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Illustration: Flor Capella

On Thursday, June 13, Brazil's Supreme Federal Court (STF) ruled that homophobia and transphobia will be punished in the same way as racism. This initiative was celebrated by LGBT+ groups as a step forward in a country where Congress has ignored the issue. At the time, Jair Bolsonaro, an outspoken homophobe and critic of the initiative from its inception, said that the court "appears to be legislating."

In a country where being LGBT+ carries risks, this is a historic event. The debate has been ongoing since February. In the sixth session, with 8 votes in favor and 3 against, the ministers approved that homophobic and transphobic acts be sanctioned under the Racism Law (7716/89), which until yesterday only covered crimes based on "race, color, ethnicity, religion, and national origin."

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Brazil leads the world in the worst statistics for violence against trans people. In November 2018, the Trans Murders Observatory revealed that of a total of 369 reported homicides of trans and gender-diverse people between October 1, 2017, and September 30, 2018 (an increase of 44 cases compared to the previous year), the majority were perpetrated in Brazil: 167, followed by Mexico with 71. And after the electoral victory, the media reported that two trans people were murdered with hate speech invoking Bolsonaro.

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The court's president, Dias Toffoli, and justices Ricardo Lewandowski and Marco Aurelio voted against the decision. They argued that Brazil's Congress had ignored the need to legislate on these issues. In their view, it is the legislature that should decide on the criminalization of certain conduct.

The court acted taking into account that for 18 years, since the first proposal for the protection of the LGBT+ community was presented, there had never been a response.

Supreme Federal Court Justice Celso de Mello stated that this decision does not interfere with religious freedom. Catholic and evangelical groups will be able to reject it in their services and activities: "As long as these manifestations do not constitute hate speech, nor incite discrimination or violence against people based on their sexual orientation or gender identity," he told the Rio de Janeiro newspaper Folha de S.Paulo.

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The Supreme Federal Court's official Twitter account shared the words of one of its members, Justice Gilmar Mendes: "Sexual orientation and gender identity are essential for human beings, for self-determination, for deciding their own lives and seeking happiness." He also emphasized that the lack of criminalization of homophobia and transphobia contributes to the oppression suffered by LGBTQ+ people.

This decision establishes that practicing or inciting discrimination based on a person's sexual orientation may be considered a crime punishable by one to five years in prison and a fine.