By Raj Krishna and Snehil
I. INTRODUCTION AND BACKGROUND
On 13th June 2019, Brazil’s Supreme Federal Court by a majority of 8 to 3 declared discrimination based upon sexual orientation and gender identity a criminal offence under the Brazilian hate crime law of 1989 (Law 7716 of 1989). Initially, the Brazilian law recognized discrimination only on the basis of race, color, ethnicity, religion or national origin. However, the Apex Court through its recent ruling has inserted sexual orientation and gender identity as a ground of discrimination in their existing hate crime law. Further the Supreme Federal Court vide its judgment has also tried to ensure that the right to freedom of speech for religious clerics doesn’t gets restricted provided they don’t indulge themselves in any act of hate speech. Thus, it can be said that the court vide its ruling has tried to strike a balance between religious freedom and the new penal offence.
In the year 2011 Brazil’s Federal Court unanimously held that the civil union between people of the same sex needs to be recognized by each and every state of the country. However, the Congress till date has not passed a single legislation with respect to such unions.
As a result, a couple of petitions were filed before the Brazilian Apex Court; one was being filed by a LGBT association and another by a political party. The Brazilian Supreme Federal Court during hearing did observe that the National Congress has completely failed in fulfilling the constitutional obligation by not enacting a law to punish such discrimination based upon sexual orientation and gender which may attempt against fundamental rights and liberties (Article 5, XLI Brazilian Federal Constitution).
The Court while hearing this case also made an observation that the National Congress since the democratization of Brazil in 1988 has remained mum upon the matter of LGBT rights despite the fact that LGBT rights have been guaranteed in Brazil by various judicial pronouncements and executive orders.
II. JUDGMENT AND ITS ANALYSIS
The decision of the Apex Court was delivered three weeks post the voting took place in which majority of the judges voted in favor of the decision. Under the Brazilian legal system the decision of the court is final only when the last justice votes. As soon as all the votes are casted the decision of the judges is made public.
The 11-member court by 8-3 majority voted in favor of making homophobia and transphobia crimes. As per the ruling of the Brazilian Supreme Federal Court anyone who commits the crime of homophobia or transphobia will be punished under the country’s existing racism law until and unless the Congress doesn’t approves a specific legislation to protect the LGBT people [The 1989 Brazilian law recognizes racism as a crime punishable with a prison sentence of up to five years].
Justice Carmen Lucia [One of the judges in this case] while announcing her vote in favor of the judgment said that the court is in no position to deny the protection “to those who have at times been denied the right to life, and most often to the right to liberty and dignity, by the absence of legislation” even though a democratic constitution was adopted nearly 30 years ago.
The judgment of the Supreme Federal Court is iconic and historic in many a ways. Firstly the Court while deciding the case interpreted the current hate crime law which focused upon race – as also prohibiting discrimination on the basis of sexual orientation and gender identity. The court in this case read sexual orientation and gender identity into race; in the same way that sexual orientation is often read by courts into sex. However this interpretation is controversial and has also been criticized by many legal scholars.
Secondly due to this ruling the Brazilian hate crime law of 1989 which was earlier applicable in the cases of racism is now also applicable in the cases of sexual orientation and gender identity. The Brazilian Hate Crime Law includes a series of offences which includes denying a job, preventing access to services, rejecting providing accommodation in hotels, inciting discrimination through social media etc… Since this law is now applicable in the cases of sexual orientation and gender identity, one can now expect that the conditions of LGBT community will improve in Brazil and they will not face the social ostracism, which they used to face earlier.
III. THE WAY FORWARD
This judgment is important because as per the reports of the Inter-American Commission on Human Rights, a person is killed in Brazil [in a homophobic attack] in every 16 hour. Apart from that the country also tops the world in the list of transgender homicides with a record 171 in 2017. Further if we go by the reports of the Grupo Gay da Bahia [A Human Rights Group], 420 people belonging to the LGBT community were killed in Brazil in the year 2018 and at least 141 have been killed so far in 2019.
As a result the Senate is currently working upon a Bill to criminalize discrimination based upon sexual orientation or gender with sentences of up to five years. Thus one can now expect that the crime against the LGBT community in Brazil will now decrease.
However it is to be noted that the Brazilian politicians and the Catholic Church have often been critical of gay rights. The current Brazilian President Jair Bolsonaro is a self-described homophobe and is often heard giving statements against the gay community. According to BBC’s Julia Carneiro in Rio reports, Brazil has failed to declare homophobia a crime for the last 20 years despite putting in efforts due to the constant resistance of the conservative and religious groups to any such legislation.
Thus, it will be interesting to see that how one of the most conservative Parliament in the world will react to this ruling and homophobia. While many challenges and uncertainties still lie ahead, the future looks like a bit more colorful for the Brazilian LGBT community due to this ruling.
[The co-authors are B.A. L.L.B. (Hons.) students at Chanakya National Law University, Patna.]
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