Jun 272012
Brasil STF

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Taking advantage of the favourable tide in court, the gay movement has lead to the STF (Supreme Federal Court) its main demand: the criminalization of homophobia.

The creation of this crime, in theory, should be made by Congress, which by religious resistance until today failed to decide on a project that is going through since 2001. Meanwhile, Justice granted the right to adoption, the stable Union and gay marriage.

"We are banking on the hope in the Supreme, because in Congress is difficult," argues Toni Reis, President of ABGLT (Brazilian Association of lesbians, Gays, bisexuals, transvestites and transsexuals).

Last month, and without fanfare, the entity presented a writ of injunction, used to ask the Court to declare the omission of the legislature approve a question.

For the ABGLT, to say that the State should punish the "discrimination adversely affecting fundamental rights and freedoms", the Constitution determines that discrimination and violence against gays are criminalized.

This is the first application of the action: the SUPREME COURT recognize that Congress has the constitutional duty to enact law in this sense, explains Paulo Iotti, ABGLT's lawyer.

The Association also asks that the Court fix a reasonable deadline for this and suggests that it is punished as racism discrimination based on sexual orientation or gender identity – which would include the "heterophobia".

Until now, the issue is already controversial, because, according to Iotti, this is the first time that this type of action would be used to establish a crime.

The third application is even more controversial, because requests that, if the Congress ignore the decision, Supreme himself understand homophobia as a form of racism, by applying the law that already exists.

Iotti envisions questions at this point due to the principle that "there is no crime without law earlier than the set", which necessarily would require the approval of Congress.

The lawyer believes, however, that the Supreme can be inspired by a decision which adapted articles of the law of private employees strike for application to strike of civil servants, in 2007.

The last request of action is that, while homophobia is not criminalized, the Supreme determine the responsibility of the State in the current scenario and the duty to indemnify the victims. "There's a banality of evil homophobic. Homophobia is not criminalised has generated an air of impunity, "says Iotti.