• Ferraresi Cavalcante – Advogados

The Supreme Federal Court (stf) rules homophobia as a crime of racism in the face of legislative.

The Plenary of the Federal Supreme Court (June 13, 2019) has ruled that homophobic and transphobic behavior can be equated with crimes of racism.

Initially, the concepts of homophobia, transphobia, and racism should be clarified.

The STF, when it heard the Direct Action of Unconstitutionality for Default (ADO 26), the report of Minister Celso de Mello and the Writ of Injunction (MI 4733), reported by Minister Edson Fachin, in summary, understood in both cases that there was an unconstitutional omission of the National Congress for not publishing a law that criminalizes acts of homophobia and transphobia.

That is, the Judiciary from now on can incriminate acts that violate the fundamental rights of the people who are part of the LGBTQ community, typifying the conduct in the Law of Racism (Law no. 7,716/1989) until the Legislature issues law on the matter.

Homophobia or transphobia means irrepressible aversion, repugnance, fear, hatred, a prejudice that some people or groups nurture against homosexuals, lesbians, bisexuals, and transsexuals.

Etymologically, the word "homophobia" means "fear," "aversion," or "phobia." The individual practicing homophobia is called homophobic. Homophobia can have cultural, social, economic and religious causes. For example, some members of particular religions, associations, parties, associations or religious entities assume fundamentalist tendencies in defending the extreme of the death penalty as a condemnation of those who are homosexual.

Finally, the STF, by transverse means and without the legislative capacity limitation, wants to repress the discrimination, hatred, prejudice, and violence against the public due to their sexual orientation or gender identity by ruling that:

The Plenary approved the thesis proposed by the ADO rapporteur, Minister Celso de Mello, on three points. The first provides that, until the National Congress issues a specific law, real or supposed homophobic and transphobic conduct falls within the crimes provided for in Law 7,716/2018 and, in the case of intentional homicide, constitutes a qualifying circumstance, vile motive in the second point, the thesis predicts that the criminal repression of the practice of homotransphobia does not reach or restrict the exercise of religious freedom, provided that such manifestations do not constitute hate speech. Finally, the thesis establishes that the concept of racism goes beyond strictly biological or phenotypic aspects and reaches the denial of the dignity and humanity of vulnerable groups.

Having made the initial premises, we will contextualize the crime of Racism, particularly art. 20: to practice, induce or incite discrimination or prejudice of race, color, ethnicity, religion or national origin. Penalty: imprisonment of 1 to 3 years and fine.

The STF adapted the law to the Constitution with the discrimination of the sexual option, typifying it as a crime. It turns out that there was a pitiful gap until then.

Recall that the STF has already expressed, on the contrary, the issue in the judgment of INQ 3590/DF, rapporteur Minister Marco Aurélio, judged 12-08-2014. At that time, it was understood that the Law of Racism did not reach the types provided in the caput of art. 20, directed towards the discrimination or prejudice of the sexual option.

In spite of the STF's understanding of typifying the crime of homophobia as racism, without any presumption of confrontation by the authority of the supreme court, the basic doctrine of criminal and constitutional law says that "nullum polem sine praevia lega" this is the inspiration of the constituent who reproduced in art. 5º XXXIX, of the CF, there is no crime without previous law that defines it or a penalty without prior legal notice.

This principle was consecrated as an umbrella of Legality unfolding in four subprinciples: a) anteriority of the law; b) legal reserve; prohibition of analogy in malam part; and, d) taxativity.

Thus, when the STF affirms that because of the existing gap regarding the criminalization of crimes of homophobia, it is verified that the values of human dignity overlap with the basic principles of criminal law, the court went well in its decision.

Moreover, the decision of the STF puts the Federal Legislative Power on a state of high alert to trigger the legislative process and introduce homophobic crimes in our legal system.

The STF's understanding of the criminalization of homophobic crimes has an immediate repercussion on human relations, such as: labor, social, commercial, business and criminal, since they place in the limelight the conduct of practicing, inducing or inciting discrimination or prejudice of race, color, ethnicity, religion or national origin, or because of sexual choice without due punishment.

The STF signaled that the Judiciary should confront and suppress homophobic or transphobic behavior in human relations. In this regard, individuals, legal entities, and business conglomerates should advise their employees on the risk of framing homophobic crimes.

It is worth emphasizing the understanding of Minister Celso de Mello, in the following section of decision commented here:

"... the concept of racism, understood in its social dimension, is projected beyond strictly biological or phenotypic aspects, as it results, as a manifestation of power, a construction of a historical and cultural nature motivated by the objective of justifying inequality and aimed at ideological control, political domination, social subjugation and denial of otherness, dignity and humanity of those who, because they belong to a vulnerable group (LGBTQ +) and because they do not belong to the state that holds a position of hegemony in a given social structure , are considered to be strange and different, degraded to the condition of marginals of the legal system, exposed as a result of odious inferiorization and perverse stigmatization, to an unjust and harmful situation of exclusion from the general system of protection of the right.”

I believe that Justice assumes in this point a role of social educator imposing limits on the rights and duties recognized in the values of a person’s human dignity to combat discrimination or prejudice against LGBTQ minorities, summarized in the vote of Min. Celso de Mello:

"Criminal repression of homophobia does not attain or restrict or limit the exercise of religious freedom, regardless of the denomination of the confessor professed, to whose faithful and ministers (priests, pastors, rabbis, mullahs or Muslim clerics and leaders or celebrants of Afro-Brazilian religions, among others) is guaranteed the right to preach and freely spread, by word, image or otherwise, their thoughts and to express their convictions according to what is contained in their books and codes as well as to teach according to their doctrinal and / or theological orientation, being able to seek and conquer proselytes and practice the acts of worship and their liturgy, regardless of the public or private space of their individual or collective action, provided that such manifestations do not set up hate speech, thus understood as exteriorizations that incite discrimination, hostility or violence against persons on the basis of their sexual orientation or gender identity.”

Finally, the lesson drawn from this judgement is that the Judiciary tries to reach the aspirations of society, creating effective legal solutions when it is verified the existence of a legal loophole regarding crimes of homophobia. But it is not always that the Federal Supreme Court should do this. Only in very few exceptions, since it is expected that the National Congress will always fulfill its role.

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