O DIREITO DAS CUSTODIADAS TRANSEXUAIS E TRAVESTIS DE CUMPRIREM PENA EM UNIDADES PRISIONAIS COMPATÍVEIS COM O GÊNERO FEMININO: A INSEGURANÇA JURÍDICA COMO FATOR DE VIOLAÇÃO DE DIREITOS

The aim of this research is to analyze how the use of legal regulations based exclusively on biological sexual difference has created a situation of physical, moral and mental insecurity for transsexual women and transvestites serving time in the Brazilian prison system. It was found that exercising the right to choose the prison is not compatible with national legislation aimed at protecting the dignity of the human person, since the state must recognize that gender identity is not a choice, but an intrinsic part of being human. Through a legal and social analysis, the paper addresses how the absence of clear guidelines for the placement of transvestites and transsexuals in compatible prisons, as well as the slowness of the Brazilian judiciary in analyzing sensitive issues, creates legal uncertainty that contributes to the violation of the rights of these prisoners. Initially, the relationship between the prison system and transsexuals and transvestites will be discussed. Next, the evolution of rights and the legal instruments for protecting transsexuals and transvestites in detention will be addressed. Finally, it will be presented how legal uncertainty on the subject violates fundamental rights and exposes custodians to situations of complete disrespect for the principle of human dignity and the right not to be tortured.