During his presidential campaign, Jair Bolsonaro once said: “minorities should bend to the majority—or they will be crushed.” The rise of the far-right politician to the country’s highest office has sparked fear among many minority groups, especially LGBTQ people. Last year, Brazil recorded 420 deaths as a result of homophobia or transphobia, according to NGO Grupo Gay da Bahia. While the number is disputed, one thing is certain: Brazil is not very tolerant when it comes to sexuality. The Supreme Court could, however, try to curb such crimes this week.

Today, Brazil’s highest court will continue a trial on whether homophobia and transphobia should be considered crimes. While a clearly noble cause, the trial is anything but simple. It is less about whether intolerance based on sexuality and gender should be fought, and more about whether the Supreme Court would be stepping on the toes of Congress. After all, it is the Congress’ job to legislate—especially on criminal matters, when offenses result in fines, sanctions, and possibly jail time.

</span></p> <p><iframe src="https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/467165079&amp;color=%23ff5500&amp;auto_play=false&amp;hide_related=true&amp;show_comments=false&amp;show_user=true&amp;show_reposts=false&amp;show_teaser=true&amp;visual=true" width="100%" height="450" frameborder="no" scrolling="no"></iframe></p> <p><span style="font-weight: 400;">The trial started last week, with Justice Celso de Mello, the court&#8217;s longest-tenured member, lashing out at Congress&#8217; &#8220;inactivity&#8221; and &#8220;omission&#8221; on LGBTQ-related issues. &#8220;The state&#8217;s omission disrespects the </span><a href="https://brazilian.report/podcast-brazil/2018/10/05/podcast-brazilian-constitution/"><span style="font-weight: 400;">Constitution</span></a><span style="font-weight: 400;">, attacks the rights it creates and prevents—due to the lack or insufficiency of measures—the applicability of the values of Brazilian law,&#8221; he read from the bench. At the same time, he said that it is not up to the Supreme Court to create laws. Justice Mello, who has yet to finish his arguments, has not indicated where he will go in his opinion. After him, the other 10 Justices are still to vote.</span></p> <p><span style="font-weight: 400;">Here are the possible outcomes of the trial. According to the most likely scenarios, the Supreme Court could: </span></p> <ul> <li style="font-weight: 400;"><span style="font-weight: 400;">Decide that it is not up to the 11 justices to create new criminal laws, handing the task to Congress;</span></li> </ul> <ul> <li style="font-weight: 400;"><span style="font-weight: 400;">Establish a time limit for Congress to vote on the matter;</span></li> <li style="font-weight: 400;"><span style="font-weight: 400;">Go ahead and consider homophobia and transphobia a crime, establishing the framework for penalties. Many defend that sexually-based intolerance should be equivalent to racism in terms of punishment.</span></li> </ul> <p><span style="font-weight: 400;">However, what many analysts expect is the trial to stall. If the Supreme Court acts on the issue, it will certainly be accused of overstepping its prerogatives by imposing itself on another branch of government. To avoid further straining the relationship between Brazil&#8217;s three branches of power, it is likely that one of the justices will request to take the case under advisement—a fascinating quirk of Brazil&#8217;s Supreme Court which allows any court member to stall a trial indefinitely.</span></p> <h2>&#8220;Eloquent silence&#8221;</h2> <p><span style="font-weight: 400;">Irapuã Santana, a former clerk for Supreme Court Justice Luiz Fux and currently a municipal prosecutor in the city of Mauá (greater São Paulo area), defends that Congress is the only legitimate venue to rule on the criminalization of homophobia. In a recent op-ed, he </span><a href="https://www1.folha.uol.com.br/opiniao/2019/02/regras-do-jogo-e-o-silencio-eloquente.shtml"><span style="font-weight: 400;">wrote</span></a><span style="font-weight: 400;">: &#8220;It is not advisable to have the judicial system replacing the people&#8217;s representatives as a superior power—even in a case involving such reprehensible conduct such as homophobia.&#8221; </span></p> <p><span style="font-weight: 400;">Mr. Santana defends that, by choosing not to address an issue, Congress is already taking a stand. &#8220;It&#8217;s the so-called &#8216;eloquent silence,&#8217; when legislative inactivity or delay create a statement to be interpreted. It means that the criminalization of a determined conduct doesn&#8217;t meet the minimum legal standards.&#8221;</span></p> <p><b>The Brazilian Report&#8217;s</b><span style="font-weight: 400;"> Natália Scalzaretto interviewed legal scholar Ligia Fabris, a professor at Fundação Getulio Vargas, Brazil&#8217;s most prominent think tank.</span></p> <h4>What do you make of the fact that this case is before the Supreme Court—and not in Congress?</h4> <blockquote><p><i><span style="font-weight: 400;">It is due to an issue concerning the country&#8217;s current political environment. The feasibility for progress resonates more in the Supreme Court than in Congress, especially since the results of the last election.</span></i></p></blockquote> <p><span style="font-weight: 400;">[In October 2018, Brazil elected its <a href="https://brazilian.report/power/2018/10/08/brazil-far-right-election/">most conservative</a> legislature since 1964—when the military seized power through a coup d&#8217;état.]</span></p> <h4>Which kind of precedent would criminalizing homophobia create?</h4> <blockquote><p><i><span style="font-weight: 400;">The Supreme Court faces several legal challenges. From a procedural standpoint, the legislative road would be more established, perhaps more commonplace. If the Justices rule in favor of criminalization, they will have to answer a series of questions so that the move is not seen as an excessive enlargement of the Supreme Court&#8217;s prerogatives. Today, such powers could be used to protect the LGBTQ community. In the future, such powers could be used for the opposite—should the viewpoint of the Court change.</span></i></p></blockquote> <h4>Could this precedent be used against human rights issues?</h4> <blockquote><p><i><span style="font-weight: 400;">It depends on how the Supreme Court will respond to the issues this case will raise—how the majority will base its opinion. </span></i></p></blockquote> <h4>Do you see institutional dangers ahead?</h4> <blockquote><p><i><span style="font-weight: 400;">Yes, if the court isn&#8217;t able to build a convincing argument for its ruling. Justices can criminalize homophobia —but they must be careful enough to give reasons on how this form of intolerance would be equivalent to racism, or defining the court&#8217;s jurisdiction to criminalize such conduct, in light of Congress&#8217; inactivity. </span></i></p></blockquote> <h4>How could we interpret Justice Celso de Mello&#8217;s opinion?</h4> <blockquote><p><i><span style="font-weight: 400;">He has yet to position himself. First, he made a report on the plaintiffs&#8217; case, adding important contextual elements about the stigma suffered by LGBTQ people—and the violence to which they are submitted. </span></i></p> <p><i><span style="font-weight: 400;">Chief Justice Dias Toffoli has signaled he doesn&#8217;t want conflict with other branches of government. If the court decides to go over Congress&#8217; heads, all his efforts could have been for nothing. </span></i></p> <p><i><span style="font-weight: 400;">To me, it seems that each branch of power was created to impose </span></i><a href="https://www.jota.info/opiniao-e-analise/artigos/conflito-entre-os-poderes-pode-o-supremo-criar-o-crime-de-homofobia-12022019"><i><span style="font-weight: 400;">checks and balances</span></i></a><i><span style="font-weight: 400;"> on the others. In that aspect, the Supreme Court could curb Congress&#8217; will when the latter goes against the Constitution. How that happens is more a matter of political climate.</span></i></p></blockquote> <h4>Could the Supreme Court determine what would be the punishment for homophobia? Including prison sentences?</h4> <blockquote><p><i><span style="font-weight: 400;">Plaintiffs are asking for homophobia to be equivalent to racism. But the Supreme Court could offer the framework for criminalization—there&#8217;s </span></i><a href="https://www.jota.info/stf/do-supremo/stf-pode-fixar-prazo-para-congresso-criminalizar-homofobia-15022019"><i><span style="font-weight: 400;">precedent</span></i></a><i><span style="font-weight: 400;"> for that.</span></i></p></blockquote> <p>

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SocietyFeb 20, 2019

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BY Natália Tomé Scalzaretto


BY Gustavo Ribeiro
