By Alinne Lopes Gomes
|Photo by Eric Froehling on Unsplash|
LGBT citizens and the constitutional guarantee to form families and exercise the right to affection.
“In 2013, the National Justice Council edited the Resolution 175 which prohibited the authorities responsible for the civil registries to deny habilitation for the civil marriage of LGBT couples.”
In 2011, while analyzing the Argument of non-compliance with fundamental precept (ADPF 132/RJ) and the Direct Unconstitutionality Action (ADI 4.277/DF), the Supreme Court understood and recognized that the core formed by individuals of the same gender identity or diverse sexual orientation formed a familiar institution with the same specifications, rights and responsibilities as the ones formed by heterosexual couples. The court recognized as well the equivalence between heteronormative and homoaffective stable unions.
The arguments used by the Justices of the court to concede the right of forming a union between people of the same gender relied on a principle present in Brazilian law where the prohibition to be effective must be explicit in the normative conjecture. The article 226, paragraph 3º of the Federal Constitution regulates the institute and reserves no impediment to its application to homosexual couples.
In Brazil, stable unions hold the same rights and obligations as a civil marriage. It is assured to the partners the right to succession, which means that in the occurrence of the death of one of them, the other one’s access to inheritance is protected by the Civil Code. The characteristics to constitute a stable union sums up to the existence of long, known, continued bond between two people.
Specialists in Constitutional Law and Family understand that the creation of a separate institute for LGBT individuals to access instead of the regular civil marriage is a form of infringement of the constitutional rights and guarantees. The concept of civil union is not present in the country’s legal system; Congresswoman Marta Suplicy’s bill, presented in 1995, shapes the regulation of the mechanism. In direct opposition to this bill, is the project presented in 2013 by Congressman Jean Wyllys and Congresswoman Erika Kokay, which would edit the Civil Code to add homoaffective marriage and stable union to the weight of law.
Utilizing the atypical competence of the Judiciary branch to establish guidelines for important matters not evoked by the Legislative, in 2011 the Superior Court, while judging the special appeal 1.183.378/RS, consolidated the understanding that couples of the same gender identity could file for civil marriage. The federal protection was meant to apply to the families constituted and not solely on the marital bond based on religious tradition.
The evolution of social standings and concepts revolving around marriage and family were taken into consideration when the Justices were voting the appeal. The case in place was the denial of the request made by two women to be allowed the habilitation to perform the civil marriage. Their request had been denied on the first and second instances, only to be granted by the Superior Court. The vote given by the reporting Justice affirmed that the majority can’t democratically take away civil rights from the minority when the decision was accused of being an example of a toxic Judicial Activism.
The Superior Court discussed in 2012 the legal possibility of a homosexual couple adopting a child under the protection of the social services of the State. The Special Appeal 1.281.093/SP brought to light the evolution of biomedicine and the progressive nature of the new relations being formed within society, when two women living under the guard of a stable union decided to use artificial insemination to have a child. The court analyzed the request of legal adoption of the mother with no blood bond with the child.
Their request had been accepted by the first and second instances and landed on the Superior Court to be reviewed after the Brazilian Government Agency for Law Enforcement and Prosecution of Crimes (Ministério Público) interposed the Appeal. Originally, the causes which led the organ to ask for the denial to the right to adopt were based on the lack of duality between the sexes of the considered parents. The prosecutors of the case argued that there would be no material benefits to the child, questioning the discrimination and embarrassment to which they would be exposed.
The higher court decided to sustain the original decision of the lower courts. Their judgement was based on several constitutional principles and norms present in the Statute of the Child and Adolescent, which already comprehended the possibility of a unilateral adoption in cases of stable union. The stitching point to further consolidate the understanding was the notion that the courts and the law were obligated to follow the practical reality of the countries’ families.
The respect towards family diversity and alternative formations were of essential importance in what concerned rights, guarantees and the protection of the children involved. The Justices decided in favor of the two mothers to ensure that the bond between the family was not broken if the birth mother passed away; avoiding the legal insecurity between the remaining parent and the child.
These examples serve to further prove how active and important the Judiciary branch is in the solidification of LGBT rights, being the first and most present front on the social movements fight. The progress made by the movement for the promotion of material guarantees has met in the higher courts an unstable ally; the rotation of Justices could jeopardize these rights if they are not consolidated in the form of laws.
This article is extracted from the Research paper titled 'LGBT Policies and Overall Safety in Brazil' in Chapter 4 of the Safety Report by SAFIGI Outreach Foundation 'Safety First for Girls'.
The Safety Report by SAFIGI is a two-fold Open research on 'Core Issues Affecting Safety of Girls in the Developing World.' The first part of the Safety Report is a Research Paper. The second part is a detailed Data Analysis.
The Safety Report Research paper is titled: 'Core Issues Affecting Safety of Girls in the Developing World.' The paper starts with an abstract before focusing on subjects in the key regions of Africa, Asia, and the Americas. A total of 7 Research papers make up the safety Report (sans the introduction and conclusion), including:
- The psychological effect of mass sexual harassment on girls in Egypt (P.24) by Heba Elasiouty.
- Safety concerns in relation to social media: Growing up female in an increasingly digital world (P.45) by Karin Temperley.
- Psychosocial challenges faced by parents raising children with physical disabilities in Oshana region (P.68) by Misumbi Shikaputo.
- Gender-based violence and subsequent safety challenges experienced by Rohingya women (P.119) by Shucheesmita Simonti.
- LGBT policies and overall safety in Brazil (P.141) by Alinne Lopes Gomes.
- Silent voices‘: Violence against the female body as consequence of machismo culture (P.177) by Steffica Warwick.
- America‘s Public Policy on Sexuality: The Repression of Girls in Vulnerable Populations (P.208) by Dr. Christina Sisti.
The Safety Report Data Analysis is titled: 'Core Issues Affecting Safety of Girls. Results and Outcomes based on Zambia, Egypt, USA, Tanzania, South Sudan, and Namibia.'
SAFIGI Outreach Foundation Ltd, a volunteer-based and youth led NGO registered in Zambia, implemented the Safety Report in order to understand the multifaceted concept of safety and how it applies to the female gender in diverse settings. And therefore, further prove safety is intrinsic, and that vices in society stem from an intimate level of the human being before its manifestation. This way, when we create safety solutions, whether it be in a developing nation, conflict zone, refugee camp, or patriarchal society, the problem is resolved from a deeply rooted cause. Such that, we treat the disease itself and not mere symptoms.
This study is as a result of collaborative effort pursued in the spirit of volunteerism via UN Online Volunteers.