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Dean of Brazilian Federal Supreme Court declares legislative omission and affirms that homophobia represents contemporary form of racism

The vote of the rapporteur of the Action for the Declaration of Unconstitutionality by Omission (ADO) 26, Justice Celso de Mello, was resumed and finalized in the plenary session of the Brazilian Federal Supreme Court (STF) this Wednesday (20). The Justice concluded that the National Congress has failed to issue a law criminalizing acts of homophobia and transphobia. The lawsuit, filed by the Popular Socialist Party (PPS), began last week at the session on the 14th. The analysis of the matter will continue on Thursday (21), with the reading of the vote of Justice Edson Fachin, rapporteur of the Mandate of Injunction (MI) 4733, on the same matter.

In his vote, Justice Celso de Mello acknowledged the unconstitutionality of the National Congress's delay in legislating on the criminal protection of members of the LGBT group, stating the existence of a legislative omission. The Justice gave interpretation according to the Federal Constitution to frame homophobia and transphobia, and any form of its manifestation, in the various crime definitions mentioned in existing legislation, such as Federal Law 7.716 / 1989 (which defines crimes of racism ), until the National Congress issues an autonomous standard.

The Justice pointed out that homophobic practices constitute social racism, established by the Supreme Court ruling in Habeas Corpus (HC) 82424 - Ellwanger case - considering that these acts are acts of segregation that undermine members of the LGBT group. He voted for the validity of the claim with general effectiveness and binding effect. In his vote, he stated that the effects of the decision will only apply from the date of conclusion of the trial.

Social collectivity

The dean assessed that this is a judgment in favor of the whole social collectivity and that the decision will not be imposed against any individual or group, just as it can not be considered a judgment in favor of only a few. "The irrefutable fact in the subject under examination is one: prejudice or discrimination acts based on sexual orientation or gender identity can not be tolerated. They must be repressed and neutralized, since it is essential that Brazil takes a significant step against discrimination and against the exclusionary treatment that has marginalized minority groups in our country, such as the LGBT community, "he said.

The Justice said that homophobia represents a contemporary form of racism and assessed the importance of this judgment in the process of broadening and consolidating people's fundamental rights. "All human beings are born free and equal in dignity of rights," said the rapporteur, stressing that sexual orientation and gender identity are essential to the dignity and humanity of each person, "not to be grounds for discrimination or abuse" . According to him, the diversity of life forms and the right to difference can in no case serve as a reason for racial prejudices, even though the differences among the peoples of the world do not justify any hierarchical classification between nations and people.


According to the rapporteur, the State has the duty to act in defense of the dignity of the human person and against the permanent hostility against any behavior that may generate disrespect for the values of equality and tolerance. Justice Celso de Mello noted that the absence of state action about the aggressions against vulnerable social groups "and the refusal of the public power to face and overcome the barriers that impede the search for happiness by homosexuals and transgenders, victims of unacceptable discriminatory treatment, represents an omission that frustrates the authority of law, which discredits the public interest, breeds the debasement of institutions and compromises the principle of equality." He affirmed that the Judiciary must make effective the reaction of the State in the prevention and repression in the acts of prejudice and discrimination practiced against people that integrate vulnerable groups.

Ellwanger case

At various points in his vote, the rapporteur cited parts of the Habeas Corpus (HC) 82424 trial, held in September 2003, when the Supreme Plenary held the sentence against editor Siegfried Ellwanger for racism. Considered as a historical precedent, HC 82424 guided the rapporteur's vote that the definition of racism covers situations of unfair aggression that result from discrimination or prejudice against people based on their sexual orientation or gender identity.

The Justice pointed out that racism, for the purpose of the crime definiotion in Law 7.716 / 1989, is not confined to a strictly anthropological, phenotypic, biological concept, but is projected in a cultural and sociological dimension, the so-called social racism. He believed that the arbitrary, prejudiced, unconstitutional and perverse view of racism must be rejected. "The prejudice and discrimination resulting from the dislike of homosexuals and other members of the LGBT group - typical components of a vulnerable group - constitute the cruel, offensive and intolerant manifestation of racism because they represent the expression of their other face, the social racismo", stressed.

Religious freedom

During the reading of the vote, Justice Celso de Mello also addressed issues related to freedom of religious expression. For him, the decision does not interfere in religious practice, which is an essential presupposition of the democratic regime. "This free practice can not and must not be supressed by the public power nor submitted to illicit interference of the State, of any citizen or of any institution of civil society," he said.

The Justice noted that the objective disclosure of religious facts and narratives does not constitute a hypothesis of civil or criminal violation, because the intention to offend individuals and groups can not be presumed. "The exhibition and reproduction of narratives, advice, lessons or guidelines contained in any sacred book of any religion do not prove to be capable of constituting crimes against honor, because they are propagated in order to spread the theological thought and spiritual philosophy proper to each denomination. This circumstance de-characterizes the spirit of defaming and insulting someone by becoming this acts legitimate as expressions of the faith postulates of religions," he said

According to the rapporteur, incitement to public hatred and racial hatred is a crime. He stressed that religious preaching, sermons or homilies, as legitimate expressions of ideas on religious doctrine, are protected by the constitutional text, which protects those who, as faithful, leaders or religious authorities, play in their respective congregation, pastoral or confessional matter activity.

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Read the entire vote of the dean



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