Brazil is a question mark when it comes to LGBTQIA+ Rights. Same-sex marriage was legalized nationwide in May 2013, before the United States (June 2015), Germany (October 2017), and Switzerland (legalized in 2022), countries seen as references when it comes to civil liberties and Human Rights. In addition, the adoption of children by homosexual couples is a recognized right since 2010. Finally, São Paulo hosts the biggest Gay Pride Parade in Latin America since 2006. With so many progressive policies, both nationals and foreigners can easily forget that Brazil is one of the deadliest places for members of the LGBT+ community[1]. According to Grupo Gay Bahia’s data from 2017, an LGBT person dies every 23 hours in the country. Additionally, the Federative Republic is also considered to be one of the most dangerous places in the world for transgender individuals [2]. Moreover, the arrival of ultra-right politicians in power and the increasing influence of religious political parties created an even more tense environment for members of the community. However, amidst such hostility and violence, a victory: in 2019, the Brazilian Supreme Court voted in favor of criminalizing LGBTphobia in the country.

I. The pathway to the criminalization of homophobia in Brazil

The first attempt to criminalize discrimination due to sexual orientation in Brazil dates back to 1987, when João Mascarenhas from the Pink triangle Group (Grupo Triângulo Rosa, in Portuguese), tried to include homophobia as a Constitutional crime. Such request was denied by 317 votes opposed by mere 130 votes in favor.[3] Later on, in 2001, deputy Iara Bernardi wrote a bill with the intention of legally prohibiting homophobic crimes. As per Brazilian law, in order for a law to be created, it first needs to pass voting in the House of Deputies before moving to the Senate, where a second voting session takes place before the bill can be presented to the Republic’s President. Although with a favorable majority in the House of Deputies, the bill was tabled in 2006 by the Senate and would only resurface in 2019.

After 13 years of omission from the Senate regarding the bill on the criminalization of homophobia, the Brazilian Association for Gays, Lesbians and Trans people (ABGLT) partnering with the political party Cidadania made a motion at the Supreme Court for the reconsideration of the 2001 bill. The Ministers composing the Court voted in favor of adding the discrimination of various forms due to sexual orientation and/or gender identity to a previously existing law regarding racism, justifying it through its jurisprudence which categorizes the prejudice encountered by queer people as a form of social racism. Therefore, although homophobia is formally a crime in Brazil, there are no specific anti-homophobia and transphobia laws. Despite this fact, the Supreme Court’s decision was largely celebrated by the Brazilian LGBTQIA+ Community.