STF to resume judgment on trans in women’s prisons

Summary of this report:

• The STF will resume a virtual trial of an action that asks transgender women to be able to serve time in women’s prisons.
• In 2021, the Court began the trial of the action, suspended after a tie of 5 votes in favor and 5 against. Now the case will be resumed with the participation of Minister André Mendonça, who can break the tie.
• Despite this, in practice the result will bring little change, since in 2020 the CNJ created a resolution that allows transsexuals and transvestites the free choice to serve their sentence in a male or female prison.
• The case is controversial, since in countries where there is greater flexibility regarding the allocation of transgender people in prisons, there are episodes of rape of biological women.

The Federal Supreme Court (STF) will resume this Friday (4) a trial that will decide whether or not transgender and transvestite women, who are biological men, can choose to serve their sentence in women’s prisons, in wards and cells common to the female prison population. The judgment of the action, proposed by the Brazilian Association of Lesbians, Gays, Bisexuals, Transvestites and Transsexuals (ABGLT) will take place in virtual mode, and ministers will have until July 14 to present their votes.

In September 2021, the Supreme Court had started a virtual trial of the measure, which was suspended after the vote tied in five votes in favor of free choice against five votes against – at the time, Minister Marco Aurélio had recently left the Court, which was temporarily with an even number of ministers.

The vote of the rapporteur, Luís Roberto Barroso, maintained the terms of an injunction of his own in force since 2019 that allows transgender women to choose between serving time in a female or male prison. According to the terms of the vote, the allocation of detainees in a reserved area, separate from other detainees, applies only to male prisons.

At the time, Minister Ricardo Lewandowski disagreed with Barroso, pointing out that the action would have become unnecessary after the National Council of Justice (CNJ) created, in October 2020, a resolution that already provides that trans women can choose in which type of prison wish to stay.

With the resumption of the trial, Justice André Mendonça, who took over the chair at the STF after the 2021 trial, will be able to break the tie, or even present a vote with a view contrary to the measure. In practice, however, the result will bring little change, since both Barroso’s vote and the CNJ’s resolution point to free choice of the type of prison.

The measure is controversial, since the CNJ guidelines provide that the simple self-declaration is enough for the person to be seen by the Justice as belonging to another sex, dispensing with the existence of surgery and treatments for sexual reassignment.

The Brazilian nucleus of the NGO International Declaration of Women (Women’s Declaration International), for example, opposes the measure pointing out different risks to the inmates when biological men are allowed to stay in their cells.

CNJ resolution on trans detainees applies even to teenagers

The CNJ resolution mentioned by Lewandowski even includes adolescents who have committed an infraction and purchase socio-educational measures and who self-determine as part of the LGBTI population. The document has been used exhaustively by the defense of transgender people who encounter resistance from judges to be allocated in women’s prisons.

Minister Barroso, in a decision in July of this year in which he mentioned the resolution, reinforced that sexual reassignment surgery is not necessary for biological men who declare themselves to be women to be able to serve time together with prisoners.

“The gender 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 gone through the surgical procedure is not a valid basis for refusing to be transferred to a female prison unit”, said the minister.

Despite the CNJ rule establishing the possibility that, if they so wish, transsexual prisoners stay in cells or wings separate from the rest of the inmates, this would not even be possible in practice: according to data from the National Penitentiary Department (Depen) only 3% of Brazilian prisons have wings dedicated to the LGBTI public.

Women’s protection group says measure “destroys rights of incarcerated women”

The Brazilian nucleus of Women’s Declaration International – an international organization for the defense of women’s rights founded in the United Kingdom and active in more than 30 countries – launched the campaign “Protege STF” in 2021 in order to reinforce the importance of keeping spaces separated by sex in prisons.

The entity sent a manifesto to all Supreme Court ministers presenting risks to the detainees if there are no changes in votes. For the group, indiscriminately allowing biological men to be in the same cells and wards as the detainees “destroys the right of incarcerated women”.

“If the votes remain as they are, they will cause irreversible damage, just like what has already happened to prisoners and agents in other countries. And they will create jurisprudence for similar actions such as those relating to bathrooms, changing rooms, store fitting rooms, breastfeeding rooms, shelters for victims of domestic and/or sexual violence, hospital wards and psychiatric wards”, says a statement from the entity.

In 2021, the group even triggered the Attorney General’s Office (PGR) asking for the suspension of Barroso’s preliminary decision that allowed the free choice of prisons. The approximately 60-page petition accompanied a long list of cases of violence committed against vulnerable people by men who identified as women.

“Our campaign knows that prisoners are at risk in male penitentiaries, even more so when they are outside the norm. However, the solution is not to transfer this risk to women, but to create specific spaces in the men’s penitentiaries and combat violence within them”, says Thársila di Britto, one of the members of the organization who signed the request.

Sexual abuse in countries with flexible laws for trans allocation in prisons

There are a number of episodes of sexual violence inside prisons and shelters in countries that have more flexible policies for the allocation of transgender people in these places. One of the cases of great international repercussion that illustrates the risk of violence is that of Karen White, an English trans woman born with the name of Stephen Wood and male biological sex, who in 2018 sexually abused two female prisoners in a female prison.

At the time of the crime, Karen had not yet undergone sex reassignment surgery, nor had her civil registration changed from male to female. The case had the aggravating factor that Karen was arrested precisely for having raped a woman two years earlier. Furthermore, she had already been arrested in 2001 for sexually molesting a child.

In April of this year, in Canada, a transgender named Desiree Anderson was arrested for sexually abusing a woman at a shelter for poor women or victims of violence. In August 2022, transgender Shane Jacob Green was also arrested on charges of rape inside a women’s shelter in Canada. According to Fox News, in July 2020 a Canadian woman who complained about the presence of biological men in shelters was evicted on charges of “transphobia”.

Another case of major proportions occurred recently in Scotland. In January, the transgender named Isla Bryson was convicted of the rape of two women that happened in 2016 and 2019, before the sex change. After the sentence, the court order was for Bryson to serve time in a women’s prison.

Former Scottish Prime Minister Nicola Sturgeon even intervened in the case to prevent the sentence from being served on the spot. During the trial, Bryson’s lawyer said that she was not a “male predator” but rather a “vulnerable”.

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