Solicitor General Urges STF to Clarify How Homophobia Decision Affects Religious Freedom

RIO DE JANEIRO, BRAZIL – Brazil’s Solicitor General (AGU) José Levi, on Wednesday, October 14th, filed an appeal with the Federal Supreme Court (STF) to clarify the scope of last June’s judgment that decided to classify homophobia and transphobia as crimes of racism.

The AGU seeks clarification as to whether the measure affects the following: religious freedom; the disclosure in academic, media or professional circles of considerations regarding ways of exercising sexuality; the control of access to certain areas open to the public (such as restrooms, changing rooms, public transportation); and defences claiming reasons of philosophical or political convictions.

In June last year, the Supreme Court equated homophobic and transphobic acts with the crime of racism, when it recognized the failure of the National Congress to criminalize acts that violate the fundamental rights of members of the LGBT community.

According to the STF decision, whoever practices, induces or incites discrimination based on sexual orientation may be sentenced to three years in prison and a fine, the same penalty imposed for the crime of racism; prison may reach up to five years if the homophobic act is published on the Internet. The decision, by its terms, applies only until Congress fulfills its constitutional duty and passes a statute on the matter.

According to the AGU, the protection of citizens identified with the LGBTI+ group should not criminalize the disclosure of all and any consideration regarding the ways of exercising sexuality.

“Just as the consideration of habits of prevailing sexuality must be ensured, it is also necessary to ensure freedom for the consideration of alternative sexual morals, without fear of such manifestations being perceived as incitement to discrimination,” says the appeal.

The chief government attorney states that the Supreme Court needs to clarify whether the social concept of racism can justify the ascribing of criminal responsibility to any kind of comment that reveals inadmissible intolerance.

For the AGU, “it is important to clarify, as a judgment argument, that not only religious freedom, but freedom of expression itself, generally considered (encompassing artistic, scientific or professional expression), supports the potential for non-abasement of sexual morality.”

“No one doubts that tolerance is one of the principal normative pillars of the 1988 Constitution, and that the decision now under appeal [criminalization of homophobia] is a forceful and due defense of this libertarian tone of the Constitutional text. But, of course, this cannot be done at the expense of other relevant freedoms. As long as it does not turn into a derogatory adjectivization, aimed at injurious disqualification, it is perfectly possible that sexual morality be assessed in the different environments of intellectual expression,” wrote Federal Solicitor General José Levi.

The appeal states that the refusal to accept, or even the exclusion of, a person whose behavior is considered “seriously inadequate” for a given religious philosophy, should not be treated, in principle, as an act of racism, but rather as part of the exercise of religious freedom.

According to the appeal, the intention is to clarify whether “in addition to the right to preach, spread, express doctrine and practice acts of worship and liturgy, religious freedom may or may not contemplate the exclusion of persons whose behavior is ostensibly at odds with the codes of conduct required by the fundamental principles of religious orders.”

“Although religions in general pursue and value ideals of respect, tolerance and acceptance of others, religious doctrines often establish sanctions for behavior considered critically incompatible with established dogmas, providing consequences that can lead to the exclusion of the congregation, ministry or acts of communion,” the text says.

Another point raised is that criminalization must not prevent the control of access to certain places open to the public in order to protect the intimacy of those considered vulnerable, such as the restriction of access to restrooms, dressing rooms, public transport and even penitentiary facilities.