Feminicídio quanto às mulheres trans: uma abordagem jurídica atual.

Abstract

The present work aims to carry out a critical and jurisprudential analysis regarding the application of the Maria da Penha Law and the Feminicide Law. As regards Law 11.340 /2006, the legislator did not offer obstacles to its application to transsexual, transvestite and transgender women, since it uses the term gender in its legal wording. In analyzing the Law of Feminicide, it has drastically restricted the understanding by making use of the term female sex only for women of the female biological sex. Thus, it is necessary to approach the concepts of biological sex, gender and gender identity. The doctrine also diverges on the extension or not of the Law of the Feminicide to the trans women in three doctrinal currents on the subject: the first one based on the biological criterion; the second in the legal / documentary criterion; and the third is the psychological criterion, which is best suited to the social needs. In this sense, the work has the following problematic: why does the legislator include trans women in the Maria da Penha Law and does not include them in the Law of feminicide, whose legal object is the most relevant of the legal order - life. In order to do so, it is a brief approach to the historical context as to the position of the female figure in the context of subordination and submission to man, which until today triggers gender violence. In order to achieve the objectives, the method of deductive approach and bibliographical and documentary research technique were used, having as primary sources the laws, jurisprudence and doctrines of renowned jurists, who deal with the problem; as well as secondary sources: scientific articles, collection of data from the General Balance 2015 and ANTRA 2017, magazines and texts pertinent to the theme. It is concluded that conservatism is still present in the National Congress, and it is up to the prerogative to widen the role of Law 13.104 / 15 with the exhaustive inclusion of trans women, thus not applying it extensively, adopting a form of interpretation that impinges with the principle of analogy in malam partem, which is forbidden by law, since such a rule would be detrimental to the defendant, and especially by visualizing the alarming and increasing numbers of homicides that victimize trans women.