Brazil’s Supreme Court Rules Homophobia Punishable by Prison in Landmark Decision

Being a queer Latinx can be an alienating and often dangerous experience. As greater Latinx culture places traditional family values on a pedestal and enforces harmful structures like heteronormativity, machismo, and marianismo, many LGBTQIA+ people in Latin America face the risk of being discriminated against and even attacked for their sexuality and gender orientation/expression. Additionally, with the rise of right-wing conservatism and anti-trans rhetoric around the world, these problems have been exacerbated. However, many countries are taking steps to bring down homophobia and create a more accepting society, with the latest being Brazil. On Tuesday, Brazil’s Supreme Court ruled that homophobic hate speech is now punishable with a prison sentence in a historic victory for LGBTQIA+ people in Brazil and around the world.

wp_*posts

The nearly unanimous 9-1 ruling means that homophobic hate speech is now a crime and on the same level legally as racist hate speech, which is punishable by 2-5 years in prison. Justice Edson Fachin, the lead judge on the case, said in his ruling that protecting LGBTQIA+ citizens under the law was a “constitutional imperative.” 

According to Article 20 of the Brazilian Penal Code, practicing, inducing, or inciting discrimination “based on race, color, ethnicity, religion, or national origin” is punishable with a substantial fine as well as two to five years in prison. 

The issue was brought to the courts by a queer rights group called Associação Brasileira de Lésbicas, Gays, Bissexuais, Travestis, Transexuais e Intersexos (ABGLT) in order to extend the Court’s previous decision criminalizing homophobia on the same level as racism. Back in 2019, judges ruled that homophobic hate speech is a crime equivalent to racism, but the decision pertained to slurs against the LGBTQIA+ community as a whole rather than specific attacks on individuals. 

ABGLT advocated for the push to further criminalize homophobia because they argued that Brazil’s previous ruling, which didn’t punish acts of homophobic hate speech toward an individual as much as it punished hate speech against a group, made it difficult to punish individual offenses and didn’t protect LGBTQIA+ citizens enough. 

Brazil also has legal hate speech protections for HIV-positive individuals; those who are found guilty of discriminating against HIV-positive people are liable to face one to four years in prison. 

With this decision, the Brazilian government hopes to lower the rampant violence and discrimination against the LGBTQIA+ community. According to rights group Transgender Europe, Brazil, which boasts a population of about 203 million people, is the deadliest in the world for trans people. From 2008 to 2022, 1741 trans people were murdered in Brazil, with around 228 of those murders occurring last year. 

Trailblazing Brazilian trans politician and activist Erika Hilton celebrated the ruling on X (formerly Twitter), writing, “Victory against LGBT-phobia.” After becoming the first trans woman elected to the city council in São Paulo, she made history again in 2022 after she became the first trans Black woman elected to Brazil’s congress. 

Though progress is being made there is still much change that needs to happen. Brazilian journalist and LGBTQIA+ activist Jean Wyllys was forced into exile after receiving homophobic hate speech and death threats while serving as one of Brazil’s first openly gay members of parliament.

“Hate speech and lies threaten individuals and collectives. In short, freedom of expression is not and cannot be freedom of oppression. The limit of freedom of expression is the human dignity of those at whom the expression is directed,” he told Media Defence in 2022.