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Supreme Court of Brazil Classifies Homophobia and Transphobia as Criminal Offenses

(Blogmensgo, gay blog of June 19, 2019) The Supreme Court of Brazil (STF = Supremo Tribunal Federal) decided by eight to three votes on June 13, 2019 that homophobia and transphobia must be punished in the same way as racist crimes and offenses, even though there is no specific law for them. The highest Brazilian court is also calling on Congress to legislate on this as soon as possible. Brazilian President Jair Bolsonaro, whose speeches are openly homophobic, sexist and racist, protested against this court ruling – in a country that holds the world record for homophobic and transphobic attacks and crimes.

Below is the plenary session of June 13, 2019, which ended with the criminalization of homophobic and transphobic acts… (with translation into sign language)

The 11 judges at the June 13 plenary session (8 to 3 votes) were more in favor of criminalizing LGBT-phobic acts than in a previous vote on May 23 (6 to 0 votes). At that time, five judges were absent, which may explain the shift in voting. The judges Celso de Mello, Edson Fachin, Alexandre de Moraes, Luís Roberto Barroso, Rosa Weber, Luiz Fux, Cármen Lúcia and Gilmar Mendes decided on June 13, to impose criminal sanctions against LGBT-phobic acts.

The Supreme Court finds that there is currently a legal vacuum in the fight against LGBT phobia and that this legal vacuum is unconstitutional as it violates Article 3 (IV) of the Federal Constitution: Accordingly, the Republic shall promote the good of all without prejudice or discrimination of any kind. Pending the adoption of a specific law by Congress, the perpetrators of homophobic or transphobic acts shall be charged on the basis of the articles of the Criminal Code on racist acts. According to Racism Law 7.716 of 1989, perpetrators of such acts must now expect up to five years in prison. And in the case of murder, the LGBT-phobic basis of discrimination becomes an aggravating circumstance. Finally, the STF took the view that the criminal sanctions for homophobic or transphobic acts did not violate the free exercise of religion, because such free exercise is only permissible as long as it is not a hate speech.

Judge Carmen Lúcia said in particular that the number of homo- and transsexual victims of homotransphobia was too high as to wait any longer for Congress to end this “situation of true barbarism.”

According to Grupo Gay da Bahia (website www.ggb.org.br, not available at the time of writing), the number of deaths from LGBT-phobic assaults in Brazil increased by 30% in one year, reaching 387 murders and 58 suicides in 2017. The association then recorded 420 LGBT-phobic murders in 2018 and 141 victims since January 2019.

Transgender Europe, for its part, identified 171 transphobic crimes in Brazil in 2017.

Brazil also suffers from two institutional forms of LGBT phobia: the hateful words of President Bolsonaro and the narrow conservatism of Congress, both strongly influenced by evangelical fanaticism. Brazil has a Ministry of Human Rights, but the head of state has deprived it of all authority over LGBT persons and issues.

Below is another video of the plenary session on June 13, 2019 – same content, same duration.

It is therefore not certain whether Congress will be in a hurry to pass a law criminalizing homophobic acts. Nevertheless, the Brazilian LGBT community welcomed this court decision as historic – even though this legal victory will not reduce the LGBT-phobic crimes, at least for the foreseeable future.

As a reminder: Brazil already confirmed the legality of registered partnerships in 2011 and introduced gay marriage throughout Brazil on May 14, 2013.

Frank-S / MensGo

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