In early April of this year, the Sixth Panel of the Brazilian Superior Court of Justice (STJ) unanimously held that Law 11.340/2006 (Maria da Penha Law – MPL) extends 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 his home, reached the provisions of art. 5 of the MPL, configuring violence based on gender and not biological sex, and determined the application of protective measures requested under Art. 22 of that Law.
The appeal of the Ministry of the State of São Paulo to the STJ for the recognition of the right to the application of the MPL for a trans woman was the third attempt, because the first level judge and the Court of Justice of São Paulo (TJSP) denied the pleas, considering that the MPL referred only to the biological sex. This statement by the two lower courts went against 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 MPL to trans women. Even though this Law refers to gender-based violence, the courts of the first and the second instances applied the understanding of violence based on biological sex.
The controversy, therefore, is summarized in an excerpt from the decision of the reporting justice in the STJ, Rogerio Schietti, who states: “This trial deals with the vulnerability of a category of human beings [transgender people], which cannot be summarized in the objectivity of an exact science. Existences and human relations 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 Injunction Mandate 4733 criminalized homophobia and transphobia under Law 7716/89, equating it to the crime of racism.
Courts of 1st and 2nd instances provoke Brazilian Superior Court of Justice (STJ)
The issue of violence against trans women and their claim to the remedies provided in the MPL and in the Feminicide Law (Law No. 13,104/2015) is the subject of dispute in first instance courts and in the collegiate panels of Courts of Justice in Brazil, which end up taking the cases to the STJ for discussion, as occurred in the aforementioned case.
In 2019, the 3rd Criminal Panel of the Court of Justice of the Federal District and Territories ruled that the concept of feminicide should reach transgender women in the case of an attempted feminicide based on hatred for the victim’s transgender condition, characterizing contempt and discrimination to the victim’s female gender (who had a change in civil registration).
A recent STJ decision of December 15, 2020, in HC 541237/DF, determined that it is the Jury Court that must determine whether to apply the feminicide qualification to the transgender victim.
In this case, the Public Defender’s Office of the Federal District had filed a habeas corpus petition in order to rule out the application of the feminicide qualification, which was denied by the STJ, as it considered that in the aggression against the victim, the accused characterized contempt for the woman’s condition, by verbalizing to the victim to “turn into a man”.
Being transsexual in Latin America is torture
Disrespect for pronouns, social names, gender identities, physical, emotional, and sexual violence, as well as suicides and murders, are part of the violent conjuncture of the reality of trans people. According to the Dossier 2022 of the National Association of Transvestites and Transsexuals of Brazil (ANTRA), 3 out of 4 transvestite women and transvestites suffer some kind of violence throughout 2021.
ANTRA highlights that in 2021 there were 140 murders of trans people, 135 of them transvestites and transgender women, and 05 cases of transgender men – pointing Brazil as the most lethal country internationally comparing. The report Transrespect versus Transphobia Worldwide by the NGO Transgender Europe (TGEU) highlights that in Brazil 4 out of 10 murders of trans people occur worldwide.
The report La cartografía de los asesinatos de las personas trans y de género diverso from the Observatory on Violence Against Trans People in Latin America and the Caribbean points out that in the region there were 277 cases in 2020, with a concentration of victims up to 30 years old and sex professionals.
The International Lesbian, Gay, Bisexual, Trans and Intersex Association’s 2019 Legal Mapping Report points out that Latin America is a space of proximity and contrasts in the right of trans people. Gender recognition has been approved in eleven countries in the region, however, recognition for self-determination without proof of surgical interventions, only occurs in Bolivia, Brazil, Chile, Costa Rica, and Ecuador. Uruguay is the only country in which there is specific legislation guaranteeing the rights of trans people.
At the same time, there is the permanence of the issue of prostitution and its direct criminalization associated with the activities of sex professionals (in which trans people find a source of income, given the exclusion in the formal employment system) as in Argentina, where organized prostitution is illegal, but “private” prostitution is not, as long as it is not performed on public streets. Or indirect criminalization through fines, as in the case of Uruguay, in which, even though it legally recognizes sex work, it ends up limiting hours, dress, and behavior “that do not affect the sensibility of the families”. Or suspended criminalization, like in the Dominican Republic, where the Penal Code establishes prostitution as a crime, but the country’s Supreme Court decided to decriminalize prostitution, keeping only procuring as a crime. There is also the criminalization of sexual relations between people of the same sex; between transgender people or sexual relations with transgender people. This criminalization occurs in Belize. There is also the case of moral offense to good morals in Chile, Colombia, Ecuador, and Peru.
Toward a Trans Rights Agenda
The claim for rights of trans people in Brazil and Latin America goes through the affirmation of subjects of rights, mobilizing and associating the category “gender” to sex as interdependent in social construction along with violence and inequality. Such measure, inclusive, had echoes from the movement after the decision of the Supreme Court of the United States that trans people cannot suffer discrimination at work.
It reinforces a legal movement that adds the defense of rights and the affirmation of life without violence. By themselves, laws do not prevent or even stop violence, but they are a step to demand the State’s action in defense of trans people. Consequently, this Laws force the confrontation with criminalizing laws in order to be repealed.
The meaning, therefore, is to rewrite the normative basis that serves as an interpretation for litigation so that trans people can exercise the same rights and prerogatives as those in the majority in society. It is a long way to consolidate an agenda, but it is coming with no turning back.
Translated from Portuguese by Janaína Ruviaro da Silva