Actualizado: 5 de oct de 2020
Brazil's current constitution was enacted in 1988, consolidating the resumption of democracy in the country. It is known as a citizen constitution, stipulating in its article 3, when dealing with the fundamental objectives of the Republic, the promotion of the good of all, without prejudice of origin, race, sex, color, age and any other forms of discrimination. Such a constitutional provision
should be enough to guide the Legislative, Executive and Judiciary Powers to undertake their actions with the purpose of guaranteeing the construction of a society with this base. However, this is not what we observe in the history of our nation, especially when dealing with the rights of the queer population.
According to the Map of gender violence between 2014 and 2017 the Brazilian Information System for Notifiable Diseases (Sinan) received 12,112 records of violence against transgender people, whose gender identity was classified as transsexual woman, transsexual man or transvestite. In relation to people whose sexual orientation is considered homosexual or bisexual and whose gender identity was not identified, there were 257,764 cases of violence in the period.
We can also find, in article 5 of the Constitution, which discusses fundamental rights and guarantees, items XLI, which says that “the law will punish any discrimination that violates fundamental rights and freedoms;” and item XLII, which provides that “the practice of racism constitutes an unspeakable and imprescriptible crime, subject to the penalty of imprisonment, under the terms of the law”.
It was based on these constitutional commandments that the Brazilian Federal Supreme Court was triggered in two actions: a Direct Action of Unconstitutionality for Omission and an Injunction Order; both in different ways, sought recognition by the Constitutional Court that the Brazilian legal system was found omitted and inefficient in the legislative production that would effectively defend the rights and protect the physical and psychological integrity of the LGBT population.
In judging of these actions the following theses were produced, summarized as follows:
1. Until there is a law issued by the National Congress aimed at implementing the criminalization warrants defined in items XLI and XLII of article 5 of the Constitution of the Republic, the homophobic and transphobic behaviors, real or supposed, which involve odious aversion to someone's sexual orientation or gender identity, for translating expressions of racism, understood in its social dimension;
2. The penal repression against the practice of homophobia and transphobia does not reach or restrict or limit the exercise of religious freedom;
3. The concept of racism, understood in its social dimension, projects itself beyond strictly biological or phenotypic aspects as it results as a manifestation of power, from a construction of a historical-cultural nature motivated by the objective of justifying inequality and destined ideological control, political domination, social subjugation and the denial of otherness, dignity and humanity of those who by being a vulnerable group (LGBTQIA +).
Thus, the Federal Supreme Court recognized that the practice of homophobia and transphobia, terms that it can be said are more restricted than the expression LGBTphobia, which would cover all expressions of sexuality, affectivity and gender in protection.
It is important to highlight the difficulty of measurement and consequent difficulty in facing the violence suffered by this group, since research and official data, produced by the government, are scarce. Thus, the work of data collection and dissemination carried out by organized civil society groups is essential, such as the praiseworthy work done by Gay Group from Bahia, founded in 1980 and which is the oldest in Latin America still in operation.
Another example is the Dossier made by the National Association of Transvestites and Transsexuals of Brazil (Antra), the author Bruna Benevides, secretary of political articulation, points to the high rates which are certainly underreported.
In an interview given to Huffpostbrasil for an article: What happened 6 months after the Federal Supreme Court’s decision that criminalized LGBTphobia?, lawyer Paulo Iotti who acted in constitutional actions that resulted in the criminalization of homophobia and transphobia by the Federal Supreme Court, comments on the difficulty that people are facing to have a judicial response to the offenses suffered, starting from the basics, which is to register the occurrence with the Police, stating:
Certainly because of this resistance, usually by those who disagree with the Federal Supreme Court’s decision and for this reason, clearly want to give it the least possible effectiveness, it becomes difficult to make reports of the occurrence of homotransphobia.
Therefore there is a difficulty to enforce rights, to protect the LGBT population, even with the Federal Supreme Court’s judicial decision that understands homotransphobia as social racism. Thereby, the need to work for the whole of society is reaffirmed, not only by means of criminalization.
Prejudice and discrimination has also been reproduced openly in political speeches. Who should be a good example of society shows itself as a channel of permissiveness to hate speech and intolerance to diversity. It is necessary, then, to equip the protection of queer citizens.
Punishment should not be the ultimate goal of the struggle for the realization of rights but given the circumstances, it is an important instrument in the protection of people's rights and physical and psychological integrity. However the dispute is also, and mainly, for the implementation of public policies that promote education, social awareness and provide material and psychological support for the LGBT population, integrative policies and that guarantee the effectiveness of constitutional rights.
Feminist lawyer active in the area of family law and defense of women’s right.
Librarian, English Teacher and Feminist master student with project in favor of the end of violence against women.