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No More Slurs: The Criminalization of Homophobia in Brazil


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.




II.   The outcomes of the criminalization


Once prejudice against LGBT+ individuals was added to the existing law regarding racism, those who do not abide by it can face the same kind of punishment as those who are charged with racial discrimination, which can vary from community service hours up to imprisonment according to the gravity of the act. This historical decision was largely criticized by the extreme-right and religious leaders, who believe that the Supreme Court was infringing one’s rights to religious freedom and freedom of speech. Furthermore, despite the criminalization, the overall current Brazilian political situation still perpetuates a hostile environment for the 20 million queer people in the country.


According to the lawyer and trans rights activist Maria Eduarda Aguiar during an interview on the website Catraca Livre, most of the specialized police divisions have yet to be trained to correctly assess homophobia and transphobia cases, in addition, the fact that homophobia is categorized in a law regarding racism makes it harder to apply it correctly due to a lack of clearer distinction between racial abuse and social racism, a term widely criticized. The jurist adds that politicians currently in power are constantly undermining the gravity of LGBTphobia in the country and blatantly create obstacles to the funding of research on the subject, which causes even more barriers when it comes to assessing the effectiveness of the law. [4]


In conclusion, although homophobia has been criminalized since 2019 in Brazil, a historical mark, it has proven not to be sufficient to truly combat the structural LGBTphobia in the country. Many lesbians, gays, bisexuals, and trans people do not feel comfortable coming forward to the police when facing a hate crime out of fear of suffering mistreatment from law enforcement. This is especially true for transgender women. Furthermore, this law has not kept President Jair Bolsonaro and other politicians from being continuously and openly homophobic. It remains, however, a victory for the Brazilian people and opens up space for further debate and policy creation to ensure the safety of the national LGBTQIA+ community.



 Works cited:



[1         [ 1 ]  The Guardian, 2018 [https://www.theguardian.com/world/2018/jan/22/brazil-lgbt-violence-deaths-all-time-high-new-resea rch]


     [2]  Trans Murder Monitoring, 2021 [https://transrespect.org/en/map/trans-murder-monitoring/]


     [3]  Keske, Marchini, 2019 [https://core.ac.uk/download/pdf/230609613.pdf]


[4         [ 4 ] Catraca Livre, 2020 [https://catracalivre.com.br/cidadania/o-que-mudou-apos-1-ano-da-criminalizacao-da-lgbtfobia-no-bra sil/]


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Tags: Human Rights STOP Homophobia Homophobia in Brazil LGBTQIA+ Rights



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