STF assists public defender and transfers trans woman to female prison

The Federal Supreme Court (STF) responded to a request from the São Paulo Public Defender’s Office and determined that a transsexual woman should serve time in a female prison. The decision was made by Minister Luís Roberto Barroso.

The transfer request had been denied by a judge, due to the fact that the trans woman had not undergone sexual reassignment surgery (change of genitals).

The Public Defender of SP appealed to the STF using a resolution of the National Council of Justice (CNJ) that allows self-declared transsexual, transvestite or intersex people to choose whether they want to be taken to male or female penitentiary units.

For public defender Camila Galvão Tourinho, coordinator of the Specialized Nucleus for Prison Situation (NESC), “the fact that the patient did not undergo gender reassignment surgery does not disqualify her as transgender, it being clear that all the rights provided for in the CNJ resolution apply to her”.

When analyzing the case, according to information from the São Paulo Public Defender’s Office (the body did not disclose the data of the case), Barroso considered that there is already a decision by the STF pointing out the duty of the State to ensure non-discrimination on grounds of gender identity and sexual orientation, as well as to adopt all the necessary measures to ensure the “physical and psychological integrity of incarcerated LGBTQIA+ people”.

“The sex reassignment surgery is not a requirement to recognize the transsexual condition. In this context, I understand that the simple fact that this person has not undergone the surgical act is not a valid basis for refusing to be transferred to a female prison unit.”

Several feminist groups have questioned these measures. The Brazilian core of the Women’s Human Rights Campaign, for example, understands that the presence of trans women without sex reassignment surgery in female penitentiaries may represent a risk to women’s safety.