O desamparo das mulheres trans no ordenamento jurídico penal brasileiro: a adoção de uma concepção jurídica de mulher na aplicação da qualificadora de feminicídio.

Abstract

The present work seeks to analyze the possibility of applying the qualifier of femicide in homicides committed against trans women and the limitations found in view of the principle of legality of Criminal Law. Brazil, unfortunately, occupies the first place in the ranking among the countries that most kill trans and transvestite women, despite the achievements of rights for the LGBTQIA+ population over time. Thus, to solve the problem presented, the deductive method will be used, starting from general premises about the rights of women and the LGBTQIA+ population, seeking specific criminal solutions for homicides committed against trans women in our country. Therefore, this study, at first, will carry out a historical analysis of the Jury Court and its constitutional principles, from the consolidation of this as a fundamental guarantee of the accused. The concepts of sex, gender and identity will also be worked, demonstrating the importance of understanding and differentiating them in the Brazilian legal system, especially in the criminal field. We will also draw a historical retrospective of the rights conquered by the LGBTQIA+ population in Brazil with the depathologization of transsexuality, as well as the changes brought about by the decisions of the Federal Supreme Court, in the concentrated control of constitutionality, which guaranteed the rectification of the civil registry independent of the performance of surgery of reassignment of gender, criminalization of homophobia and transphobia. Once the problem has been demonstrated, the possible conceptions of woman – biological, psychological and legal – will be analyzed, the latter being understood as the one that best suits the application of the qualifier of feminicide, in view of the principle of legality of the Criminal Law and the most favorable interpretation of protection of trans women.