“Freedom of expression” or “opinion”. This is how LGBTphobic statements and attitudes are almost always justified by their authors – especially when they are publicly charged and accused.
The most recent case is that of volleyball player Maurício Souza, who two weeks ago made a prejudiced post on Instagram about the bisexuality of a comic book character, the son of Superman.
After pressure from sponsors of the Minas Tênis Clube, from which he was hired, Souza even apologized on the internet, but returned to a homophobic position, saying that he defends what he believes. It wasn’t enough, and he was fired last Wednesday (27).
The situation, in addition to bringing to light another case of prejudice, also raises discussion about the circumstances in which comments such as Maurício Souza’s can be considered a crime, as provided for by the STF (Superior Federal Court). In 2019, the Court equated acts of discrimination based on sexual orientation or gender identity with the crime of racism.
Unlike racial insult, which is an individual offense and affects the honor of a particular person, racism – and, by extension, LGBTphobia – is characterized as a behavior that attacks an entire community.
These are speeches that preach inferiority, segregation or elimination of certain groups and that are not protected by the right to free expression of opinion and thought, guaranteed by the Federal Constitution.
Thus, it is a crime to practice, induce or incite discrimination or prejudice, whether based on race, color, ethnicity, sexual orientation or gender identity. Saying that LGBTs are a danger to society and that they should not have space in the media or cultural productions is an example of punishable conduct. The penalty is 1 to 5 years in prison.
If you have been a victim or become aware of a crime of LGBTphobia, the first step is to go to the responsible authorities to register the case. If the complaint is not formalized, it will never be recognized or entered into official statistics.
Some states have specialized anti-discrimination police stations and groups of prosecutors dedicated exclusively to the issue.
There are also municipal, state and federal channels that receive this type of complaint. The best known is Dial 100, or Dial Human Rights, but there are numerous ombudsmen, councils and local human rights bodies that perform a similar function.
In any case, once the existence of a crime is found, it will always be up to the Civil Police to investigate the facts and to the Public Prosecutor’s Office to request the condemnation of the accused before the courts.
In some states, local laws establish administrative penalties for acts of homotransphobia. This means that people and even commercial establishments can be fined or have their business licenses hunted for discriminating against LGBTI+ people.
This is the case of São Paulo, which in 2001 passed Law 10,948, one of the first laws to punish discrimination based on sexual orientation and gender identity. In two decades, there were 168 convictions – 140 warnings and 29 fines, totaling around R$ 940 thousand -, as shown by a report from Diadorim Agency.
In these cases, in general, the state departments of Justice themselves receive and process the complaints, but the procedure may vary according to each legislation.
Despite the Supreme Court decision being more than two years old, there is still a long way to go. A survey by the organization All Out and the Matizes Institute pointed out 34 barriers to the effective criminalization of LGBTphobia.
Among the problems are the police’s lack of preparation, lack of transparency, lack of data standardization and prejudices that are still firmly rooted in the institutions responsible for receiving and processing such complaints.
If you don’t feel safe or don’t know how to file a complaint, look for a lawyer to guide you or go to the Public Defender’s Office. Groups of activists and NGOs dedicated to promoting the rights of the LGBTI+ population also have extensive experience in following up on complaints and can support you in the process.
To find out which collective or NGO is closest to you, search the ABGLT (Brazilian Association of Lesbians, Gays, Bisexuals, Transvestites, Transsexuals and Intersex) and National LGBT Alliance websites.
ABGLT also makes available a “Citizenship Map”, with the main legislations and defense bodies of the LGBTI+ population in each state.
*Paulo Malvezzi is a member of Diadorim, an independent, non-profit journalism agency engaged in promoting the rights of the LGBTI+ population
Edition: Leandro Melito