Democracies perpetually strive for, yet inevitably fall short of, harmonizing what is legal (and illegal) and what is just (and unjust). One issue that has received significant attention in both legislative and judicial decisions in democracies around the world is the rights of LGBTQ individuals in all aspects of society—employment, family law, inheritance, military service, etc. In many countries, most of the progress with respect to the rights of LGBTQ individuals comes from the courts rather than from the legislature.
In this article, we consider the routes that two different democracies—Brazil and the United States—have taken to remedy the lag by the legislature in protecting the rights of LGBTQ individuals in each country.
Evolving Protections for LGBTQ Individuals in Brazil
Brazil has addressed issues of same-sex marriage, hate crimes against LGBTQ individuals, and parental and inheritance rules regarding same-sex partners.
In May 2011, the Brazilian Supreme Court (STF) held in Direct Action of Unconstitutionality (ADI) 4277 and in Claim of Breach of Fundamental Precept (ADPF) 132 that same-sex marriage deserves equal protection under the law. Later, in May 2017, STF ruled unconstitutional Article 1,790 of the Brazilian Civil Code in Extraordinary Appeals (REs nº 646721 and nº 878694). The Article prescribes different inheritance rules for spouses and partners. The Court’s conclusion was that there is no justification for the different treatment of spouses and partners (including a gay partner) established by the Civil Code.
More recently, the STF once again affirmed its role in extrapolating from existing legislation to protect LGBTQ individuals: it described homophobia and transphobia as a hate crime, even though the Brazilian hate crimes law does not define discrimination based on sexual orientation as a criminal offense.
Brazil does not have a hate crime statute that specifically prohibits crimes motivated by sexual orientation or gender identity (unless it involves a more serious offense, e.g., murder), although its Constitution proscribes any form of discrimination (articles 3, item IV, and 5). The Brazilian legal definition of hate crime includes only practicing, inducing or inciting discrimination or prejudice of race, color, ethnicity, religion or national origin (art. 20 of Federal Law nº 7,716/1989).
That is why, in 2014, the Brazilian Supreme Court (STF) rejected accusations against conservative congressman Marco Feliciano (Inq nº 3590), by stating that making a manifestation of a discriminatory nature in relation to homosexuals is not a crime, according to art. 20 of Federal Law 7,716/86. Feliciano has published on Twitter that the rotten feelings of the gays lead to the hatred, the crime, the (sic) rejection. Justice Roberto Barroso (concurring) acknowledged that Feliciano’s tweet was bad-tasting and extremely unfortunate, but it was not illegal for criminal purposes (nullum Crimen Sine Lege principle, i.e. no crime without law).
The recent STF decision criminalizing homophobia has the force of law and obliges law enforcement agents, prosecutors and inferior courts. It subjects an offender to the penalties prescribed by Federal Law 7,716/86 (one- to five-year sentence) if he e.g., refuses a qualified job applicant or denies access of another person to a public or private building because of sex orientation (18 other means of discrimination are proscribed by the Law, including hate speech), until a Law is enacted by the Brazilian National Congress.
The recent STF shift is due to the legislative failure to act over a long period—there are at least 15 pending bills since 1997 making homophobia or transphobia an offense—and to leading offense rates against LGBTQ individuals. Brazilian studies show 73% of LGBTQ students have been verbally mistreated because of sexual orientation; 68% of employees have witnessed some form of homophobia in the workplace; and more than 50% of São Paulo residents have witnessed an act of discrimination based on sexual orientation or gender identity in public spaces. Brazil also leads the world in transgender homicides, according to Transgender Europe.
A Different Route for LGBTQ Rights in the United States
U.S. courts tend also to move more quickly than the legislative branch when it comes to recognizing the rights of minority groups. The separation of powers principle precludes courts from filling in legislative “gaps,” at least in theory. To be sure, no U.S. court would extrapolate coverage of sexual orientation or gender identity from statutory language that said simply “because of race.” However, statutory protections on the basis of sex do not so clearly exclude sexual orientation and gender identity.
For example, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Over the past half century, courts have increasingly interpreted Title VII’s protection on the basis of sex to include protection on the basis of transgender identity and sexual orientation. In the U.S. Supreme Court’s landmark case Price Waterhouse v. Hopkins, the Court clarified that discriminating against an employee because the employee fails to meet gender stereotypes is discrimination on the basis of sex under Title VII. A majority of courts have relied on the sound reasoning of Price Waterhouse to hold that discrimination based on sexual orientation (preferring romantic relationships with someone whose gender is not the stereotypically expected gender) and transgender identity (appearing or identifying as a gender different from what is stereotypically expected) also falls within the scope of Title VII protection.
The U.S. Supreme Court recently agreed to review three cases in the upcoming term that collectively present the precise questions whether Title VII’s protections include protection on the basis of sexual orientation and gender identity.
Interpreting and Addressing Legislative Inaction
In the United States, courts are loath to make any concrete inferences from legislative inaction. The failure of a legislative body to pass a particular law can support numerous conflicting interpretations. On the one hand, it could mean that Congress assumes that existing law already encompasses the proposed changes, so the enactment of a new law doing the same would be unnecessary and redundant. On the other hand, a court could interpret legislative inaction to mean that Congress affirmatively desires that the changes not be enacted and does not pass the law in question for that reason. These two interpretations of congressional inaction are mutually exclusive; both are reasonable yet they cannot both be true.
Courts in Brazil are not so limited and have an additional tool at their disposal; the recognition of a legislative omission. Some constitutional democracies (including Brazil) recognize the principle that the legislature’s failure to act constitutes a “legislative omission” if it is aware that something anti-democratic is happening (such as violation of a group’s civil or human rights) and fails to take steps to prevent it (such as by making the harmful behavior a crime). In other words, there are some rights that should still be protected even in the absence of legislation expressly recognizing them.
For example, the Brazil Constitution guarantees public employees the right to strike “in accordance with law,” but until Congress enacted such a law dictating the parameters of a permissible strike, public employees could not hold a strike. STF ruled unconstitutional the legislative omission and held that, until such law is enacted, public employees can carry out strikes in accordance with the General Law on Strikes (which applies only to private employees). Thus, STF may issue a stopgap measure to prevent the continued violation of rights until Congress acts to do so itself.
In the United States, the closest analog to the principle of the legislative omission is in tort law. Though generally there is no affirmative duty to act to prevent harm to another person, the presence of a special relationship between two persons sometimes gives rise to such a duty. The Restatement (Second) of Torts § 314A provides that “[o]ne who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.”
Through this lens, we might see that Brazil’s legislature has a special relationship with its people and therefore its failure to act to prevent harm to its people constitutes a violation of its duties.
An Uncertain Future of Judicially Established Rights
Whether courts in the United States and Brazil will continue to intervene as the protectors of LGBTQ rights in the absence of legislative action remains to be seen. The now-conservative-leaning U.S. Supreme Court may undo several decades’ worth of progress in the lower courts and hold that Title VII’s “because of sex” language does not protect from discrimination on the basis of sexual orientation or gender identity.
In contrast, many in Brazil perceive the justices of the STF to be more liberal than society writ large, and even a conservative President—who deemed the STF decision criminalizing homophobia to be completely wrong—supported by a conservative Congress is not an insurmountable obstacle for advances. Despite the expected backlash, the STF will keep playing a significant role as a counter-majoritarian institution in the next years.