MercoPress. South Atlantic News Agency

STF extends domestic violence protection to same-sex couples and trans women

“External physical traits are one factor, but not the sole determinant of gender,” De Moraes argued

In a virtual plenary decision last week, Brazil's Supreme Federal Court (STF) ruled in favor of extending the protection against domestic violence provided for in the so-called Maria da Penha Law to same-sex couples and trans women, thus acquiescing to a request from the Brazilian Association of HomoTransAffective Families, which argued that the National Congress has failed to legislate on the matter.

Case rapporteur Justice Alexandre De Moraes stated that the lack of a rule extending the Maria da Penha Law's protection “could create a gap in safeguarding victims and punishing domestic violence.” In his vote, the magistrate argued that “since the Maria da Penha Law was created to protect women from domestic violence—recognizing their cultural subordination in society—it can also be applied to male same-sex couples when contextual factors place the male victim in a subordinate position within the relationship.”

He also pointed out that “gender identity, though social, is a fundamental aspect of personality, encompassing the right to identity, intimacy, privacy, freedom, and equal treatment, all of which are safeguarded by the overarching principle of human dignity.”

Regarding transgender women and transvestites, De Moraes construed the term “woman” in the Maria da Penha Law as encompassing both biological sex and gender identity. He emphasized that “external physical traits are one factor, but not the sole determinant of gender.”

De Moraes added in his ruling that “the state has a duty to ensure protection in the domestic sphere for all types of family structures.”

Enacted in 2006, the Maria da Penha Law provides measures to protect domestic violence victims, including special courts, emergency protective orders, and victim assistance.

In its 2022 report, the National Council of Justice revealed that homicide was the most common crime against transvestites and gay individuals, accounting for 80% and 42.5%, respectively.

For lesbians, the most prevalent crimes were bodily injury (36%) and insults (32%). Trans women, on the other hand, were most frequently victims of threats (42.9%).(Source: Agencia Brasil)