Every year, thousands gather in Sao Paulo, Brazil, for one of the largest gay pride parades in the world.
Yet the few days of celebration stand in stark contrast to the lived reality of many lesbian, gay, bisexual, and transgender (LGBT) citizens in Brazil.
Violent crime has been on the rise in Brazil,1 and those numbers have reached dramatic levels for people of minority sexual and gender orientations.2 Brazil’s trans citizens are murdered at a higher rate than any other country in the world.3
The election of President Jair Bolsonaro, could potentially exacerbate these already dire conditions for LGBT folks. Bolsonaro once openly declared “Yes, I am homophobic — and very proud of it.” He also famously said he would “rather his son die in a car accident than be gay,” adding that “if a gay couple came to live in my building, my property will lose value. If they walk around holding hands, kissing, it will lose value!”4
Although Brazil’s legislatures and courts5 have made slow progress toward addressing LGBT rights, Bolsonaro’s extremist views leave many people wondering as to their legal status,6 and LGBT Brazilians are hoping that their government’s checks and balances will not undo the last three decades of progress.
Helena B. Mietka, is a 1L at UW Law School where she explores the intersections of gender, race, and law.
Bolsonaro and His Base
Although public attitude toward homosexuality have been growing steadily more positive – from 64 percent in 2014 to 74 percent in 20177 – Bolsonaro’s election of has emboldened his most passionate base of evangelical fundamentalists.8
Evangelicals comprise about 25 percent of Brazil’s population, yet are becoming increasingly powerful and have become part of the most powerful caucus in Brazil’s politics.9 They represent the majority of the Camara dos Deputados (Congress’s lower house) and contribute to the most conservative Congress elected since 1964.10
Yet, Bolsonaro may not be able to make the sweeping changes LGBT people fear without pushback, thanks to progress made by Brazil’s judiciary.
Legislative History and Legislative Hope
Despite its rampant homophobia, Brazil a country with strong political institutions.12
Brazil’s courts, legislature and its many parties serve as a safeguard for Brazil’s marginalized communities.11
“Bolsonaro’s fringe Social Liberal Party will have few seats and few allies in Brazil’s Congress, and unless he can make peace with enough members of the many parties within the political establishment he regularly attacks, he wouldn’t pass much legislation – let alone make a bid for dictatorial power,” writes journalist Ian Bremmer in a recent article.13
Even so, legislatively, Brazilian LGBT folks have had little remedy.14 Homophobia and transphobia are not considered hate crimes in Brazil, and discrimination on the basis of sexual orientation was excluded from the 1988 People’s Constitution.
In the 1980s, activists were successful in widening the scope of legislative attention by approaching state and municipal lawmakers, and asking them to introduce nonbonding motions that called on the federal government to suspend the World Health Organization categorization of homosexuality as a disorder and consider the addition of an antidiscrimination amendment contemplating sexual orientation in the constitution.15
Steps Toward Equality
Since then, significant steps have been taken toward equality – mostly by courts that addresses hate crimes and discrimination even in the absence of protective laws.16
In 2003, the Justice's National Council of Brazil legalized same-sex marriage in the entire country in a 14-1 vote by issuing a ruling that ordered all civil registers of the country to perform same-sex marriages and convert any existing civil unions into marriages.17
The Programa Brasil sem Homofobia (Brazil Without Homophobia Program or BSH) was proposed in 2004 through the Secretaria Especial de Direitos Humanos (Special Secretary for Human Rights).18
By 2007, Brazil had a substantial body of legislation on sexual orientation, on level with global standards. At least one hundred municipalities, 12 of its 26 states, and the Federal District all had some form of legislation protecting their LGBT citizens from discrimination. Rio de Janeiro and five cities had some form of legislation recognizing same-sex partnerships of public sector employees.
However, Brazil lags behind the U.S., in that it prohibits artificial insemination for single women and women in same-sex relationships.19 It also banned openly gay, lesbian, and bisexual people from the army.20
Additionally, recent legislative changes are already being made. In September 2018, a federal judge overruled a 1999 decision by the Federal Council of Psychology that banned conversion therapy, which is the attempt to change an individual’s sexual orientation.21
Bolsonaro will likely push legislators to veto new proposals that could grant LGBT folks more rights, revoke laws already in place, and stop projects underway for transgender health care. Conservative evangelical members of the National Congress will continue blocking legislation to protect and advance LGBT rights.22, 23
Activists argue that classifying violence against LGBT people as hate crimes is a first step to combat anti-LGBT violence and hold perpetrators accountable.24 Whether they can hope for that under Bolsonaro’s presidency remains to be seen.
Endnotes
1 Brazil goes to the polls on Sunday. It could be the country’s most important election ever., Vox.com, Oct. 5, 2018.
2 We Need to Talk About Anti-LGBTQ Violence in Brazil,Advocate.com, July 12, 2016.
3 The Transgender Europe’s Trans Murder Monitoring reported that more than half of the worldwide homicides of trans individuals happened in Brazil.
4 Mariana Simões,“Brazil’s Polarizing New President, Jair Bolsonaro, in His Own Words”, New York Times, Oct. 28, 2018.
5 Learn more about Brazil's legal system on the websites of the Library of Congress and the Wilson Center.
6 Brazil's New President Jair Bolsonaro Has Women & LGBTQ People Worried About What's Next, Bustle.com, October 2018.
7 The Global Divide on Homosexuality, Pew Research Center, June 4, 2013.
8Could Brazil be the worst place in the world to be gay?, PRI.org, Nov. 7, 2014.
9 C.P. Ogland and A.P. Verona, Religion and the rainbow struggle: does religion factor into attitudes toward homosexuality and same-sex civil unions in Brazil?, J. Homosex. 2014;61(9):1334-49.
10 Bruce Douglas, Brazil's 'bullets, beef and bible' caucus wants to imprison 16-year-olds, The Guardian, April 17, 2015.
11 Adriana Vianna, "Sexual Politics and Sexual Rights in Brazil," in Mario Pecheny and Javier Corrales, The Politics of Sexuality in Latin America. Univ. of Pittsburgh, 2010, pp. 122-34.
12 Keith S. Rosenn, “Separation of Powers in Brazil,” 47 Duq. L. Rev. 839 (2009).
13 Ian Bremmer, Brazil’s Democracy Can Survive the Rise of a Diehard Demagogue, Time, Oct. 4, 2018.
14 Vianna, pp. 122-34.
15 Rafael de la Dehesa,Queering the Public Sphere in Mexico and Brazil: Sexual Rights Movements in Emerging Democracies. Duke University Press, May 2010, pp. 118-119.
16 Sueann Caulfield, The Recent Supreme Court Ruling on Same-Sex Unions in Brazil: A Historical Perspective, International Institute Journal, University of Michigan, Fall 2011.
17 Id.
18 Illana Mountian, "A Critical Analysis of Public Policies on Education and LGBT Rights in Brazil," Sexuality, Poverty, and Law. Institute of Development Studies, University of Sussex, 2014.
19 LGBT world legal wrap up survey, International Lesbian and Gay Association, 2006.
20 Id.
21 Brazil, Human Rights Watch.
22 The evangelical coalition pressured President Rousseff into not supporting the bill that would have added crimes based on sexual orientation and gender identity as hate crimes to the Country’s Penal Code.
23 Brazil, Human Rights Watch.
24 Id.
