Since yesterday, the Federal Supreme Court (STF) has been judging two actions that call for the criminalization of homophobia and transphobia. The actions were requested by the Popular Socialist Party (PPS) and by the Brazilian Association of Gays, Lesbians and Transgenders (ABGLT), pointing out that Congress was remiss in not legislating on the subject, which violates the item of article 5 of the Constitution - the law will punish any discrimination that violates fundamental rights and freedoms.
Yesterday PEITA's lawyer, Ananda Puchta, spoke on behalf of Grupo Dignidade – For the Citizenship of Gays, Lesbians and Transgenders. She is also a member of Coletivo Cássia , the lesbian and bisexual branch of Grupo Dignidade, with whom we partner on the phrase "I'm with her", co-created to dialogue with women who love women and men who are on our side in the fight for equality.
Here you can read the speech in full.
President, Minister Celso de Mello, Ministers, Ministers, good afternoon.
I go up to this platform, not with the joy of occupying it for the first time, but with the regret of having to remind you that we are dying. I go up to the podium accompanied by Marielle, Matheuza, Plínio, and so many others who died in 2018. 420 deaths. I am sure that my role and that of my colleagues here today is not just to discuss the constitutional reasons that lead to the failure of the Brazilian State to properly protect our community, but to give voice to those who claim for a better life. no violence.
Cases arising from LGBTIphobia are underreported, not only because there is no criminal classification that allows this survey, but also because the Brazilian State has not shown interest, so far, in ceasing to be the country that kills the most LGBTIs in the world. We, as civil society, have to do our best to be able to account for each life that passes away. And for that reason, I would like to thank my colleagues at GGB, ANTRA, REDETRANS and the Lesbocídio Dossier, for dedicating time and work so that we can demand justice from this Constitutional Court.
It is worth remembering that corrective rape, a crime recurrently suffered by lesbian and bisexual women, and often by trans men, only became part of the Brazilian Penal Code as of September 24, 2018, by Law No. 13. 718. sanctioned by Your Excellency, Minister Dias Toffoli, when he was President of the Republic. It's no wonder that we're here, calling once again to the STF, for equal rights.
We LGBTIs have always been treated by the National Congress as citizens and second-class citizens. Legislative initiatives proposed to guarantee us citizenship are either buried in drawers or pursued from committee to committee so that they are not approved. Parliamentarians who openly represent us are threatened with death until they are forced to leave their mandate and leave the country. Therefore, the presence of each one of us in this Court represents resistance.
As if that were not enough, it is necessary to emphasize the complex intersectionality that permeates our community. The violence suffered by a white, middle-class lesbian is completely different from that suffered by a poor black transvestite. The population of transvestites and transsexuals is at the forefront of daily deaths resulting from LGBTIphobia.
Our plurality and diversity adds value and creativity to the private sector, which recognizes the potential of the LGBTI community. In 2018, Grupo Dignidade and the National LGBTI Alliance, in partnership with the US NGO, Out & Equal, worked to get 35 companies and civil society organizations to sign the “Letter of Support for Diversity, Respect and Inclusion of LGBTI+ People in Workplaces in Brazil”. For the first time in history, companies have engaged in an advocacy initiative, addressed to Presidential candidates, so that they recognize the importance of diversity and inclusion in the workplace, because it is the right thing to do, it is good for business and it's good for Brazil.
We cut across all social classes. Our diversity and plurality permeate different religions and ideologies. It is worth remembering that 29% of the LGBTI population in Brazil voted for the current President, according to Data Folha.
Contrary to what some try to convey, the criminalization of LGBTIphobia does not restrict religious freedom. We just want to stop printing pages in the newspaper covered in blood, like the recent case of the transvestite killed in Campinas. His tormentor confessed to the crime and told how he removed the victim's heart and put the image of a Saint in its place. It is these refinements of cruelty that we fight and that configure LGBTIphobia.
We do not want to prevent freedom of worship or belief because we occupy the pews of Churches. Many of us are Christians. Christians who spray love where they go and not hate. There is no reason to fear the creation of legislation that punishes crimes arising from hatred and prejudice, if it claims to preach love, tolerance and compassion.
As our colleague from Anajure said, evangelicals do suffer prejudice, but they do not die for professing their faith. We die! And we don't have any legislation to protect us.
This Writ of Injunction only seeks that the Brazilian State undertakes to punish those who violate our most valuable right, the right to life. It seeks to obtain the intended criminalization based on the final part of article 5, inc. 71, of CF/88, as it is a necessary measure in the factual guarantee of the exercise of citizenship by the Brazilian LGBT population, as well as their fundamental right to security.
ADO 26 follows a very similar perspective, having as its object the legislative inertia of the National Congress in enacting a law to criminalize all forms of LGBTIphobia. As for legislative delay, it is based on the prohibition of poor protection, and the fundamental right to safety of the LGBTI population.
One cannot fail to consider the clear unconventionality of this legislative omission, since Brazil is a signatory to the American Convention on Human Rights, which it brings in its article 1.1. the obligation to respect rights, and in its article 2.1 the duty to adopt provisions of domestic law. This Court recently carried out a conventionality control in ADI 4275, when it adapted the Brazilian regulations to Advisory Opinion No. 24 of the Inter-American Court of Human Rights.
As if that were not enough, this Court has already considered, when judging the Ellwanger Case, that racism constitutes any ideology that preaches the superiority and/or inferiority of one group relative to another. It should be noted that the aforementioned judgment equates anti-Semitism with the crime of racism. In view of this, we recall that, just like the Jewish community, gays and lesbians were also sent to Nazi concentration camps, not carrying the Star of David on their arm, but the pink and black triangle, which marked their belonging to a said " inferior race” of sexual orientation other than heterosexual.
If its inclusion in the above-mentioned concept of racism is not accepted, unequivocally, LGBTIphobia falls within the concept of discrimination that violates fundamental rights and freedoms, which also imposes the elaboration of a criminal law that effectively punishes them. Still, in view of the right to isonomy and, therefore, the right to equal criminal protection, LGBTIphobia must be punished with the same rigor applied in the Racism Law.
By remaining inert, therefore, the Brazilian State also becomes the executioner of its citizens who are killed every day as a result of prejudice and LGBTIphobia.
In this sense, it is required that both demands be granted, so that this Constitutional Court, in its countermajoritarian nature, stipulates a deadline for the creation of legislation that protects the life, freedom and personal integrity of the LGBTI population. And even though it interprets Law nº 7.716/1989 (Racism Law), in order to cover discriminatory acts motivated by sexual orientation and gender identity, that is, against the LGBTI community. These are the arguments I bring, representing my peers present here. Thanks.
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Cover photo - March for the Visibility of Transvestites and Transsexuals 2019, in Curitiba, by KADIGGIA PUDELKO
1 comment
Me manda o vídeo com a sustentação oral ao dela. Não consigo achar. Só a do advogado.