In early April of this year, the Sixth Panel of the Superior Court of Justice (STJ) in Brazil unanimously agreed that Law 11,340/2006, the Maria da Penha Law (LMP), extends to and applies to cases of domestic or family violence against transgender women.
The Court understood that the aggressions suffered by the victim (a transgender woman), committed by her father in her home, reached the provision of article 5 of the LMP, configuring violence based on gender and not on biological sex, and determined the application of the measures protective measures required under art. 22 of the aforementioned Law.
The appeal by the Ministry of the State of São Paulo to the STJ for recognition of the right to apply the LMP for a trans woman was the third attempt, as the lower court and the São Paulo Court of Justice (TJSP) denied the claims, considering that the LMP referred only to biological sex. This statement by the two lower courts contradicted Recommendation 128 of the National Council of Justice (CNJ), which observes a protocol for trials with a gender perspective.
The thesis itself in this trial involved questioning the applicability of the PML to trans women. Although the LMP refers to violence based on gender, the courts of first and second instance applied the understanding of violence based on biological sex.
The controversy, therefore, is summarized in an excerpt from the decision of the rapporteur in the STJ, Minister Rogerio Schietti, who states:
“This judgment deals with the vulnerability of a category of human beings [pessoas trans], which cannot be reduced to the objectivity of an exact science. Human existences and relationships are complex, and the law should not be based on shallow, simplistic and reductionist discourses, especially in these times of naturalization of hate speech against minorities”.
It must be considered that the Direct Action of Unconstitutionality by Omission nº 26 and the Writ of Injunction 4733 criminalized homophobia and transphobia in the molds of Law 7716/89, equating to the crime of racism.
The Courts of 1st and 2nd instance provoke the STJ
The issue of violence against trans women and their claim to the remedies provided for in the LMP and in Law No. leading the cases to discussion in the STJ, as occurred above.
In 2019, the 3rd Criminal Class of the Court of Justice of the Federal District and Territories decided that the concept of femicide should reach transgender women in the case of an attempted femicide based on hatred of the victim’s transsexual condition, characterizing contempt and gender discrimination. victim’s female (who had a change in the civil registry).
A recent decision of the STJ of December 15, 2020, within the scope of HC 541237/DF, determined that it is the Jury Court who must delimit the application or not of the femicide qualifier to the transsexual victim.
In this case, the Public Defender’s Office of the Federal District had filed a habeas corpus to rule out the application of the femicide qualifier, which was denied by the STJ, as it found that in the assault on the victim, the defendants characterized contempt for the condition of woman, by verbalizing to the victim “turned into a man”.
Being transgender in Latin America is torture
Disrespect for pronouns, social names and gender identities, physical, emotional, sexual violence, as well as suicides and murders are part of the violent context of the reality of trans people.
According to the 2022 Dossier of the National Association of Transvestites and Transsexuals of Brazil (Antra), three out of four trans women and transvestites suffer some type of violence throughout 2021.
Antra highlights that, in 2021, there were 140 murders of trans people, of which 135 were transvestites and transgender women and 05 cases of trans men – pointing out Brazil as the most lethal country compared internationally.
The report “Transrespect versus Transphobia Worldwide” by the NGO Transgender Europe (TGEU) highlights that four out of 10 murders of trans people in the world occur in Brazil.
The report “La cartografia de los asesinatos de las personas trans y de genera diverso”, by the Observatory on Violence Against Trans Persons in Latin America and the Caribbean, points out that in the region there were 277 cases in 2020, with a concentration of victims aged up to 30 years and sex professionals.
The “Legal Mapping Report of the International Lesbian, Gay, Bisexual, Trans and Intersex Association”, 2019, points out that Latin America is a space of proximity and contrasts in the rights of trans people.
Gender recognition has been approved in eleven countries in the region. However, recognition by self-determination without proof of surgical interventions occurs only in Bolivia, Brazil, Chile, Costa Rica and Ecuador. Uruguay is the only country where there is specific legislation guaranteeing the rights of transgender people.
At the same time, the issue of prostitution remains and its direct criminalization associated with the activities of sex workers (where trans people find a source of income, in view of their exclusion from the formal employment system) — as in Argentina, where the Organized prostitution is illegal, but “private” is not, as long as it is not carried out on public roads.
Or indirect criminalization by means of a fine — as in the case of Uruguay, which, despite legally recognizing sex work, ends up delimiting hours, clothing and behaviors “that do not affect the sensitivity of the families”.
Or the suspended criminalization, in cases such as in the Dominican Republic, where the penal code provides for prostitution as a crime, but the country’s Supreme Court decided to decriminalize prostitution, keeping only pimping as a crime.
There is also the criminalization of sexual relations between people of the same sex (and with/between trans people), which still occurs in Belize; or in the case of a moral attack on good customs, in Chile, Colombia, Ecuador and Peru.
For an Agenda for the Rights of Trans People
The claim for rights of trans people in Brazil and Latin America permeates the affirmation of subjects of rights, mobilizing and associating the category “gender” with sex as interdependent in social construction along with violence and inequality.
This measure even had echoes from the movement made since the decision of the United States Supreme Court, when deciding that trans people cannot suffer discrimination at work.
A legal movement that adds the defense of rights and affirmation to life without violence is reinforced. Laws do not prevent or even end, by themselves, violence, but they are a step in the demand for State action in defense of trans people. Consequently, they force confrontation with laws that they criminalize, in order to have them repealed.
The meaning, therefore, is to rewrite the normative basis that serves as an interpretation of disputes so that trans people can exercise the same rights and prerogatives as those who exercise the majority in society. It’s a long road to consolidating an agenda, but one that comes with no turning back.
