Challenges in Understanding the Elements "Woman," "Gender," and "Female Sex" in Criminal Law

The Limits of Law and Alterity

Abstract

This article explores the complex relationship between legal definitions and the social constructions of "woman," "gender," and "female sex" in Brazilian criminal law. Grounded in the theories of Niklas Luhmann and Raffaele De Giorgi, the study examines how distinctions between masculine and feminine emerge from social communication, challenging their historical naturalization. Through a theoretical-documentary approach, the article analyzes legislative texts, such as the Maria da Penha Law and the amendments introduced by Law n.º 14,994/2024, in addition to jurisprudence. The study highlights the contributions of feminist theorists to support the evolution of gender as a central analytical category. Furthermore, it underscores the transformative potential of opening the legal system to alterity, advocating for a democratic legal framework that accommodates diverse identities. The study problematizes the use of biological determinism in legal definitions, emphasizing that "woman" and "female sex" are categories constructed through communicative acts rather than intrinsic biological truths. The methodology enables the identification of how the legal system both shapes and is shaped by power dynamics and perceptions of alterity.