Opinion: Brazil’s Supreme Court Enters the Political Thicket

Opinion by Michael Royster

RIO DE JANEIRO, BRAZIL – Today, February 21st, Brazil’s Supreme Court (STF) will continue discussing and (possibly) voting on an extremely political question: Should “homophobia” and “transphobia” become crimes deemed equivalent to racism under Brazil’s Penal Code?

A week ago, Justice Celso de Mello, began reading his seventy-page opinion and finally cast his vote yesterday.

Political activists have filed two special type of lawsuit to raise this question. One lawsuit is styled “Ação Direta de Inconstitucionalidade por Omissão” (“ADO”) and seeks a decision by the STF that the federal Congress has violated, by decades of omission, the fundamental constitutional rights of LGBTQ citizens.

The constitutional remedy is for the STF to order Congress to pass appropriate legislation.

The other lawsuit, also specifically mentioned in Brazil’s 1988 Constitution, is a “Mandado de Injunção” (“MI”) alleging the identical legislative omission as an ADO.

The title is misleading, for the remedy sought is not a garden-variety injunction: rather, it is positive legislation. Put briefly, rather than the STF simply ordering the Congress to do something, the STF is empowered to create legislation.

The only case where the STF has used it power to legislate was an MI concerning the right of government employees to strike; the 1988 Constitution grants this right, and orders Congress to regulate it, but Congress did nothing. 

In 2007 the STF ordered the application, by analogy, of the strike legislation applicable to private sector employees.

The plaintiffs in the current MI seek a similar remedy: apply the statutory penal provisions for crimes involving racism to crimes involving homophobia or transphobia. This remedy is not permanent—it will expire as soon as Congress itself passes appropriate legislation.

For what it’s worth, Congress has never done so in the case of the right of government workers to strike; it has been content to allow the judicial legislation to stand.

There have been anxious voices raised in Brazil’s Congress by members of Brazil’s religious right (the “Bible bloc”) in opposition to both these lawsuits.

Their ideological worry purports to be how to define homophobia — does it include the sermons of pastors who preach homosexuality is a sin?

Their institutional worry is that the STF is usurping the legislative primacy of Congress on a political question. Congress has chosen not to define homophobia and transphobia as crimes, because a majority of Congress, the people’s elected representative, do not want such legislation.

They claim that an eleven-member unelected body such as the STF should not impose its political beliefs on the nation.

The counter-argument is that even if a majority of the people’s representatives does not want to protect basic constitutional rights of a minority, Congress must do so, as the rights in question are basic to all citizens, even those in a minority.

Today may or may not see a vote, but the STF, having entered the political thicket, will face thorny questions for months and years to come.