[AMICUS CURIAE] Every 20 hours, one person of the LGBTI community is murdered or commits suicide in Brazil as a victim of discrimination. In 2018, the number of deaths among homophobia and transphobia victims reached 420. Brazil’s Supreme Federal Court started a trial of joint actions to decide on whether homophobia and transphobia should be considered as a criminal offence. Four out of the eleven justices already voted in favour of the criminalisation. Still, the trial has been suspended for an indefinite period of time.
The current Brazilian criminal legislation does not mention homophobia and transphobia as crimes. A suit filed by the Popular Socialist Party (PPS) demanded that discrimination based on sexual orientation or gender identity should be a crime equivalent to racism. Therefore, aggressors would be judged on the same basis of the crime of racism, which, in Brazil, is non-bailable and indefeasible. The Brazilian Association of Gays, Lesbians and Transgenders (ABGLT) also brought up a joint legal action seeking to criminalise homophobia and transphobia.
For many decades, religious entities in Brazil have been against the criminalisation of homophobia and transphobia by arguing that it would constitute a violation of freedom of expression. In other words, they argue that they would not be able to freely express their thoughts anymore. Nonetheless, that is clearly not the purpose of the criminalisation. The goals are rather to protect the LGBTI community against violence and hate speech and, consequently, to end impunity on these cases.
Procedural aspects of this trial are also controversial, since some argue that the judiciary is not entitled to create laws. Normally, the Congress is the one that should legislate. Nonetheless, the delay of the Brazilian Congress to criminalise the violence against LGBTI people has been properly criticized. The oldest bill regarding criminalisation of discrimination by sexual orientation or gender identity was first presented to the Chamber of Deputies in 2001. Currently, this bill is archived after spending several years without being approved by the Senate.
Unfortunately, the LGBTI population will continue to wait for a decision, since, last week, the trial has been suspended indefinitely. Despite not being enough on its own to change the violent scenario in Brazil, the decision by the Supreme Federal Court is expected to be an important step against discrimination. Yet, it is crucial to highlight that public policies allied with strong social and cultural changes are also vital to make Brazil a truly safer place for the LGBTI community.
