conditions, precarious work, and temporary contracts.(2,5,6)

The context of transgender people is based on the dynamics of the primary labor sector above the market. To this end, they relied on the theory of internal labor markets, which is based on the idea that companies may have rules and customs that determine their operation, organization, employee selection model, or pay structure. In general, in the internal labor market, employment and wages are not determined by the freedom of market forces but by internal administrative rules and procedures.(2,7)

Despite Argentina being one of the reference countries worldwide in terms of sexual diversity after the approval of the Equal Marriage Law (2010), the Gender Identity Law (2012), and a series of measures that between 2012 and 2015 sought the labor inclusion of trans, transvestite, and transgender people.

The problem of labor exclusion of transgender people is closely related to exclusion, resulting in informal labor activities and less social inclusion.

As a result, many individuals resort to sex work as a livelihood. However, the absence of regulation in such employment and the possibility of contracting sexually transmitted diseases creates a risky situation for transgender people. This translates into a lower quality of health and a life expectancy of around 35-40 years.(8)

Objective: To describe the literature on barriers in the hiring process of transgender people in Argentina.

 

Specific objectives:

To describe different theories on personnel selection and job competencies of trans people.

Describe the legal aspects of recruitment, selection, and inclusion of trans people in the labor market.

To know which characteristics of trans people can benefit the development of professional tasks within a company.

To identify studies and programs of labor inclusion implemented with trans people.

 

Theoretical foundations and justification

Work is an essential aspect of a person's life. It is there where the subject determines the fundamental relationships of his or her life; on the one hand, work is a labor activity that becomes a source of personal enrichment, strengthens self-esteem, and promotes self-improvement—good intentions and achievements of the same subject.(9)

In this sense, work gives meaning to life, provides a place for the person in society, and becomes an essential focus of human self-perception in the social context.(10)

This approach is in correspondence with Meda (2007), who states:

“Work constitutes the main source of income, feelings, and reality of social integration. Nothing is said about the amount of work necessary to reach this goal: to have a job, that is to say a job, is to have the means to live, it is the first condition of life in our modern societies”.(11)

The fact that a person can join the world of work is an opportunity that transcends the economic; it is the central core in the construction of identity, and therefore, in this case, the subjects are not included in the world of work due to discrimination, leads to a feeling of isolation and self-rejection.

We could apply this case to what trans people experience, who often need to hide their true identity to access the world of work, as stated in the following sentence:

“In this framework, in the labor spheres LGTBI workers decide to hide their sexual identity to avoid situations of rejection or exclusion, or that their working conditions suffer negative changes and, in many cases, suffer the risk of being fired”.(12)

Tamarit (2017) offers a much more detailed explanation of this element that is cardinal in transgender people:

“To make the change of identity they have to go through a multitude of processes, such as personal acceptance, social approval, modification in legal identity, hormone and sex reassignment intervention. This variation in the image of people is a situation unknown to most citizens, as it is outside the traditional social canons that mark the image of the two genders, male and female. It is this difference that can provoke fear and rejection”.(13)

One of the goals of inclusion, in addition to recognizing the value of human diversity and strengthening people's participation in the different spheres of social life, is to identify and reduce the barriers that hinder their personal and collective development.(14)

Significant advances in terms of fundamental rights have been achieved thanks to alliances made among transgender women themselves, who have empowered themselves and fought to accompany the transit processes of other women and demand the guarantee, without discrimination, of their fundamental rights—considering that they have opened social spaces for their recognition and hiring, mainly due to regulatory changes in the public sphere.(15)

Barriers to inclusion are all those physical, social, and attitudinal factors that prevent or limit the full realization of individuals. It is a dynamic concept because it refers to the interaction between people and the conditions of their environment, i.e., objects, rules, procedures, or attitudes are not a barrier and, therefore, can be modified.(16)

Idalberto Chiavenato (2000) offers his view on this subject: “Personnel selection is part of the staffing process, and comes after recruitment. Recruitment and personnel selection are two phases of the same process: obtaining human resources for the organization. Selection is an activity of comparison or confrontation, of choice, of option and decision, of entry filter, of classification and, consequently, restrictive. Recruitment is the selective attraction, through various communication techniques, of candidates who meet the minimum requirements of the position. The specific objective of recruitment is to supply the raw material for selection: candidates”.(17)

The enactment of the Gender Identity Law (Law No. 26,743) brought with it access and recognition of rights such as access to health, education, work, housing, the exercise of political and civil rights, and the management of change in the face of stigma and general discrimination.(18)

The labor market insertion of transgender people is almost null, making evident the need to comply with the Gender Identity Law, which refers to dignified treatment in the labor environment.(18)

A fact to take into account is the distinction made by Tamari (2017) on access to the labor market for transgender people from a more profound and more comprehensive approach: “The barriers to insertion are not restricted to the violation of human rights, but to this must be added the difficulties in accessing employment as a result of the current crisis. Therefore, in addition to knowing the situation of transsexual people, it is also necessary to bear in mind the changes that the labor market has undergone in the last decade. The close relationship established between work and social insertion can also be extrapolated to the relationship between unemployment and social vulnerability, or even social exclusion”.(13)

It is appropriate to study the barriers that persist in the hiring process of transgender people in the context of a company in the Autonomous City of Buenos Aires, considering that the notion of barriers points to the conditions of the environment that restrict the entire development; of the interaction between people's capabilities and the context, including barriers and facilitators.(16)

The elements planned up to this point demonstrate the importance of the development of the present research to be able to know which are the causes that prevent or hinder the access to work of the group of transgender people and also to know the challenges they face, because they will define their professional and personal career; taking into account two perspectives in the object of study, one that corresponds to an institution that facilitates the connection with employment to people in situation of social exclusion, and the second perspective of three transgender people who contribute with their experience in the labor market.

 

DEVELOPMENT

Legal aspects on recruiting, selecting, and including trans people in the workplace.

The prohibition to discriminate against people is enshrined in our National Constitution and multiple international legal instruments with constitutional hierarchy.(19)

Non-discrimination means the obligation to give equal treatment to all persons; this legal principle is based on the dignity and freedom inherent in the very condition of the human person. It is a civic obligation that evolved from “equality before the law” to guaranteeing “equal opportunities.”

Our National Constitution (text 1853-1860), in Article 16, declares that in the Nation, no prerogatives of blood or birth are admitted, nor are there personal privileges or titles of nobility, and, finally, it enshrines equality before the Law and suitability as the only condition for access to employment. It also establishes that equality is the basis for taxation and public charges.

The same Magna Carta in its Article 19 enshrines the right to privacy by establishing that: “the private actions of men (Dixit) that in no way offend public order and morals or harm a third party, are reserved only to God and exempt from the authority of the magistrates.” The right to privacy means living autonomously, according to one's preferences, each life option. It also contains the generic duty not to harm, a fundamental principle since discrimination in any of its forms brings, as a consequence, some damage to the dignity of the person.

Later, the constitutional reform of 1994 gave constitutional hierarchy to various international human rights instruments that enshrine absolute equality of opportunity and non-discrimination. Article 7 of the Universal Declaration of Human Rights declares: “All are equal before the Law and are entitled, without distinction, to equal protection of the Law. All are entitled to equal protection against discrimination in violation of this Declaration and against incitement to such discrimination.” (all the transcribed norms are written in masculine in its generic misuse, which is supposed to universalize the human, but what it achieves is to invisibilize the feminine and the diverse, causing the paradox of discriminating in the same fact in which non-discrimination is announced).(20)

 

The guidelines of this policy are established in Decree 721/2020. It establishes a series of horizons towards which to direct the actions of the Ministry:(21)

·         Every transvestite, transsexual or transgender person has the right to dignified and productive work; equitable and satisfactory working conditions; protection against unemployment, without discrimination based on gender identity or expression.

·         Employability requirements that obstruct the exercise of these rights may not be established.

·         Due to the high levels of discrimination frequently suffered by trans and transvestite persons and their high unemployment rate, it is established that transvestites, transsexuals, and transgender persons, who meet the conditions of suitability, must occupy positions in the national public sector in a proportion of not less than 1 % of the total number of positions. This percentage applies to all current hiring modalities.

 

On the other hand, a series of concrete lines of action are derived from this decree in order to advance toward the horizons above:(21)

·         The Voluntary Registry of Transvestites, Transsexuals, or Transgender persons aspiring to work in the national public sector is created.

·         The Ministry of Women, Genders, and Diversity will monitor the number of positions filled with transvestites, transsexuals, and transgender people, over the total number of permanent and temporary positions and the total number of existing contracts in the National Public Sector.

·         If the job applicants still need to complete secondary education, they can enter the job on the condition that they attend and complete the missing educational level.

·         The Ministry of Women, Genders, and Diversity and the National Institute of Public Administration (INAP) shall train the personnel of the National Executive Branch to ensure that the inclusion of transvestites, transsexuals, or transgender persons in jobs is carried out under conditions of respect for their identity.

 

A law promoting access to formal employment for transvestites, transsexuals, and transgender persons “Diana Sacayán - Lohana Berkins”.(22)

On July 8, the National Government officially enacted Law 27.636. The purpose of this law is to establish affirmative action measures aimed at achieving the effective labor inclusion of transvestites, transsexuals, and transgender persons, thus promoting absolute equality of opportunities.

The National State, including the three powers that comprise it, the Public Ministries, the decentralized or autarchic agencies, the non-State public entities, the State enterprises, and corporations, must employ at least 1 % of its total staff with transvestites, transsexuals, and transgender persons, in all the regular hiring modalities in force.

In order to ensure compliance with this quota, public agencies must establish job reserves to be filled exclusively by these persons. They must also reserve the vacancies that occur in the positions corresponding to agents who have entered under the regime of this law to be occupied entirely by transvestites, transsexuals, and transgender persons. Compliance with the provisions of this law shall in no case imply the termination of the labor relations existing at the time of its enactment.

An interesting point raised by the law is the case in which job applicants still need to complete their education. In these cases, they will be allowed to enter on the condition that they attend the required educational level or levels and complete them. The application authority must provide the means to guarantee training. Infringement records that are irrelevant for access to the job position will not be considered.

The implementation of these measures has many benefits. The national government must prioritize the purchase of supplies and provisions from private legal entities or individuals that include transvestites, transsexuals, and transgender persons in their workforce. In turn, the employer's contributions generated by the hiring of the beneficiaries of this law may be taken as payment on account of national taxes, with a term of 12 months from the execution of the employment contract. For SMEs, the term will be extended to 24 months. Another significant benefit will be the access to credit from Banco de la Nación Argentina. This must promote lines of credit with preferential rates for the financing of productive, commercial, and service undertakings specifically intended for transvestite, transsexual and transgender applicants.

The application authority must create a Single Registry of Applicants in which transvestites, transsexuals, and transgender persons interested in applying for job positions can register to provide the demanding agencies with lists of candidates corresponding to the description of the position to be filled. Registration is not mandatory.

At the same time, an Interministerial Coordination Unit is created within the scope of the Executive Branch application authority to guarantee the integral and coordinated implementation of the present law among the agencies with competence in the matter and the follow-up of the state of progress thereof. It will be integrated by representatives of the Ministry of Women, Genders, and Diversity of the Nation, the Ministry of Labor, Employment and Social Security of the Nation, the Ministry of Labor, Employment and Social Security of the Nation, the National Institute against Discrimination, Xenophobia, and Racism, the National Institute against Discrimination, Xenophobia and Racism, and the National Ministry of Education. Total or partial non-compliance with the law by responsible public officials constitutes malfeasance in office or gross misconduct, as appropriate.(23)

 

Elements for inclusive access to employment and selection for transgender people

In addition to ongoing diversity training and sensitization, the institution must have an internal policy and procedures to ensure that access to employment and personnel selection is free of discrimination.

The measures presented here are intended to support employees responsible for recruiting and selecting personnel. A review of personnel selection procedures is necessary so that all individuals can feel comfortable applying for an available position and are provided with a safe environment to express themselves openly. Often, in the interview process, the heterosexuality of the applicant is presumed. Typically, questions are asked, or personal information about the applicant's partner or family situation is requested. Requests for personal data that do not relate to the suitability of the position should be removed from both job search postings and the selection process.

It may also happen that those conducting the recruitment process have stereotypical ideas about specific jobs, which may affect their decisions.

In these cases, the institution should work to establish standardized internal processes to regulate interview mechanisms, provide training to those who select personnel to eradicate stereotypes and prejudices, and ensure that the decision-making process when selecting a worker is fair and accessible to discrimination.

Among the actions to be implemented, 20 are recommended:

·         Pay attention to the language used in the job search. Ensure that the requirements relate to the position that needs to be filled. Think about whether the way of communicating could unintentionally discourage some people from applying.

·         Provide diversity training to the recruiting team.

·         Make employment benefits, such as parental or adoption leave, equally available to all types of families.

·         If it does not exist, create a diversity and inclusion policy that influences recruitment.

·         Participate in and collaborate with LGBTIQ+ community events.

·         Use images or words in its communication and dissemination media that value diverse identities. Using rainbow colors in images and graphic material and incorporating images of diverse people in internal and external communication campaigns contribute to promoting inclusion.

·         Always make the equality and diversity policy known to those who enter the institution.

·         Adapt the procedures for the selection and movement of employees to ensure that all people are included and treated fairly, without discrimination.

·         Verify the vocabulary used in the institution's forms to be inclusive for all people, avoiding binary uses.

·         Seek participation mechanisms for LGBTIQ+ workers to ensure inclusive and effective policies and procedures.

·         Train workers responsible for decision-making.

·         Establish a mechanism for action in the hypothetical case that the person interviewing for a job has made prejudicial comments or has been biased in their decision based on sexual orientation or gender identity rather than the applicant's ability.

It is important to emphasize that how a job vacancy is applied for, the selection process, and the treatment of applicants will give rise to a reputation for the institution regarding its level of inclusion and non-discrimination. Moreover, it is the first way to present itself to show what kind of organization it is.

 

Transsexuality, career development, and business reality

In general, lesbians, gays, and bisexuals encounter difficulties in maintaining and developing their professional careers due to factors that affect their satisfaction and quality of work life, such as the incompatibility between their family situation and current legislation, the impossibility of being promoted because of prejudice regarding sexual orientation or being the object of ridicule, comments, or jokes with homo-lesbophobic content, reaching, in some instances, moral harassment in the workplace or extremes of explicit violence.(24)

Trans people, for their part, encounter severe difficulties with their labor inclusion, that is, the possibility of accessing a job or formal employment that will allow them to build living conditions with a perspective of personal development in the future. The cause of this difficulty lies in the everyday experiences of early exclusion that most transgender people experience.(24)

The problems in the labor sphere of transgender people are marked by the low level of professional qualifications that hinder their integration into the labor market. In many cases, for fear of rejection and possible conflicts, they interrupt their intellectual and professional training for a few years to begin the process of change, which hinders their subsequent integration.(25)

Difficulties in labor integration are also caused by discrimination due to physical appearance and the lack of concordance of the body image with the identity document. Trans people who undergo the process of change while active in the labor market usually find themselves rejected and misunderstood by their co-workers or superiors, who marginalize them and, in some cases, subject them to humiliating treatment. This implies that the person is subjected to constant conflictive situations that can interfere with their work performance.(26)

For a subject to be included in the world of work is an opportunity that goes beyond economic sustenance; it is a central nucleus in constructing identity. Therefore, in this case, subjects who are not included in the world of work due to discrimination have. As a result, feelings of isolation and self-exclusion. In this case, these feelings provoke in trans persons a need in some cases to hide their true identity to gain access to the labor market.(10)

A society cannot create wealth from exclusion and discrimination. The feminist movement has shown that the more people have access to work, the better the conditions and quality of life. The advantage of inclusion as an action and policy is that it is usually an active and bidirectional concept. Rulers, authorities, and leaders commonly talk about respect and tolerance towards sexual diversity, but they use vague and abstract concepts that resonate subjectively in a different way.(27)

What for one person implies respect for another is not. To this, we must add that specific sectors of society confuse tolerance with indifference; for many people, respect exists as long as trans people do not leave their places, environments, or circles.(28)

Inclusion means being united and present in all areas and spheres of society and daily life; it implies leaving the ghettos and clandestine spaces where society has relegated people because they are considered different and of less value. It should be considered that most of the jurisprudential development, international documents, and reports of specialized organizations refer mainly to people because of their sexual orientation. However, few or almost none seek to reduce the backwardness in labor and contextual matters of people due to their gender identity.(28)

 

Discrimination pulverizes people; work dignifies them.

The difficulties of labor integration and the economic precariousness of these people lead them to direct their labor activity towards the world of entertainment and prostitution. Some companies are forced to change standard services, such as changing rooms and toilets, to adapt them to the needs of transgender people.(25)

It is equally important to respect their choice of uniforms or work clothes, use of bathrooms or changing rooms, differentiated by sex. Problems of access to toilets, changing rooms, and showers should be handled with sensitivity since, on the one hand, we must consider the emotional responses of co-workers who share facilities. However, on the other hand, it is unacceptable to deny access to a trans person to specific toilets, forcing them to use toilets contrary to those chosen.(29)

It should be noted that attempting to justify this refusal, regardless of the arguments used, is discriminatory. Unisex restrooms can be very useful to avoid possible tensions, but their use cannot be made compulsory for trans persons.(29)

In some cases, due to the medical or hormonal processes that trans people have to go through, it may be necessary to adapt the job or the working day while the transition process takes place, so it is important to remember that the Law on Occupational Risk Prevention establishes that for an adequate preventive action, the worker has the right to have specific protection measures when, due to their characteristics or known biological condition or physical, psychological or sensory disability, they are susceptible to certain risks arising from work.(29)

Rivas systematizes a series of recommendations and proposals to improve labor inclusion in work environments for transgender people:(30)

1.    Modify school regulations and the requirements for accessing and maintaining them so that they contemplate gender identity. Regulatory documents should be appropriate to the reality and context in which they are developed.

2.    Create labor insertion programs for transgender and transsexual persons in the Labor Secretariats and in all instances of all levels of government.

3.    Consider transgender and transsexual persons in job training.

4.    To make the requirements and conditions for entering job training centers more flexible in the understanding that in several Latin American countries, there are still no laws recognizing gender identity (this particular case does not apply to the Argentinean context).

5.    Training on gender identity, the right to non-discrimination, and human rights for teachers in job training centers.

6.    Training for companies and business organizations on non-discrimination and corporate social responsibility. Promote social responsibility and labor inclusion as added value and corporate practices in the private sector.

7.    Create Job Training Centers that are inclusive and in compliance with international standards on Human Rights and gender identity, updated, accessible, and free of discrimination.

8.    Coordination between the Job Training Centers and the Secretaries of Labor so that there can be an employment exchange and feedback on the public policy implemented. Dialogue between both institutions will strengthen all efforts made by the state, civil society, and citizens.

 

The capacity and aptitude of a person to perform his or her job has nothing to do with his or her gender, gender identity, or gender expression. The legislation in force in Argentina protects people against discrimination in the work environment so that dismissing, preventing promotion, or making any other modification that worsens the working conditions of a person for the mere fact of having visualized his or her transition process would be a violation of his or her rights.

Other authors, such as Azañon et al. (2019), state that the company should participate in and support the trans person in his or her transition process. Therefore, the following aspects should be taken into account:  

·         Trans people should be treated according to their chosen name and gender identity; it is essential that in any internal documentation of the company, the name and sex of the person are modified even if the legal rectification in their ID card has not yet been processed.  

·         It is the trans person who decides to whom, when, and how to communicate his/her transition process and the moment he/she wants to start being treated according to his/her gender identity.  

·         The company will provide the uniform or work clothes according to the gender identity of the trans person.  

·         Derived from their transition process, trans people may need to attend medical consultations and have periods of Temporary Disability, which should be excluded from the percentage for objective dismissal for absenteeism (to be negotiated in agreement or protocol).  

·         If the trans person temporarily needs an adaptation of the position or schedule, it will be transferred to the Health and Safety Committee or, failing that, to the prevention delegate, carrying out, if necessary, an evaluation of occupational and psychosocial risks.  

·         The company will carry out the necessary training to help the rest of its staff understand and respect the situation by including it in their training plans.

 

Finally, it is worth mentioning the report "ORGULLO (PRIDE) en el trabajo: Un estudio sobre la discriminación en el trabajo por motivos de orientación sexual e identidad de género en Argentina" (PRIDE at work: A study on discrimination at work due to sexual orientation and gender identity in Argentina), where the need to address in its complexity and comprehensiveness the situations of discrimination due to sexual orientation and gender identity or its expression in the workplace is highlighted.

This document highlights the need to promote actions and measures that, considering the particularities, can respond to the challenges posed by each. It is also essential to emphasize that the fight against discrimination must be a shared effort that involves all actors in the world of work.(31)

The report "PRIDE at Work: A Study on discrimination at Work Based on sexual orientation and gender identity in Argentina" makes the following recommendations for governments (national, provincial, and local) as well as for workers' and employers' organizations (and private companies).

For governments (national, provincial, and local):

1.   Implement - as a matter of urgency - programs to address the inclusion of LGBT people in all economic sectors.

2.   Promote study plans and scholarships for LGBT people who face difficulties in labor insertion, particularly for the trans population, favoring training in their work environment.

3.   Create spaces respectful of the diversity of gender identity within the school to avoid the cycle of social rejection, labor exclusion, and vulnerability to HIV experienced by transgender people.

4.   Generate a wide range of productive work options so that sex work is not the only employment option for trans women. These programs should consider the differentiated reality of trans women and men over forty years of age -given the low life expectancy of this population- promoting a minimum coverage of social protection, both in terms of social security and comprehensive medical treatment. 

5.   Promote the constitution of work cooperatives as a positive labor space for LGBT workers, providing them with trade training and contemplating various avenues of support, such as a regime of promotion of state hiring for such cooperatives. 

6.   Implement training and support programs for productive micro-enterprises that contemplate the regional realities, study, and training of the LGBT population. 

7.   To advance with the modification of the Labor Contract Law for the inclusion of a birth leave regime for both pregnant and non-pregnant women, which, in addition, incorporates in all leaves and presumptions of the law the same rights as for same-sex couples; and to ensure that these rights apply to all workers.

8.   Strengthen and expand incentive programs for companies that hire transgender people in their staff, as well as those that incorporate in the training of their employees the theme of equality and non-discrimination towards the LGBT population in general.

9.   Promote and advance the application of the National Plan against Discrimination to improve access to the whole exercise of labor rights for the LGBT community and other communities whose rights are violated.

10.Establish an observatory on labor and sexual diversity that monitors through complaints and other mechanisms situations of discrimination, harassment, and labor violence (at the national and provincial levels) related to sexual orientation and gender identity or its expression and that disseminates information on the legal protection in force and the means of complaint. For this purpose, the work with networks of LGBT people will be promoted.

11.Establish a network among provincial and national legislators who have had positive legislative experiences regarding LGBT rights at work in order to systematize good practices and provide technical assistance regarding LGBT rights.

12.To carry out a study, with full participation of workers' and employers' organizations in the country, to identify the economic sectors in Argentina where there is more excellent discrimination against LGBT workers and also those where there is greater inclusion. Derive experiences and good practices from those inclusive economic sectors and develop programs in collaboration with companies, sector by sector, generating practical solutions in consultation with workers' and employers' organizations.

 

For workers' and employers' organizations (and private companies):

1.   Make explicit the recognition of LGBT rights within Collective Bargaining Agreements (CBAs). The best way for LGBT workers' rights to be promoted is to participate in the negotiation tables and draft CCTs.

2.   Establish human resources policies and guidelines that promote equity, inclusion, and respect for sexual diversity within private and public sector companies.

3.   Recognize equally to LGBT workers the employment benefits granted to heterosexuals, including the regime of birth leave and other unique leaves of absence.

4.   Facilitate opportunities for leadership and participation of LGBT workers and employers.

5.   Conduct sensitization and training workshops on sexual orientation and gender identity so that employers and workers have the necessary tools to combat and prevent discrimination against LGBT people.

6.   Share and promote good practices of workers' and employers' organizations and companies in the area of LGBT rights in order to generate a community of practice accompanied by civil society organizations.

7.   Establish LGBT diversity areas or offices within workers' and employers' organizations and at the company level. In particular, incorporate the figure of the LGBT rights delegate in workers' organizations.

8.   Establish special procedures in companies to denounce labor harassment (sexual and moral) and harassment based on sexual orientation and gender identity or its expression. It is suggested to establish a hotline or other independent system to clarify any doubts and to be able to report confidentially. Another way of channeling complaints may be through the unions.

9.   Work for respect for the gender expression of all people in the workplace, particularly regarding dress requirements and without directives on the mandatory use of "feminine" and "masculine" clothing.

10.Allow the use of facilities and work environments according to self-perceived gender, such as restrooms, locker rooms, and the like, tending as far as possible to incorporate gender-neutral restrooms.

11.Incorporate in the calendar of commemorative events of workers' and employers' organizations and companies significant dates alluding to the LGBT community.

 

Studies and labor inclusion programs implemented for transgender people.

People with non-normative gender identities, gender expressions, sexual orientation, or practices are among the most discriminated groups in our society, to whom negative labels and pejorative and offensive epithets are reserved, according to measurements carried out by this Institute. This feeling of rejection and contempt can occasionally lead to physical violence, aggression, and even extermination.(32)

In Argentina, significant regulatory advances have been made in the area of gender and diversity, such as Law No. 26,485 on Integral Protection to Prevent, Punish and Eradicate Violence against Women in all Areas in which they develop their Interpersonal Relationships; Law No. 26,618 on Equal Marriage; and Law No. 26,743 on Gender Identity, among others. As a result of these achievements, the State has provided the necessary institutional framework for the effective exercise of the rights of all persons under equal conditions, regardless of their sexual orientation and gender identity.(32)

In order to promote measures aimed at repairing the situation of structural discrimination that transvestites, transsexuals, and transgender persons have historically suffered, Law No. 27,636 on Promotion of Access to Formal Employment for Transvestites, Transsexuals and Transgender persons “Diana Sacayán - Lohana Berkins” was enacted in Argentina.

This regulation invites us to break with the indifference and complicity regarding the reality of the community in our country: only 18 % of transvestites and transgender people had access to formal jobs. This is an invisible population, historically marginalized and excluded.

Although the Gender Identity Law sanctioned in 2012 was a significant step in conquering the rights of the transvestite trans collective, it is still necessary to work for their adequate access, among which labor inclusion stands out. That is why it is essential to achieve regulatory advances such as the trans labor quota.

The main conclusions of a set of studies on labor insertion of trans people in the international and national context are described below.

 

International context:

Research in Chile concludes that they are mainly given by a binary social structure with cultural bases that hinder the integration of trans people since there is no educational work within organizations that facilitates adaptation and incorporation in heteronormated spaces.(33)

However, organizations are currently incorporating protocols that guide the transition process but do not provide sufficient information to peers and managers on how to adapt the artifacts that are culturally sectored by gender, which generates conflict between each collaborator's beliefs, ideologies, and cultures. The scarce information about trans people has hindered the naturalization of this condition since there is still great social prejudice that stigmatizes people who do not have a binary identity and tends to pathologize them in a transversal way beyond the sector they work in. However, some areas are culturally more open to diversity, such as art, social sciences, and trades related to aesthetics.(33)

The main difficulties encountered in labor insertion lie in the legal protocols required to obtain a work contract since there are bureaucratic issues that make it difficult to change the registered sex, which has a direct impact on the legal documents that accredit a given identity.

Another obstacle is framed in the conditions and cultural artifacts that are sectorized by gender, such as bathrooms, registries, and signatures, as well as social and linguistic elements that are implicit in the communicative process. When establishing interpersonal links, everything is combined, mainly reflected in older generations where the trans issue was socially invisibilized.

These legal obstacles that prevent the free expression of the gender identity with which the trans person identifies cause collateral conflicts with the social environment since, in the workplace, people tend to respect the legal aspects regardless of what the trans person says about his or her identity. This resistance is intensified mainly in older generations who are not very flexible in being open to knowing the reality of people who do not identify with their biological sex.(33)

A study on the analysis of employment opportunities for transgender people in Guayaquil, Ecuador, which analyzed the perception of business personnel surveyed in the study, found that the participation of transgender people in the labor market is low, according to the opinion of the people surveyed.(34)

In the interviews with transsexuals, it was possible to conclude that they have had a very complicated life, stories that reflect the reality that many of them go through. Many have been able to overcome by themselves outside their hometown, looking for better ways, while others accept themselves and receive the rejection of their loved ones. In the interviews, they told us about how they see society, and there is a general lack of information on the subject.

Many hope that someday they will change their expectations about their condition by looking for a decent job, and the proposal put forward is the one that mostly meets the conditions of acceptance. Hopes are the ones that survive these people, and it is hoped that in the not-too-distant future, society will change, at least in the labor world, its way and perception of seeing things and treating incoming personnel in their companies.(34)

The researcher Armando José Juárez Méndez, also in Ecuador in the state of Manabí the purpose of understanding the discrimination in the transsexual within the Santa Lucía Parish and stigmatization in the transsexual within the Santa Lucía Parish, conducted a qualitative study under the phenomenological-hermeneutic method, choosing as key informant a male-to-female-transsexual subject inhabitant of the Parish in question.(26)

In this study, it was found that there is excellent discrimination and stigmatization towards transsexuals in Santa Lucia Parish, which is generated from various causes but is fundamentally based on social prejudices that have been rooted for a long time and that have not adapted to the current society and it is highly changing dynamics. Thus, beliefs are generated, primarily erroneous, that heteronomy is the best way to live, excluding anyone who deviates from this dual sex-gender system with its respective interpretation and execution of roles.(26)

Grecia Lorena Valencia Arcos and Octavio Maza Díaz Cortés studied the labor consequences of the transition from male lesbian to male transsexual in the labor market of Aguascalientes.(35)

This study reports that the problem of toilets in public spaces is recurrent: all the interviewees declare having had problems at the moment of entering both public spaces and those of their work establishments when their bodies were in a situation of incongruence or were non-binary, that is when they conceived of themselves as male lesbians or were in transit (transsexual lesbians). The aggressions recounted in the interviews show how people not only discriminated against them for being male lesbians but on occasions, it was the municipal or state security authorities who were in charge of forcibly removing them from such public spaces for not having a congruence with their biological gender. For all these reasons, mixed bathrooms in public spaces and workplaces are necessary to avoid security risks in the face of violence, discrimination, and exclusion against people with sexual and gender diversity. The study recommends having mixed bathrooms in public spaces and workplaces to avoid security risks in the face of violence, discrimination, and exclusion against people with sexual and gender diversity.(35)

The study recommends the urgent need for training and management of public policies to inform and sensitize the administrative and service personnel of public and private institutions at the federal, state, and municipal levels on labor discrimination against sexual and gender diversity, with emphasis on the case of persons with gender diversity or non-binary gender expression. Disinformation and ignorance foster discriminatory practices and policies towards workers by employers, colleagues, and users of such institutions.(35)

In Spain, the analysis of the employment situation of transsexuals in the province of A Coruña allowed the identification of the most common discriminatory practices, which have been selected from the cases of the people interviewed:(36)

1.   Difficulty obtaining a job, especially during the reassignment process.

2.   Inconvenience to access jobs in education due to the stigma that some parents have and jobs facing the public (receptionist, waiter/waitress, etc).

3.   Fear of possible adverse reactions within the work environment.

4.   The dress of the transsexual employee is conditioned according to the sex that the employer decides.

5.   Rejection by the work environment (colleagues, clients, etc.). On the other hand, the hypotheses of this work have been corroborated, considering the results acquired in the data analysis.

 

This research's central hypothesis was that "the labor market stigmatizes and excludes the transsexual collective, which causes them to live in a state of precariousness. “It is supported by the data collected throughout the data analysis because the statistics, the perception of the rest of the population, the different proposals for labor inclusion, and the experiences of transsexual people themselves support this hypothesis.(36)

In Uruguay, progress has been made in sexual diversity by sanctioning and implementing an essential battery of guaranteeing laws: laws of the Concubinary Union, of Change of Name and Sex Registration, Equal Marriage, and Assisted Reproduction. Likewise, specific policies have been implemented for trans persons, such as the allocation of the Uruguay Social Card (TUS), affirmative actions for labor inclusion, training activities on public policies and sexual diversity, cultural activities such as participation in the Llamale H, and 19 Arteries film festivals, and the institutionalization of the TRANSFORM debate seminar; an Advisory Council on Sexual Diversity has been created; and the generation of research lines on the subject has been supported.(37)

Of all the measures implemented, this work will develop two actions for the labor inclusion of trans persons: a) the single call for the entry of trans persons in the public administration in 2013; b) the entry quota for trans persons in the protected employment program Uruguay Trabaja.(37)

 

National studies:

“La revolución de las Mariposas. A diez años de La Gesta del Nombre Propio” is a work carried out collectively, promoted by the Ministerio Público de la Defensa de la Ciudad Autónoma de Buenos Aires together with the Bachillerato Popular Trans Mocha Celis, oriented to the trans population. This work proposes and incorporates transvestites and transsexuals as research subjects and not only as objects of study.(38)

According to the data collected in the research La Revolución de las Mariposas, 70 % of trans women never attended a job interview after assuming their gender identity. Within the remaining 30 %, many went through experiences of discrimination at the time of submitting a resume or facing an interview.(38)

A theoretical study developed by Julian Ortega analyzes the public policies implemented by the Argentine State to promote the labor inclusion of trans women in the formal labor market. It is based on theoretical developments in labor informality to describe the current situation of trans women. The main objective is to find out the opinion of state agents on the public labor policies offered by the State for the insertion of trans women. A qualitative methodological approach was chosen by conducting five interviews with key informants in state agencies related to labor, human rights, and sexual diversity. The material was interpreted based on reports and documents from official agencies and social activist organizations. Among the results found, three actors of importance in the design of public policies stand out: the transgender population, employers, and the role of the State. It is concluded that the effective labor insertion of trans women in Argentina is a pending challenge.(39)

Another theoretical work proposed by Karina Iummato investigates the difficulties of labor insertion of the transgender collective and, about this, the conformation of their work identity based on the employment policies designed for their labor inclusion by the National Ministry of Labor, Employment and Social Security. Within the framework of Law 26743 Right to Gender Identity sanctioned in 2012, which strengthens their political visibility as a collective and as citizens with rights, the Ministry of Labor, Employment and Social Security of the Nation, through the Secretary of Employment, begins to implement the “Line of Labor Inclusion for Transvestites, Transsexual, and Transgender people,” “as part of public policies for their insertion in the labor market and for equal access to decent employment.” The line assumes that the different tools already available to the Ministry for the unemployed population will be facilitated for this group, “generating a floor of social protection.” Through the analysis of an experience of strengthening the Ministry into a work cooperative that develops in the field of theater, in-depth interviews will be conducted with members of the participating trans collective to explore what perceptions and practices are modified in their daily lives, how the state device operates in all its instances, and thus begin to know the impact of this public policy in their labor trajectories.(40)

Maira Liliana Marcos analyzed Transsexuality and access to work. The Bonaerense State and the Law of transvestite/trans labor quota, from 2016 to 2020. This study concludes that there is resistance to implementing Law No. 14,783. Such resistances arise fundamentally from a “double saying” that implies that while adherence to the Law is sustained, relevant actions tending to make it effective are not generated (or were generated).(41)

In particular, under María Eugenia Vidal's administration in the Buenos Aires province, the new hires that took place were not “identified” since they were contracts where it was not stated that such personnel were hired within the framework of Law No. 14,783. Understanding that this information is not necessarily of interest to whoever accesses the position, it should be of interest to the provincial State itself in order to be accountable to the citizens in general since there is a law that obliges to account for and, fundamentally, reserve those quotas (since they are not identified, if a trans worker resigns or terminates his/her contract, nothing would prevent the vacancy to be filled with a cisgender worker, which in the framework of Law No. 14,783 is forbidden). The change of the head of the PEP in charge of Axel Kicillof did not result in making these data visible or systematizing them, understanding that according to the official response provided by the competent area to control compliance with the quota law.(41)

Undoubtedly, access to formal employment implies economic autonomy and the possibility of education, training, and social security.

In the specific context of the province of Misiones, the transgender community continues to be marginalized, and the situation is worsening despite legislative advances. Many of them lack access to education and training, making it impossible to access quality jobs, leading them to develop mainly informal activities such as masonry, gardening, design, garment cutting, sewing, or hairdressing. At the same time, they continue to “endure” all kinds of abuses, harassment, and discrimination not to lose their only source of income. In an alarming number of cases, they have as their only alternative the exercise of prostitution.(42)

The labor issue puts on the table the need for recognition and visibility of the whole community of dissident, non-binary sexualities in the province of Misiones. This community does not cease to be the object of political struggles, especially in election year.(42)

The labor situation of the Trans collective puts on the table the need for recognition and visibility of all the rights of the LGBTQI+ community, a recognition that leaves the paper or the legal to be lived in the street, that runs from the most platonic idea of the ideal world to the real world. Since 2017, the need for the Trans Labor Quota Law has been vigorously promoted, which continues. The need for this Law, of an urgent nature, for this collective is undoubtedly minimal in the face of the vulnerability they live. However, it is a necessary step if we want to achieve a more equitable and egalitarian society.(42)

Guiñazu et al. (2018) investigate the level of access to formal employment of the Trans Collective in the city of La Plata. To do so, we will take into account the legislation in force from Provincial Law No. 14,783 (or Trans Labor Quota Law), the National Law No. 26,743 (or Gender Identity Law), and at the International level, the Universal Declaration of Human Rights (1948) and the Yogyakarta Principles (2007). The purpose of the research was social. Therefore, we cannot turn a deaf ear to the legislation regulating us as citizens and future professionals. This study shows the significant disadvantages faced by trans people at the labor level, not only in the State sphere (which is the quota stipulated by law) but also in private spheres.(43)

 

CONCLUSIONS

After the development of this research, it was described how the gender stereotypes of the hetero-patriarchal system interfere negatively with the labor market insertion of trans women.

In this sense, it should be noted that, although trans people have always existed, they have been recognized and accepted or persecuted and punished to a greater or lesser extent depending on the socio-historical moment and the eagerness of societies to sustain the modes of production of wealth through the functionality of sexual binarism. At the same time, they have been victims of harassment, abuse, and systematic discrimination, which places them in a disadvantageous situation both when searching and in the labor market insertion process.

This research constitutes a contribution to put into context the current situation of this group in the labor area, which serves as a theoretical basis for the development of future debates, as well as the contextualization and evaluation of public policies.

One aspect in which a notorious change was observed was in the social and political participation of the trans collective after the sanctioning of a set of sequential laws that have contributed to the improvement of the conditions for labor insertion to be more favorable; in turn, at a general level, these legal mechanisms contribute to the visibility and recognition of the collective in the formal labor sphere.

The recent research analysis highlights the inequalities and exclusions that this group still suffers, both internationally and locally. Specifically in Argentina, it is observed that years after the passing of the Gender Identity Law and the achievements made in recent years in recognition, there is still resistance to change and evident forms of discrimination against this group regarding labor market insertion.

The interviews show a need for more knowledge from recruiters about the labor hiring process.

Based on these results, it is necessary for a more significant commitment to the implementation of public policies, as well as the awareness of both public and private companies, in order to implement new interventions oriented to the containment and thought in the specificities that this population requires, in order to guarantee this group the whole exercise of their rights in the labor environment.

 

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FINANCING

No financing.

 

CONFLICT OF INTEREST

The authors declare that there is no conflict of interest.

 

AUTHORSHIP CONTRIBUTION

Conceptualization: Alan Cirulli, Abigaíl Godoy.

Research: Alan Cirulli, Abigaíl Godoy.

Methodology: Alan Cirulli, Abigaíl Godoy.

Drafting - original draft: Alan Cirulli, Abigaíl Godoy.

Writing - proofreading and editing: Alan Cirulli, Abigaíl Godoy.