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Minister cites reform for 'irrefutable discrimination' and guarantees the retirement of a warrant o

Maria Luiza da Silva, former Air Force corporal who was the first female soldier to change sex and be reintegrated into the Armed Forces.



02/06/2020



Minister Herman Benjamin, of the Superior Court of Justice, denied the Union's appeal and maintained a decision that guaranteed Maria Luiza da Silva, the first transsexual in the Armed Forces, the right to retire from the position of warrant officer. The ex-soldier has been fighting for over 14 years in court to receive full pay for her last career post in the ranks. “It is legitimate for the appellee (Maria Luiza) to receive full retirement in the rank of warrant officer, as her right to progress in her career was taken away due to an illegal, null administrative act, based on irrefutable discrimination. There is no doubt, therefore, that the appellant was harmed in her professional life because of transsexuality”, said the minister in the decision. According to the minister, Maria Luiza fulfilled the requirements to reach the rank of second lieutenant and, with regard to those who were not observed, it was demonstrated in the course of the process that this only occurred because of the illegal act of reform by the former soldier. The order was published last Tuesday, 26. In February, Herman Benjamin granted an injunction ordering Maria Luiza to remain in the Air Force's functional property in Brasília until the appeal on retirement was analyzed by the STJ. In the order, the minister also determined that Maria Luiza be reimbursed in R$ 2,127.78, an amount paid as a fine for alleged irregular occupation.


Maria Luiza was retired after undergoing sex change surgery, and the Air Force considered her incapable of military service based on Law 6880/80, which establishes as a hypothesis of permanent disability for members of the Armed Forces: 'accident or illness , disease or illness unrelated to military service'. When analyzing the former military's appeal, the Federal Regional Court of the 1st Region understood that Maria Luiza could not 'be prejudiced in her right to the promotions she would eventually be entitled to', given that the act that led her to the reservation was declared null and void. . The court also highlighted that sexual orientation cannot be considered permanent disability, nor an accident or illness, 'under penalty of offending the constitutional right to health, the principle of non-discrimination and human dignity itself, in one of its most sensitive developments: respect for the ability of transsexuals to self-determine their sexuality'. The Air Force ended up reimplanting Maria Luiza's retirement, but as a corporal and claimed that the promotions would not depend exclusively on the criterion of seniority.



Fight over 14 years


When analyzing the Federal Government's appeal against the TRF-1 decision, Herman Benjamin considered that the decision of that court followed the understanding of the Superior Court of Justice that, after the annulment of the administrative proceeding, Maria Luiza would be assured of promotions, salary integral, as well as the right to housing, a natural consequence resulting from the annulment of the administrative process. The minister also highlighted that the determination to reimplant the full pension does not refer to the rank of corporal, 'the one that the former soldier occupied before being unfairly removed', having the right to retire as a warrant officer, with 35 years of service. The rapporteur also indicated that Maria Luiza waited for years for her retirement to be reimplanted, even the one referring to the rank of corporal and at this point cited a documentary produced about the life of the ex-military. “The present case is even dealt with in the documentary (feature film) “Maria Luiza”, in which the entire drama experienced by the appellee - who became the first transsexual in the Brazilian Armed Forces - is reported and the absolutely discriminatory posture she faced . The film travels the world with critical success”. Highlighting the 'blatant need to conclude Maria Luiza's lawsuit, which has lasted 14 years', and recalling that the opportunity to progress in her career was taken away from the former military, the minister pointed out that the Union has a 'legal duty to implement all promotions by seniority that may be applicable' between the publication of the act of reform and the date on which the aggravated party turned 54 years

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