Aplicabilidade da "lei de feminicídio" como qualificadora na violência contra mulheres transexuais.

Abstract

Within the global social and legal scenario, there is a history of exclusion of the GBTQAI+ population regarding the protection of their rights. Historically, there is an attempt to impose a nosological classification on this collective, with emphasis on the transsexual population that only in 2018 had its pathologization of mental disorder removed from the 11th version of the International Statistical Classification of Diseases and Problems Related to Health (ICD). However, the aggressive scenario is still evident; this portion of the population is positioned in a place of marginalization excluded from the family, school and work environment; not even their basic rights are recognized, all due to the dehumanization of their existence, which explains even if unjustifiably the high rate of deaths in this group, given the social legitimacy of the punishments imposed by the aggressors, since the selfidentification transsexual escapes from the standards imposed in a veiled way, which corroborates the absence of commotion regarding the transgression of human rights of trans people. Throughout the text, the numbers involving violence against transsexual women are discussed in a qualitative and quantitative way, which demonstrate the seriousness of the problem in the Brazilian context, given that the country ranks at the top of the world in murders of transsexuals. This time, this study aims to analyze the status of criminal protection granted by the Brazilian legal system in accordance with the victim's vulnerability, who is positioned under two stigmas, the first regarding his recognition as a woman and the second regarding his exclusion in the scope of the qualifier of Feminicide added to the Penal Code through Law 13,104/15. Meanwhile, the study is structured on three primary and progressive points: i) The historical analysis of gender violence and the normative evolution of protection for women; ii) The survey of normative convergences and divergences in the civil and criminal spheres regarding gender and protection of the rights of transsexual women in the national order; iii) The identification of the existence or not of a legislative gap, as well as the search for ways to fill the vacuum in the legal action and protection of transsexual women. It is concluded that the Femicide Law has an important role in combating gender violence with similar roots in the patriarchal culture of which transsexual and/or cisgender women are victims, which is why, as it was done in relation to cisgender women, it is imperative that the protectionism of transsexual women be effective, either through the elaboration of a law aimed at the specific protection of the transsexual population or through the interpretation of the law that favors the realization of their rights and adapts to the right to life and the right to live with dignity already confirmed in the national order and destined to all.