Introduction
In 2021, it was identified that Brazil represented the Country with the majority of murders of trans and gender-diverse people (Transrespect versus Transphobia Worldwide, 2021). Such data demonstrates the vulnerability of transgender women in Brazil, as well as the necessity of measures for their protection.
In 2006, the Brazilian State adopted the Maria da Penha Law (2006), which aims at preventing and restraining domestic and family violence against women. The Law makes no explicit mention of transgender women, which leads to uncertainty in its applicability. Nonetheless, in 2022, the Brazilian judiciary reached a landmark decision, finding that the law applies to transgender women.
Based on this significant ruling, the present article will indicate the importance and history of the Maria da Penha Law, and then address the main aspects of the decision. Lastly, it will analyse how the decision fits amongst international human rights standards regarding the protection of transgender women.
The creation and main aspects of the “Maria da Penha” Law
Law No. 1134/2006 is named after Maria da Penha Maia Fernandes, a Brazilian woman that suffered from two attempted murders by her then-husband. In 1983, she was shot during her sleep, which led her to suffer from paraplegia, and in the following attempt, she was electrocuted while bathing. Even though her ex-husband was convicted in two trials, the case still did not have a final ruling by 1998 (Spieler, 2011).
Maria da Penha’s case was brought before the Inter-American Commission on Human Rights (IACHR) in 1998, on the basis that the Brazilian State “condoned the situation for more than fifteen years” (Spieler, 2011, p. 122). In Report no. 54/01 (2001), the IACHR found Brazil had violated her rights to a fair trial and judicial protection, as well as Article 7 of the Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará). It recommended that the State should conduct a serious investigation to establish the criminal liability of the perpetrator, and to pay fair compensation to the victim. It also found that there was a pattern of discrimination in Brazil, leading to the recommendation of “the adoption of measures at the national level to eliminate tolerance by the State of domestic violence against women” (Maria da Penha Maia Fernandes, 2001, §3).
Brazil has taken steps in order to implement the recommendations, which led to the adoption of the Maria da Penha Law in 2006 (Spieler, 2011). The Law aims at preventing and restraining family and domestic violence against women, as well as establishing measures of assistance and protection for women experiencing this. Article 2 of the Law affirms that every woman is entitled to human rights, regardless of class, race, sexual orientation, age, religion, etc. It clarifies that domestic and family violence against women amounts to any action or omission based on gender that causes death, injury, physical, sexual or physiological suffering, and moral or patrimonial damages (Maria da Penha Law, 2006).
The Law includes several forms of protection for women, including medical assistance, measures to preserve their physical and psychological integrity, and the adoption of provisional measures by the judge, including the suspension of gun possession, removal of the aggressor from the home, payment of alimony and imprisonment of the aggressor at any phase of the proceedings (Maria da Penha Law, 2006). Therefore, the Maria da Penha Law is considered as innovative, as it creates mechanisms for the protection of women (Spieler, 2011).
The Superior Court of Justice’s ruling on the applicability of the Law to transgender women
After the adoption of the Maria da Penha Law, there was not a consensus among national courts regarding its applicability to transgender women, which mostly denied such protection. On April 5th, 2022, the Superior Court of Justice of Brazil (STJ) reached an unprecedented decision in the trial of the Special Appeal no. 1.977.124/SP, deciding that the Law applies to transgender women victims of domestic or family violence (De Souza et al., 2022).
In the case, a trans woman was beaten by her father, and thus requested protective measures on the terms of the Maria da Penha Law, which were denied in the first instance. The decision was upheld by the Court of Justice of the State of São Paulo, mainly based on the view that “man” and “women” are biological concepts that cannot be altered (De Souza et al., 2022).
Nonetheless, the STJ overruled the decision, based on one main premise: transgender women are women. It firstly clarifies that the rights at stake refer to a vulnerable category of human beings, which cannot be objectively reduced to an exact science. The Court also elucidates that while sex refers to biological characteristics, gender is a social and cultural construction, based on the interaction between man and women. Thus, biological characteristics do not define gender identity. It further highlights a previous decision of the Supreme Court of Brazil that supports the understanding that transgender women are women, as it establishes that the alteration of the civil register does not depend on sexual reassignment surgery. Therefore, denying the applicability of Law in this case would be denying protection to those it aspires to safeguard, which includes all women, including transgender (Special Appeal nº 1977124 – SP, 2022).
With these considerations, the Superior Court of Justice unanimously upheld the appeal, recognising the violation of the Maria da Penha Law and determining the imposition of the preventive measures requested by the victim (Special Appeal nº 1977124 – SP, 2022).
International human rights standards concerning transgender women
Under international law, no binding instruments specifically address LGBT rights (Gallagher, 2020). Still, Brazil is a party to certain international instruments that are useful in the context of domestic violence against transgender women.
The Convention of Belém do Pará is relevant for the present analysis, representing the first international binding instrument that criminalizes violence against women (Rodriguez, 2022). In Article 1, it defines violence against women, which amounts to acts or conducts based on gender (Convention of Belém do Pará, 1994). In June 2021, the Inter-American Court of Human Rights issued a ruling in the Vicky Hernández et al. v. Honduras case, analysing the inclusion of transgender women in the term “women” within the Convention. In its reasoning, the Court referred to its Advisory Opinion OC-24/17, where it found that gender identity is defined as “the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth” (Inter-American Court of Human Rights, 2017, p. 45). In the end, also considering an evolutionary interpretation, the IACHR found that gender-based violence against transgender women is included in the Convention of Belém do Pará ( Inter-American Court of Human Rights, 2021).
In analysing the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), it is argued that the term “women” includes trans individuals, based on the rules of interpretation contained in Article 31 of the VCLT (Meyer, 2016). Additionally, CEDAW General Recommendation no. 28 states that the Convention “covers gender-based discrimination against women”, and clarifies that “gender” refers to “socially constructed identities” (United Nations Committee on the Elimination of Discrimination against Women, 2010, p. 2).
In addition, the Yogyakarta principles support this interpretation, as it defines “gender identity” as “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth” (The Yogyakarta Principles plus 10, 2017, p. 10).
From the analysis of the international legal framework, mainly the IACHR decision, it becomes clear that the international community leans towards the acceptance of transgender women within the protection of “women” in international law.
Conclusion
Based on these considerations, it is found that the decision of the Brazilian Superior Court of Justice is in conformity with the current tendency in international law to protect transgender women within women’s rights. However, the ruling is only legally binding to the parties of the case, meaning there may still be controversy and uneven applicability of the Maria da Penha Law to transgender women in Brazil.
Despite the many challenges faced in Brazil, the adoption of the Maria da Penha Law as a result of the work of the IACHR is a meaningful development in the protection of women victims of domestic violence. STJ’s decision on the inclusion of transgender women within such protection is a significant step in the recognition of LGBT rights in the State, providing an authoritative interpretation of the Law.
Bibliography
Brazil. (2006, August 7). Law nº 11.340 (Maria da Penha Law). Retrieved November 19, 2022, from http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2006/lei/l11340.htm.
De Souza, R. S., de Andrade, S. P., & de Almeida, M. C. S. (2022, May 25). STJ’s Decision Determines that Maria da Penha Law Applies to Transgender Women. Legal Intelligence Center. Retrieved November 21, 2022, from https://www.machadomeyer.com.br/en/recent-publications/publications/institutional/stj-s-decision-determines-that-maria-da-penha-law-applies-to-transgender-women.
Gallagher, R. (2020). Redefining “CEDAW” to Include LGBT Rights: Incorporating Prohibitions Against the Discrimination of Sexual Orientation and Gender Identity. Southern California Interdisciplinary Law Journal, 29(4), 637-658. Retrieved November 21, 2022, from https://gould.usc.edu/why/students/orgs/ilj/assets/docs/29-4-Gallagher.pdf.
Inter-American Commission on Human Rights. (2001). Maria da Penha Maia Fernandes (Report nº 54/01). Retrieved November 20, 2022, from http://cidh.org/annualrep/2000eng/ChapterIII/Merits/Brazil12.051.htm.
Inter-American Court of Human Rights. (2017). Advisory Opinion OC-24/17. Retrieved November 20, 2022, from https://www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdf.
Inter-American Court of Human Rights. (2021). Vicky Hernández et al. v. Honduras. Retrieved November 20, 2022, from https://www.corteidh.or.cr/docs/casos/articulos/seriec_422_ing.pdf.
International Commission of Jurists. (2007, March). Yogyakarta Principles – Principles on the application of international human rights law in relation to sexual orientation and gender identity. Retrieved November 20, 2022, from https://www.icj.org/yogyakarta-principles/#:~:text=The%20ICJ%20and%20the%20International,sexual%20orientation%20and%20gender%20identity.
Meyer, E. (2016). Designing Women: The Definition of “Woman” in the Convention on the Elimination of All Forms of Discrimination Against Women. Chicago Journal of International Law, 16(2), 553-590. Retrieved November 21, 2022, from https://chicagounbound.uchicago.edu/cjil/vol16/iss2/7.
Organization of American States. (1994, June 9). Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará). Retreived November 19, 2022, from https://www.oas.org/en/mesecvi/convention.asp.
Organization of American States. (2011, September 2). Rules of Procedure of the Inter‐American Commission on Human Rights. Retrieved November 19, 2022, from http://www.oas.org/en/iachr/mandate/Basics/RulesIACHR2013.pdf.
Rodriguez, S. (2022, March 29). Violence Against Women: Landmark Cases and Legal Standards in the Inter-American System. International Law and Policy Brief. Retrieved November 20, 2022, from https://studentbriefs.law.gwu.edu/ilpb/2022/03/29/violence-against-women-landmark-cases-and-legal-standards-in-the-inter-american-system/.
Spieler, P. (2011). The Maria da Penha Case and the Inter-American Commission on Human Rights: Contributions to the Debate on Domestic Violence Against Women in Brazil. Indiana Journal of Global Legal Studies, 18(1), 121-143. Retrieved November 20, 2022, from https://www.repository.law.indiana.edu/ijgls/vol18/iss1/6/.
Superior Court of Justice of Brazil. (2022, April 5). Special Appeal nº 1977124 – SP (2021/0391811-0). Retrieved November 19, 2022, from https://scon.stj.jus.br/SCON/GetInteiroTeorDoAcordao?num_registro=202103918110&dt_publicacao=22/04/2022.
TMM Update TDoR 2021. (2021, November 11). Transrespect versus Transphobia Worldwide. Retrieved November 21, 2022, from https://transrespect.org/en/tmm-update-tdor-2021/.
UN General Assembly. (1979, December 18). Convention on the Elimination of All Forms of Discrimination Against Women. Retrieved November 19, 2022, from https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.
United Nations Committee on the Elimination of Discrimination against Women. (2010, December 16). General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women. Retrieved November 19, 2022, from https://digitallibrary.un.org/record/711350.
