The LGBT community has been subjected to discrimination based on gender identity, expression and their sexual orientation for centuries. However, recently, their right to self-identity and sexual autonomy is slowly gaining momentum across the world with progressive judgments being passed in their favour.
Despite several courts recognizing and affirming their rights, the interests of the community remain unattended for the reason that courts and the political institutions of the country do not see eye-to-eye on the matter. Law as a tool for social transformation remains largely hollow without the combined effort of the country’s legislature and the judiciary. This is especially relevant in cases where the law is given a beneficial interpretation affirming rights of communities and persons who have been discriminated against historically.
The experiences of the community in Brazil is an apt example illustrating the need for judicial reform taking place in sync with legislative ones in order to effectuate tangible change. Popularly known as the Brazilian Paradox, the country’s treatment towards the community is, as the name suggests – paradoxical. While being one of the champions of their rights, Brazil is also simultaneously the home of systemic and widespread persecution on grounds of gender and sexuality.
The Brazilian Legal Framework
Legally, the rights of the LGBT community have been recognized as reinforced within the country earlier than most others. Homosexuality has been legal in Brazil from the year 1830 onwards. Following the recognition of same-sex couples as stable unions in 2011, the National Justice Council of Brazil recognized and upheld the validity of same-sex marriages in the year 2013. Their right to adopt and also to serve in the military have also been protected. Another milestone was achieved in the year 2018, when the transgender persons were no longer required to undergo medical procedures or subject themselves to judicial review before changing their names and gender identities on government documents. Most recently, in the month of May, 2019, the Brazilian Supreme Court responded to suits filed by noteworthy LGBTQ organizations, with the majority voting in favour of criminalising homophobia treating this at par with the crime of racism. These instances depict a judiciary that is invested in judicial activism by using the law to benefit and afford them basic human rights.
Despite the existence of such a forthcoming judiciary, Brazil still identifies as one of the most dangerous and violent places as far as the rights of persons belonging to the LGBT community are concerned. Brazil is also home to the largest Catholic population in the entire world providing its current President the support he requires in discriminating against LGBT persons. Brazil has witnessed a sudden but definite increase in crimes relating to homophobia and transphobia under its current president, who has been vocal about his distaste and intolerance for LGBT persons. In a survey conducted by the Gay Group of Bahia, the oldest organization working for the defence of human rights of LGBT persons, it was observed that at least one LGBT person is killed every 25 hours in Brazil. The same organization subsequently released data pertaining to the number of deaths of LGBT persons on an annual basis pegging the number to be over 400. Maite Schneider, from a prominent LGBT advocacy group, has stated that despite the promise of equality enshrined in the Brazilian Constitution, the people of the community suffer a great risk of being discriminated against.
The Way Forward
Progressive judicial pronouncements passed in isolation without the requisite political backing complicates the law-enforcement procedure unimaginably. It not only creates confusion but also portrays the state itself to be wavering and uncertain about its policies. The paradox discussed here is heightened in Brazil because of its traditionally forward-thinking approach to LGBT concerns but may not necessarily be unique. Almost all countries which are characterised by an active judiciary and a conservative right-wing government is going through this paradox. In India, too, for example, such a paradox is evident. Albeit much later than other countries, recently, the Supreme Court has affirmed the rights of sexual autonomy, self-identity and self-expression. Despite this, the community in India still remains largely backward and under-represented in both governmental and private institutions. The judgment was accompanied by the Transgender Rights Bill, 2016 which sets back the clock on LGBT jurisprudence within the country by, for example, mandating the production of a certificate of identity issued duly by the court of the District Magistrate.
The community as a whole is more disappointed than relieved with the provisions contained in the Bill with Ms. Anindya Hajra clearly stating that the community is prepared to fight the bill tooth and nail. These instances point to the understanding that for a law to be effective and truly beneficial, it is insufficient for different agencies of the government to work in a disunited fashion. Not only does social change require that the judiciary, the legislature and society fight these inequalities but also that they fight together.
Uttanshi Aggarwal is a Research Associate at One Future Collective.
Featured image source: Daily Signal
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