In an unprecedented decision, the 6th Panel of the Superior Court of Justice (STJ) decided, on April 5, that the Maria da Penha Law (Law 11.340/06) applies to cases in which the victims are transgender women. The decision was rendered in the trial of Special Appeal 1,977,124, referring to the case of a trans woman beaten by her own father, who did not accept the fact that she identified with another gender. The woman requested protective measures provided for in the Maria da Penha Law, including the removal of the aggressor from their home.
Although the appeal is not under Repetitive Regimen and, therefore, the understanding is valid only for the case in question, the position of the Supreme Court represents an important advance of the Judiciary System consolidating a more inclusive society.
The Maria da Penha Law came into force in August 2006 aiming at preventing and reducing domestic and family violence against women. Its creation is linked to the emblematic case of a pharmacist from Ceará called Maria da Penha, victim of a double attempt at feminicide by her ex-husband in 1983. Due to the assaults, Maria da Penha ended up becoming quadriplegic. Although her husband was convicted in two trials (in 1991 and 1996), the sentence was not executed due to procedural reasons.
Considering the Brazilian Justice’s neglect, the Inter-American Court of Human Rights convicted Brazil in 2001 of omission and negligence in relation to domestic violence committed against its female citizens. Under pressure, the arrest of Maria da Penha's husband was finally ordered in 2002, 19 years after the crime was committed, and close to statute of limitations.
Since then, the scope of the Maria da Penha Law has been determined by the state courts of justice, which, as a rule, had been denying transgender women the possibility of using the prerogatives of the law for their protection, claiming that the legislation would not apply to them due to their biological sex.
In the present case, in the first instance, the judge denied the protective measures required because in his interpretation, the expression "gender" would only include female biological sex, and, therefore, it would not apply to the case. In judging the appeal filed by the Public Prosecutor's Office of São Paulo, the Court of Justice of São Paulo upheld the sentence, justifying that "woman" and "man" would be scientific and biological concepts, thus making it impossible to apply the Maria da Penha Law to trans women.
The Public Prosecutor's Office appealed to the STJ arguing that the Maria da Penha Law itself determines that it applies to the female gender and not to the female biological sex. It would therefore be up to the mere literal application of the law, in respect of its article 5, which constitutes as domestic and family violence against women any action or omission based on their gender that causes their death, injury, physical, sexual or psychological suffering and moral or property damage.
In an extremely well-reasoned vote, containing case laws, doctrines, statistical data and explanatory tables, the minister rapporteur of the appeal, Rogério Schietti, discusses the difference between gender, sex and gender identity, establishing as a premise: "a trans woman is in fact a woman".
The minister stressed the existence of transphobia in Brazilian society, emphasizing that Brazil is the record-breaking country in the rates of murders of trans people in the world. The information is confirmed by a study conducted by the National Association of Transvestites and Transsexuals (Antra), according to which at least 140 trans people were murdered last year in Brazil, 135 of them transvestites, numbers that make it the country where the most trans people are murdered in the world for the 13th consecutive year.
In his explanation, the rapporteur also explained that the trial dealt with the "vulnerability of a category of human beings", that cannot be summed up to the objectivity of an exact science. Human existence and relationships are complex, and the Law should not be based on shallow, simplistic and reductionist statements, especially in these times of naturalization of hate speeches against minorities".
To conclude, the Minister stressed that " the preponderance of a purely biological factor is unreasonable in light of what really matters for the incidence of the Maria da Penha Law, with all its protective framework, including jurisdiction to prosecute criminal proceedings arising from crimes perpetrated in situations of domestic, family or affective violence against women".
Following the rapporteur's understanding, the 6th Panel welcomed the appeal of the Public Prosecutor's Office, extending to trans women the application of the Maria da Penha Law and, therefore, its protective measures.
The Decision of the Supreme Court corroborates the constitutional principle of isonomy. It is an example of inclusion and gives new focus to the positioning of Justice in relation to violence against women and trans people. It is expected that this trial will serve as a reference for similar cases and allow trans women to effectively count on the protection of our legal system and Brazil will no longer occupy the shameful leadership among the countries that kill trans people the most in the world.
Sources:
Site Legal Advisor – Conjur: Vote of Minister Rogerio Schietti REsp 1,977,124
STJ website - Maria da Penha Law is applicable to violence against trans women, decides Sixth Class
Dossier Murders and violence against Transvestites and Transsexuals Brazilian in 2021
Maria da Penha Institute website
Crumbs website: STJ: Maria da Penha Law can be applied for transgender women
