Transvestites and transsexuals who are imprisoned in Brazil this Friday obtained the right to decide whether they want to remain in male prisons or if they prefer to be confined in female prisons.
The benefit was granted by the National Council of Justice (CNJ), which approved a resolution that obliges judges to consult people who declare themselves transsexual or transvestite about the type of prison in which they prefer to remain in prison.
In accordance with the resolution of the managing body of the Judicial Power in Brazil, these prisoners also have the right to decide whether, within male or female prisons, they want to live with inmates in general or remain in the pavilions destined for the LGBTI population , homosexual, bisexual, transvestite and intersex).
According to the National Council of Justice, which is commanded by the president of the Supreme Court, magistrate Luiz Fux, prisoners who declare themselves gay and lesbian do have to be held in male and female prisons, respectively, but they may declare their preference for a ward or a specific cell for people with their sexual choice.
The body made it clear that the decision will always be made by the judge responsible for the conviction or the judge for criminal executions, but that the magistrates will have to take into account what the prisoners declare about their gender identity and sexual orientation.
They will also have to take into account whether the prisoner in question does not represent a risk to the other inmates of the unit to which they are assigned.
“The judge will have to justify his decision. He will be able to deny, for example, the request of a transvestite convicted of several sexual crimes that expresses his desire to be confined in a celtic only with women”, according to the rapporteur of the proposal, the councilor Mario Guerreiro.
The resolution also establishes that lesbian, transvestite or transsexual women will have the same rights as other women, especially if they are mothers, responsible for children under 12 years of age, are pregnant or are feeding their babies with breast milk.
In these cases, provisional detention is justified only in exceptional cases.
The counselor who proposed the measure more than a year ago alleged that the decision seeks to guarantee the rights of people subjected to humiliating situations.
“These people are subjected inside the prisons to hell on earth. We cannot ignore what is happening. They are raped and mistreated every day, and they contract diseases,” he said.
According to the National Council of Justice, the deadline for judges and the penal system to adapt to implement the measure is 90 days.
In justifying the decision, the speaker stated that the fifth article of the Brazilian Constitution guarantees “that no one will be subjected to torture or inhuman or degrading treatment.”
He also cited articles from the convention on the Yogyakarta Principles, which the international community approved in 2007 and which seek to guarantee the human rights of people in relation to their sexual orientation and gender identity.
“With this resolution, Brazil takes an important step in strengthening the guardianship of minorities and in recognizing the dignity of the human person,” said Fux.
According to the data analyzed by the CNJ, Brazil leads the world ranking of violence against transgender people, whose life expectancy does not exceed 35 years in the country.
According to data from the National Penitentiary Department (Depen), in Brazil there are only 36 prison units with pavilions for inmates of the LGBTI community, which represents 3% of the total number of prisons and jails in the country.