Brazilian Supreme Federal Court forms a majority to recognize offenses against LGBTQIA+ individuals as racial defamation

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Last Monday, August 21st, the Brazilian Supreme Federal Court (STF) issued a decision, 9 against 1 votes in favor to officially allowing that acts characterized as homophobia and transphobia to be considered as crimes of racial defamation. In 2019, the same court had established the classification of these forms of discrimination as crimes of racism.

In the virtual plenary session, nine justices followed the vote of the case’s rapporteur, Minister Edson Fachin. Only Minister André Mendonça declared himself disqualified and did not vote. “I understand that the hermeneutic interpretation that restricts its application to cases of racism and leaves racist offenses committed against individuals in the LGBTQIA+ community without protection contradicts not only the challenged ruling but the entire constitutional framework.”, said Fachin.

The deliberation took place within the virtual plenary of the Supreme Court, where the Brazilian Association of Lesbians, Gays, Bisexuals, Transvestites, Transsexuals and Intersex People (ABGLT) they presented their request, emphasizing that this equivalence is essential to ensure strong protection for individuals within the LGBTQIA+ community, as well as for the collective as a whole.

– BKDR –

The underlying reason for this action is based on the difference between racism and racial defamation, distinct concepts in the legal field:

• The crime of racism concerns the punishment of discriminatory offenses directed at groups or collectives;
• while the crime of racial defamation targets the penalization of those who disrespect the dignity of another person using elements related to their race, color, ethnicity, or national origin.

Due to the lack of clarity regarding the exact scope of these offenses, ABGLT pointed out that lower instances of the judicial system have interpreted them variably, claiming that “Homo transphobic insults targeting LGBTQIA+ groups are treated as racism, while attacks directed at individuals belonging to this vulnerable community are not classified as racial defamation.”.

By equating individual offenses with the crime of racial defamation, the decision will allow discrimination against individuals from the LGBTQIA+ community to be subject to more stringent penalties, surpassing the other penalties associated with crimes against honor.

It’s worth noting that the equivalence between the crimes of racism and racial defamation had already been established by the Supreme Federal Court (STF) itself and was ratified through a law sanctioned in January by then-President Luiz Inácio Lula da Silva (PT). The new legislation, enacted this year, stipulates that racial defamation is to be considered non-bailable and not subject to a statute of limitations. The prescribed penalty ranges from two to five years of imprisonment, with the possibility of doubling in cases where the crime is committed by two or more individuals.