Brazil’s Supreme Federal Tribunal voted on Thursday to criminalize homophobia and transphobia.
In an 8-3 decision, the court approved a three-point thesis holding that LGBTQ discrimination should be understood to fall within the nation’s prohibition against racism until the National Congress can issue a law specifically addressing this matter. Brazil’s legislature outlawed racism in 1989 with prison sentences of up to five years. The court stipulated certain limits to their decision, holding that the criminalization of homophobia cannot restrict the free exercise of religion, as long as it does not constitute hate speech.
Justice Gilmar Mendes, who voted with the majority, believed the court’s decision was necessary because of persistent violence against LGBTQ people in Brazil, noting that Brazil’s constitution protects the fundamental rights and freedoms of minorities. Likewise, Justice Cármen Lúcia noted that given the high number of homicides and hate crimes against LGBTQ people in Brazil, the legislature’s unwillingness to act was unconstitutional, stating that “[t]he protection of fundamental rights must be full, so that the Constitution does not become a mere sheet of paper.”
In a dissenting opinion, Justice Ricardo Lewandowski expressed his unwillingness to effectively legislate on behalf of Congress, noting that, under Brazil’s constitution, only the legislature has the authority to add to the criminal law.
President Jair Bolsonaro, an evangelical Christian, strongly criticized the court’s decision in a speech on Thursday calling for more evangelical Christian representation on the court.