LGBT rights in Brazil

Protest in front of the National Congress of Brazil in Brasília

LGBT part of Ipanema Beach in Rio de Janeiro

• 1830: Dom Pedro I signed into law the Imperial Penal Code. It eliminated all references to sodomy.[27]
• 1979: O Lampião, a gay magazine, with contributions by many famous authors, like João Silvério Trevisan, Aguinaldo Silva and Luiz Mott, was launched. It survived for just a year.
• 1980: Grupo Gay da Bahia, the oldest gay rights organization in Brazil, was founded in the city of Salvador, together with SOMOS, another organization in the city of São Paulo.
• 1989: The constitutions of Mato Grosso and Sergipe states are signed into law. They explicitly forbid discrimination on the ground of sexual orientation.[28][29]
• 1995: Congresswoman Marta Suplicy proposed Bill project No. 1151 concerning civil unions.
• 1997: G Magazine, the first gay-oriented erotic magazine, was published enjoying large and national distribution until its final issue in 2013.
• 2004: Rio Grande do Sul began allowing same-sex partners to register civil unions in a generic civil law notary after a court decision in March 2004.[30]
• 2006: A lesbian couple from Rio Grande do Sul was the first to successfully adopt.[31]
• October, 2006: Fashion designer and television presenter Clodovil Hernandes became the first openly gay person to be elected as a congressman in Brazil, with 494,000 votes.[32]
• June 10, 2007: In its eleventh edition, the São Paulo Gay Pride Parade broke its own record as the biggest parade in the world and attracted 3.5 million people.[33]
• June 25, 2007: The Richarlyson affair occurred in which a judge was brought before the Justice Council of São Paulo for stating in court that soccer is a "virile, masculine sport and not a homosexual one." However, afterwards, the same judge apologized and decided to annul the decision he wrote.[34]
• 2008: A national LGBT conference was held. The event, the first in the world to be organized by a government, was a result of demands made by civil society and the Brazilian Government's support of LGBT rights.[35]
• 2010: In a landmark trial, the 4th Class of the Superior Court of Justice of Brazil acknowledged, unanimously, that same-sex couples have the right to adopt children.
• 2011: On May 5, the Supreme Federal Court unanimously extended stable unions (Portuguese: união estável) to same-sex couples nationwide by redefining the laic definition of the family and providing 112 rights to these couples. The extension of marriage was not discussed in this decision.[10][36][37][38]
• 2011: On June 27, the first same-sex civil union was converted into a same-sex marriage in Brazil. The conversion was ordered by a São Paulo judge. Since this case, many other civil unions have been converted into full marriages.[39]
• 2011: On October 25, the Superior Court of Justice declared that the legal union of two women who could be recognized as a marriage. Differently from the U.S. Supreme Court's "stare decisis", the Superior Court decision would only reach the authors of the demand, but stood as a precedent that could be followed in similar cases.[40]
• 2013: On May 14, the Justice's National Council of Brazil legalized same-sex marriage in the entire country in a 14–1 vote by issuing a ruling that orders all civil registers of the country to perform same-sex marriages and convert any existing civil unions into marriages if such a couple desires.
• 2018: On March 1, the Brazilian Supreme Court ruled that transgender people may change their legal gender without undergoing surgery, hormonal therapy or receiving a medical diagnosis.
• 2018: In October, following the 2018 Brazilian general election, Fabiano Contarato was elected as the country's first openly gay senator and Érica Malunguinho as the first transwoman representative.[41]
• 2019: On February 1, David Miranda, a black gay representative, replaced Jean Wyllys, as Wyllys announced in January 2019 that he had left the country due to death threats. This was the first time that a gay representative was replaced by another gay representative in Brazil.[42]
• 2019: On June 13, the Brazilian Supreme Court ruled that discrimination on the basis of sexual orientation and gender identity is a crime akin to racism.[8]
• 2020: Supreme Court permits that MSM's to donade blood with no deferral period.

Paulo Vannuchi, Minister of the Special Secretariat for Human Rights, promoting LGBT rights in March 2009

On May 14, 2013, the Justice's National Council of Brazil legalized same-sex marriage (Portuguese: casamento homoafetivo [kazɐˈmẽtu õmu.afeˈtʃivu], also commonly casamento gay, casamento igualitário [iɡʷaliˈtaɾi.u]) in the entire country in a 14–1 vote by issuing a ruling that orders all civil registers of the country to perform same-sex marriages and convert any existing civil unions into marriages if such a couple desires.[11][12][13][16][43] Joaquim Barbosa, president of the Council of Justice and the highest court of constitutional law in Brazil - the Supreme Federal Court - said in the decision that notaries cannot continue to refuse to "perform a civil wedding or the conversion of a stable civil union into a marriage between persons of the same sex."[7]

On December 16, 2003, Brazil announced that it would recognize legal same-sex unions performed abroad for immigration purposes. Couples who are married in other countries can use their union certificate to apply for immigration benefits to Brazil. It was the first legal action to the recognition of same-sex couples.[44][45]

According to the Grupo Gay da Bahia (Gay Group of Bahia; GGB), the Instituto Nacional de Segurança Social (National Institute of Social Security; INSS) recognizes stable unions as a means for sharing inheritance, receiving a pension, and other rights similar to marriage.[46]

Many Brazilian cities have also instituted a Register of Homosexual Stable Union.[47] In 2009, one of the offices of the city of São Paulo recorded 202 same-sex stable unions. Stable unions grant many legal rights, such as the right to be recognized as a couple in legal issues, common ownership of property acquired jointly, including transmittance and inheritance, recognition of the partner as a dependent at the National Institute of Social Security, on health plans and with insurers. Also included is the right to transfer the bank account of one partner to another in case of death or illness of the holder.[48]

De facto unions may be registered at a civil law notary throughout the country (there are specific ordinances about it in Rio Grande do Sul, Roraima and Piauí, but the right is federal and registration is possible in others places too).[49]

Prior to the nationwide legalisation of same-sex marriage, several binational same-sex couples won the right to live permanently in Brazil. One such case is the case of a binational couple who was forced to leave Brazil and move to Chicago so they could live together. U.S. citizen Chris Bohlander won the right to live permanently in Brazil with his partner Zemir Magalhães. The couple left Chicago three years prior to live together in Goiânia. A Brazilian judge allowed Bohlander to obtain a permanent residency visa, which is normally only given to the foreign spouse of a Brazilian, based on their civil union, which was recognized by a Goiás judge in 2008. In Brazil, the couple's victory was seen as important especially because the ruling is based on the fundamental rights and protections guaranteed under the country's Constitution.[50]

Same-sex adoption is legal in Brazil, because Brazilian laws do not specifically prohibit it. Consequently, several judges have given favorable rulings for adoptions by same-sex couples.[51]

In 2010, in a landmark trial, the 4th Class of the Superior Court of Justice of Brazil (STJ) acknowledged, unanimously, that same-sex couples have the right to adopt children. The court, consisting of five judges, discussed a case of two women who had been given the right to adopt by the Federal Court of Rio Grande do Sul. The State Public Prosecutor, however, appealed to the STJ. The court denied the public prosecutor's request, saying that for such cases, the child's will must be respected. "This trial is historic because it gives to human dignity, the dignity of minors and the two women", said the reporter, Luis Felipe Solomon. "We affirm that this decision is an orientation that in cases like that, you should always serve the interests of the child, that is being adopted", the minister João Otávio de Noronha said.[52] The Superior Court of Justice decision creates a legal precedent that allows same-sex couples to apply to adopt and foster children.

For attorney Adriana Galvão, counsellor of the "Ordem dos Advogados do Brasil" (Bar Association of Brazil), and part of the study group of the institution about sexual diversity, the opinion demonstrates a legal and also social advancement. "It was a new interpretation. The Supreme Court found that it can break paradigms and demonstrated that the judiciary is trying to open their vision to our social reality in order to guarantee the rights of people," she said.[53]

In 2010, Minister Marco Aurélio Mello, of the Supremo Tribunal Federal (Supreme Federal Court of Brazil), ruled in favor of a binational English-Brazilian same-sex couple in the state of Paraná, allowing the couple to adopt any child, regardless of the age or sex of the child. The decision of the Supreme Federal Court opens the way for other same-sex couples to receive the same rights in the country.[54]

The states of Brazil are prohibited from creating discriminatory laws, according to the national Constitution. While the Constitution prohibits discrimination on a variety of characteristics, such as "origin, race, sex, colour [and] age", sexual orientation is not explicitly mentioned. The Constitution does forbid "any other forms of discrimination".[55]

Traditional images of Latin America "machismo" and the resulting homophobia are changing now that individual rights, including one's right in accordance with one's sexual orientation, enjoy the protection of the law. Brazil adopted a liberal Constitution in 1988, and continues to provide more protections for all of its citizens. Shortly after electing Luiz Inácio Lula da Silva as Brazil's president, various states took serious measures ensuring that no one would be discriminated against because of their sexual orientation. As of 2003, discrimination on the basis of sexual orientation was prohibited in 73 municipal statutes. Provisions were later enacted in the laws and regulations of the states of Acre (2017),[56] Alagoas (2001/13),[57][58] Amapá (2009),[59] Amazonas (2006),[60] Bahia (2007/14),[61][62] the Brazilian Federal District (1997/17),[63][64][65][66] Ceará (2009/14),[67][68] Espírito Santo (2012/16),[69][70] Goiás (2008),[71] Mato Grosso (1989/17),[72] Mato Grosso do Sul (2005),[64][73] Maranhão (2006),[74] Minas Gerais (2002),[75] Pará (2007),[76] Paraíba (2003/17),[64][77] Paraná (2013),[78] Pernambuco (2012/13),[79][80] Piauí (2004/17),[81][82] Rio de Janeiro (2000/10),[64][83] Rio Grande do Norte (2007),[84] Rio Grande do Sul (2002/16),[85][86] Rondônia (2018),[87] Roraima (2013),[88] Santa Catarina (2002),[89][90] São Paulo (2001),[64] Sergipe (1989), and Tocantins (2013).[91][73][92][93][94] These policies vary by state. Some states (Alagoas, Bahia,[95] the Brazilian Federal District, Ceará, Espírito Santo, Mato Grosso, Pará, Santa Catarina, and Sergipe) list sexual orientation among the non-discrimination grounds in their state constitutions. Several states have also established public taskforces and commissions to investigate reports of discrimination. Legal prohibitions of discrimination against transgender people varies from state to state. Many states enacted protections for gender identity at the same time as for sexual orientation, while others did so some years later. As of 2019, Amapá, Minas Gerais, Pará, Santa Catarina and Sergipe do not address discrimination against transgender people.

... the law shall include penalties of an administrative, economic and financial nature for entities that discriminate based on national origin, race, color, sex, age, marital status, religious belief, sexual orientation or political or philosophical beliefs, or any other status, regardless of the judicial measures provided for by law.[lower-alpha 1]

— Constitution of the State of Santa Catarina (Constituição do Estado de Santa Catarina).[89]

The State and Municipalities shall ensure, within their territory and within the limits of their competence, the fullness and guarantee of the rights and social principles provided for in the Federal Constitution and in the international treaties in force in [Brazil], including those concerning urban, rural workers and public servants, as well as the prohibition of discrimination based on religious belief or sexual orientation.[lower-alpha 2]

— Constitution of the State of Espírito Santo (Constituição do Estado do Espírito Santo).[69]

No one shall be discriminated against or harmed by reason of birth, age, ethnicity, race, color, sex, genetic characteristics, marital status, rural or urban work, religion, political or philosophical beliefs, sexual orientation, physical, immunological, sensory or mental disability, in accordance with the Federal Constitution.[lower-alpha 3]

— Organic Law of the Federal District (Lei Orgânica do Distrito Federal)

On November 30, 2000, the City Council of Niterói, in the state of Rio de Janeiro, passed an ordinance prohibiting discrimination based on sexual orientation in public places and institutions as well as in businesses. Many Brazilian cities and states have anti-discriminatory legislation that explicitly includes sexual orientation. Some of them provide specific sanctions and penalties for those who engage in discrimination.[96]

In 2007, the Ministry of Labour and Employment issued Executive Order (Portaria) No. 41/2007, which prohibits employers from requesting documents or information related to an employee's sexuality.[97]

A 2008 survey found that 70% of Brazilians were in favour of banning discrimination against LGBT people. Divided by religion, 54% of Evangelicals supported banning such discrimination, while 70% of Catholics and 79% of atheists also expressed support. Those aged between 16 and 30 were also more likely to support legislation to ban LGBT discrimination.[98]

As of 2019, a federal anti-discrimination law is pending approval on the Brazilian Senate.[99] The Constitution does not have any specific laws on discrimination based on sexual orientation, but it does have a generic anti-discrimination article that can be considered to include such cases. This fact is constantly used by the opposition of the anti-discrimination law to show that there is no need for specific laws. The defenders of the new law, however, argue that without clear designation, this will still be considered somewhat of a lesser crime. Some conservative Catholic and Protestant senators argue that the law would be an aggression on religious freedom granted by the Constitution. Senator Fátima Cleide (PT–RO) said that the law should be approved because "the country has the tragic mark that a homosexual is murdered every two days." Former Evangelical priest and Senator Marcelo Crivella (PRB–RJ) criticized the text, saying homosexuals will receive a protection that "should have been given to women, the elderly and children."[100] In March 2018, the Senate Constitution and Justice Commission approved the federal anti-discrimination law. The bill would need to be approved by the full Senate and Chamber of Deputies before becoming law.[101]

In February 2019, the Federal Supreme Court (Supremo Tribunal Federal) began proceedings to criminalize homophobia and transphobia.[102] The court handed down its ruling on May 23, criminalizing homophobia and transphobia under the country's anti-racism law (Portuguese: Lei do Crime Racial - Lei n.º 7.716/1989). Six of the Supreme Court's 11 judges voted in favor of the measure, while the five other judges were granted more time to make their decision. Eventually, on 13 June, the Supreme Court issued its final ruling, in an 8–3 vote.[8][103] Judge Luiz Fux described homophobic crimes as "alarming" and an "epidemic".[104]

Brazilian travestis

While the term transgender as used in the United States and Europe has come to encompass all gender-variant individuals, including female-to-male transsexuals, drag queens and kings, and intersex individuals, in Brazil the social phenomenon of "transgênero" largely consists of individuals who were assigned male at birth and identify as women. Transgender women in Brazil fall into two categories: "travestis" and transsexuals, although for Brazilians the two terms are interchangeable. To the extent that the latter insist on distinguishing themselves from transvestites, it is because transsexuals consider that they were born into the wrong body, whereas transvestites do not experience as deeply internal conflicts in relation to their male bodies.[108]

The formal labor market is largely closed to transgender people. An extremely small minority of transvestites have university educations or professional qualifications. With few exceptions, the only professions open to them are nursing, domestic service, hairdressing, gay entertainment, and prostitution. In some cases, even those who work as hairdressers, gay nightclub artists and domestic servants also double as sex workers. In the central, north and northeastern regions of Brazil, transgender people from extremely poor families sometimes begin working as prostitutes as early as 12 years of age, especially if they have been expelled from home by their families.[109]

In the south and southeastern regions and in the major capitals, such as São Paulo and Rio de Janeiro, it is common to find transvestites as young as 16 or 17 working in the streets. Despite being included in Brazil's acronym in the struggle for LGBT rights, transgender people receive little outreach from the more mainstream gay and lesbian groups. There are, however, associations of transgender people in several Brazilian states and cities. One program in Rio de Janeiro focuses on the reintegration of transvestites into society through training and employment opportunities.[108]

Brazil's public health system provides free sex reassignment surgery. Federal prosecutors from the state of Rio Grande do Sul had argued that sex reassignment surgery is covered under a constitutional clause guaranteeing medical care as a basic right. In 2007, the 4th Regional Federal Court agreed, saying in its ruling that "from the biomedical perspective, transsexuality can be described as a sexual identity disturbance where individuals need to change their sexual designation or face serious consequences in their lives, including intense suffering, mutilation and suicide." The Health Ministry said it would be up to local health officials to decide who qualifies for the surgery and what priority it will be given compared with other operations within the public health system. Patients must be at least 21 years old and diagnosed as transsexuals with no other personality disorders and must undergo a psychological evaluation for at least two years, the ministry said. Gay activists applauded the decision. So far, the measure has not prompted any opposition. Brazil's public health system offers free health care to all Brazilians, including a variety of surgeries and free AIDS medication. But long lines and poorly equipped facilities mean that those who can afford it usually choose to pay for private hospitals and clinics. The Health Ministry said that since 2000 through 2007, about 250 sex reassignment surgeries had been performed at three university hospitals.[110]

There is no law forbidding LGBT people from serving in the Brazilian Armed Forces. Sexual orientation cannot be an obstacle for entry into the police force or the military in Brazil. All sexual acts are disallowed between members of the forces, be it heterosexual or homosexual.[112]

The Constitution of Brazil prohibits any form of discrimination in the country. The Brazilian Armed Forces do not permit desertion, sexual acts or congeners in the military, whether heterosexual or homosexual. They claim that it is not a homophobic rule, but a rule of discipline that also includes the opposite sex.[113]

In 2008, during a disappearance of a military gay couple, the Ministry of Defence of Brazil spoke: the sergeant is to be questioned about alleged desertion from the military and there is no question of discrimination." The two soldiers said they had been in a stable relationship for ten years in the Brazilian military.[114] In 2012, was published an official note by Brazilian Armed Forces: "The Brazilian army does not discriminate against (...) sexual orientation (...).[115]

Following the Supreme Federal Tribunal decision in favor of civil unions, Defense Minister Nelson Jobim guaranteed the Ministry's compliance with the decision and mentioned that spousal benefits can be accorded to same-sex spouses of military personnel.[116][117][118]

According to a survey conducted by the Institute of Applied Economic Research (IPEA) in 2012, 63.7% of Brazilians supported the entry of LGBT people in the Brazilian Armed Forces.[119]

Conversion therapy has been forbidden by the Federal Psychology Council since 1999.[120] In September 2017, a federal judge in Brasília approved the use of conversion therapy by a psychologist to “cure” people of homosexuality, overruling the 1999 decision.[121] However, in December 2017, the same judge changed his decision, keeping the “treatment” banned.[122] In January 2018, the Federal Psychology Council established norms of performance for psychologists in relation to transsexual and transvestite people, also banning any conversion therapy.[123]

Prior to 2020, under Ministry of Health guidelines, gay and bisexual men were only allowed to donate blood after 12 months without same-sex sexual activity.

However, in May 2020, during the COVID-19 pandemic, the Federal Supreme Court ("Supremo Tribunal Federal") declared the limitation unconstitutional and struck out the restrictions. Consequently, Brazil became one of the first Latin American countries to permit gay and bisexual men to donate blood under terms equal to heterosexual men.[124][125]

In 2010, a survey conducted by Rio de Janeiro State University and University of Campinas revealed that by age of 18, 95% of homosexual youth in Brazil had already revealed their homosexuality, with many acknowledging it by the time they were 16. For the 1980s generation, homosexuality was usually revealed after they were 21 years old. Prejudice had also decreased according to data from a survey of Ibope. The same survey found that 60% of Brazilians considered homosexuality as natural.[126]

In 2009, a survey conducted by University of São Paulo in ten state capitals, showed that the Brazilian gay male population was of 7.8% and the bisexual male population was 2.6% (total of 10.4% of the total male population). The lesbian population was of 4.9% and the bisexual women another 1.4% (total of 6.3% of the female population).[20]

The male population of the city of Rio de Janeiro was 19.3% of gays and bisexual males. And the female population of the city of Manaus had 10.2% of lesbians and women bisexuals.[127]

Jean Wyllys, an openly gay former congressman, and one of the leading advocates of the gay cause in Brazil[141]

Former President Lula and the LGBT flag

There are many pro-LGBT political parties in Brazil; the most influential are the Socialism and Liberty Party, the Workers' Party and the Communist Party of Brazil. The most influential pro-LGBT politicians in Brazil are Marta Suplicy Smith, Eduardo Suplicy and Jean Wyllys. During the 2010 presidential elections in Brazil, all five presidential candidates were favorable to same-sex civil unions, including the elected President Dilma Rousseff.[142][143]

In 2010, there were 190 political candidates who signed the Brazilian Association of Gays, Lesbians, Bisexuals and Transsexuals's "Declaration of Commitment". Those elected included 1 governor, 1 senator, 17 congressmen/congresswomen and 25 state representatives.[144]

The Brazilian executive power has guaranteed many rights to LGBT Brazilians, such as the same social security pension benefits that heterosexual couples receive;[145] the creation of the federal LGBT Council;[146] prison visitation by same-sex couples;[147] same income tax benefits that heterosexual couples receive;[148] federal government recognition of same-sex marriages or same-sex civil unions for immigration purposes;[149] health benefits for same-sex couples and mandatory health plans in the country;[150] and LGBT people have a special place in Brazilian prisons, separate from other prisoners. Transsexuals have the right to be called by social name and not by birth name and be forwarded to women's prisons. LGBT people in prisons also have the right to choose male or female clothing.[151]

One of the candidates for the City Council of Salvador, Bahia, the third largest city in Brazil, was Leo Kret (Republican Party (PR-BA)), a transvestite club dancer who was the most voted for of the candidates. When she took office, she defied the dress code norms insisting that her wardrobe would be strictly feminine and insisted on using the women's restroom.[152] Leo Kret received 12,861 votes in the city in the municipal elections of 2008.[153] On election day, she said that she will defend LGBT rights.[154] She has aspirations to become the President of Brazil one day.[155]

Moacyr Sélia, a transvestite hairdresser, sought reelection as a Nova Venécia councilmember, in the north of the state of Espírito Santo, representing the Republican Party. She was already the president of the Chamber of Parliament in two occasions.[156]

President Jair Bolsonaro, elected to the Brazilian presidency in October 2018, has drawn controversy for his homophobic rhetoric. As "a self-declared homophobe", Bolsonaro has said he would prefer a dead son than a gay one.[157] On January 2, 2019, just hours after his inauguration, he removed concerns regarding the LGBT community from being considered by the Human Rights Ministry and named no other federal agency to consider such issues.[158]

Following the 2018 Brazilian general election, Fabiano Contarato was elected as the first openly gay federal senator and Érica Malunguinho as the first trans woman representative.[41] On February 1, 2019, David Miranda, a black gay representative, replaced Jean Wyllys, as Wyllys announced in January 2019 that he had left the country due to death threats.[42]

LGBT plan and conference

An anti-discrimination protest during the 2008 LGBT conference

Brazil is a secular state, in which there exists a separation of church and state. The country's most followed religion is Catholicism.[163]

The Catholic Church teaches that homosexual acts are disordered and immoral, but some more progressive bishops in Brazil have a hard time divulging it publicly.[164] Many Protestant churches hold the same basic position as the Catholic Church.[164] In mainline liberal Protestant denominations, there is an effort to avoid homophobia.[165]

And while most of the conservative churches keep silent on the issue, Brazil has seen the growth of gay-friendly churches such as the Metropolitan Community Church, a denomination which originated in the United States. Apart from religious people, moral disapproval of homosexuality has been rare, because of the social pressures condemning prejudice and homophobia.

Among evangelicals, there are some campaigns to reach out to homosexual men and women. Movimento pela Sexualidade Sadia (Social Movement for a Healthy Sexuality), an evangelical group headed by an ex-homosexual, leads efforts to evangelize in gay parades, talking about Christianity to participants and delivering leaflets featuring the testimonials of "ex-gays" and "ex-lesbians".[164]

There may be a religious factor in Brazilian homosexuality. A minority of the Brazilian population adheres to Candomblé and other Afro-Brazilian religions (similar to Santería), where homosexuality is commonly accepted. For a comparison, there are some 19,000 recognized Catholic parishes in Brazil. Informal Candomblé temples are supposed to number some 12,000 in Rio de Janeiro alone. In Candomblé, many priests and priestesses are homosexual. Luiz Mott, the leader of the gay movement in Brazil, is a firm adherent of Candomblé. Many famous Brazilians turn to Afro-Brazilian religions in search of miracles to solve personal or family problems. Even former President Fernando Henrique Cardoso, though an atheist, had sympathy for and sometimes visited Candomblé rituals.[166] Another minority of the Brazilian LGBT population adheres to alternative pagan groups, like Wicca, where homosexuality is also accepted.

In June 2018, the General Synod of Anglican Episcopal Church of Brazil voted to change its marriage canon to allow same-sex couples to get married.[167]

• Same-sex marriage in Brazil
• Human rights in Brazil
• Beyond Carnival by James N. Green.
• João W. Nery

General:

• LGBT rights in the Americas

Wikimedia Commons has media related to LGBT rights in Brazil.

• Legal Information, LGBT Rights, Brazil (in Portuguese)
• Official website of Grupo Gay da Bahia. (in Portuguese)
• Official website of Associação Brasileira de Gays, Lésbicas, Bissexuais, Travestis, Transexuais e Intersexos. (in Portuguese)