Aspectos jurídicos e sociais da aplicação da lei maria da penha às mulheres trans

Abstract

Law No. 11.340/2006, better known as the Maria da Penha Law, creates mechanisms to curb domestic and family violence against women. In terms of article 5 of the mentioned legal diploma, domestic and family violence against women constitutes any action or omission based on gender that causes death, injury, physical, sexual or psychological suffering and moral or property damage. Because the legislator uses the word “gender”, the grammatical and teleological interpretation of the law allows transgender women to be protected by said law, as well as cisgender women. This is an explanatory research that deigns to define the concept of “gender” used by the interpreter of the Maria da Penha Law in the judgment of REsp. n° 1977124 / SP 2021/0391811-0, with subsequent qualitative analysis of the types of female vulnerability, experienced by both trans women and cis women, with the aim of investigating the coherence of the extension of the Maria da Penha Law to transgender women. It is observed that, regarding to domestic violence, female vulnerability cannot be considered taking into account only biological imperatives, on the contrary, social factors that affect the female gender as a whole must be analyzed, but it must be done reservations regarding the use of the gender criterion to the detriment of the biological criterion.