Argentina’s mandatory quotas for women in corporate bodies and LGBTQ+ people in public sector jobs

Enrique M Stile
Marval O’Farrell & Mairal, Buenos Aires
ems@marval.com

Camila Figueroa Vinassa
Marval O’Farrell & Mairal, Buenos Aires
cfv@marval.com

Through various measures, Argentinian national and local authorities, and important civil society actors, have implemented affirmative actions to level the playing field for particular groups that have had difficulties gaining entry to certain sectors of society.

Among these measures are recent actions by the national government that set a minimum employment quota to be occupied by transvestites, transsexuals and transgender people in public sector jobs.

Similarly, companies registered in the City of Buenos Aires have been ordered to ensure that the composition of their boards of directors reflect gender diversity. Furthermore, in line with a long-standing law, trade unions are expected to include a certain percentage of women in their administrative bodies.

To transform the structural pattern of inequality that perpetuates their exclusion from the labour market, transvestites, transsexuals and transgender people will now occupy at least 1 per cent of job positions in the public sector, as mandated by Presidential Decree No 721/202 published on 4 September 2020.

According to the decree, the aim of this affirmative measure is to mend the historical situation of vulnerability of the aforementioned groups, which results mostly from the scarce and often zero possibility of accessing the workforce under fair and satisfactory conditions.

With the same intention of achieving a more egalitarian society, the Public Registry of the City of Buenos Aires (PR) had published General Resolutions No 34/2020 and No 35/2020 on 5 and 13 August 2020 respectively. Both resolutions established as a general principle that companies registered in the City of Buenos Aires are required to have equal gender representation on boards and supervisory committees by appointing the same number of women and men.

The PR’s resolutions were perceived as controversial and even received some pushback from certain sectors of Argentinian society, mainly from a formal perspective.

In PR v Linea Expreso Liniers S.A.I.C. re. External Bodies, Linea Expreso Liniers’ main objection was that the gender representation requirement did not arise from statute but from an allegedly incompetent administrative body instead. Thus, the PR lacked authority to impose the requirement. Linea Expreso Liniers also contended that the right of shareholders to freely choose their directors, based on their professional experience, was being violated.

Although Division C of the Argentinian National Commercial Court of Appeals overturned the PR’s decisions, it underscored the importance of affirmative action and its applicability with respect to women and qualified the PR’s intentions as praiseworthy.

Despite that, the court held that in handing down the resolutions, the PR overreached its regulatory authority and the content of the measures necessarily required legislative treatment. Therefore, it overturned the resolutions.

The PR appealed against the judicial decision and issued a new resolution, rejecting it and ratifying the resolutions in dispute.

Another sector traditionally characterised by a lack of female participation is that of trade unions. To reverse that situation, Law No 25,674 establishes a minimum of 30 per cent female representation in elective and representative positions in trade unions.

Although the law was enacted in 2002, it was not until recently that the foundations for its effective fulfillment began to arise.

Accordingly, the General Labor Confederation (CGT) committed to having a certain percentage of women in its board of directors – who will represent either 30 per cent or 50 per cent, as yet to be determined – in its next elections, scheduled for 11 November 2021.

Likewise, the most important industrial union in Argentina, the Metal Workers Union announced in August this year its intention to achieve a 30 per cent female quota in its 8 March 2022 elections.

The outlined measures reveal the clear intention of national and local authorities and civil society actors alike to work towards a more egalitarian society. Through these affirmative action measures, these actors are seeking to reverse the historical exclusions that certain groups have suffered from particular sectors of society.