LGBT rights in Brazil

Lesbian, gay, bisexual, and transgender (LGBT) people in Brazil enjoy most of the same legal protections available to non-LGBT people.

On May 5, 2011, the Supreme Federal Court has voted overwhelmingly in favour of allowing same-sex couples the same 112 legal rights as married couples. The decision was approved by 10-0 with one abstention. One justice abstained because he had spoken publicly in favor of same-sex unions when he was attorney general. The ruling will give same-sex couples in stable partnerships the same financial and social rights enjoyed by those in opposite-sex relationships.

On June 27, 2011, first same-sex civil union was converted into a same-sex marriage in Brazil. A Brazilian judge in Jacareí, São Paulo had converted a civil union into a same-sex marriage, a first in the nation. After this case, other civil unions were convert into a full marriage.

The list of various LGBT rights in Brazil has expanded since the end of the military dictatorship in 1985, and the creation of the new Constitution of Brazil of 1988. In 2009, a survey conducted in 10 Brazilian cities found that 7.8% of men identified as gay with bisexual males accounting for another 2.6% of the total population (for a total of 10.4%). The Brazilian lesbian population was 4.9% of females with bisexual women reaching 1.4% (for a total of 6.3%). There are no nation-wide statistics.

According to the Guinness World Records, the São Paulo Gay Pride Parade is the world's largest LGBT Pride celebration, with 4 million people in 2009. Brazil had 60,002 same-sex couples in the same home, according to the Brazilian Census of 2010 (IBGE). The South American country has 300 active LGBT organizations.

Population

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 has also decreased according to data from a survey of Ibope. Currently, 60% of Brazilians consider homosexuality as "natural."

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

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.

Anti-discrimination laws

The States of Brazil are prohibited to create discriminatory laws according to the national constitution. This has contributed to the enactment of same-sex adoption, civil unions, gender change, and others, whereas the anti-discrimination laws are encouraged according to the Brazilian Constitution, in constitutions of State and in City laws.

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 law. Brazil, South America's largest country, 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 will be discriminated against because of his or her sexual orientation. As of 2003, discrimination on the basis of sexual orientation was prohibited in 73 municipal statutes. Provisions were enacted in the laws of the states of Alagoas, Amapá, Bahia, Brazilian Federal District, Ceará, Espírito Santo, Goiás, Mato Grosso, Mato Grosso do Sul, Maranhão, Minas Gerais, Pará, Paraíba, Paraná, Pernambuco, Piauí, Rio de Janeiro, Rio Grande do Norte, Rio Grande do Sul, Santa Catarina, São Paulo, Sergipe, Tocantins. The latter has promulgated a new law, signed by its governor, that will put high fines on businesses discriminating against gays, lesbians, bisexuals and transgendered people. The new law has also eliminated many loopholes of earlier laws: It says:

"Any aggressive or discriminatory act against any homosexual, bisexual or transgender citizen will be punished accordingly with the law." The punishments are cumulative: A first offense will bring a warning, but any subsequent action will be heavily fined. Fines vary from R$ 300 to R$ 1000, a considerable sum in Brazil. In the case of further incidents, the offender will face the permanent seizure of his operating license. The law goes into effect immediately. Santa Catarina's bold step into social equality was met with enthusiasm by same-sex activists in Santa Catarina ("Hooray!", read the title of Glssite's newsletter commemorating the law's signing) who worked long and hard to get it passed. The first Brazilian state to create such laws in 1997, which then generated much controversy, was Bahia, the northeastern home of the Luiz Mott-led Grupo Gay da Bahia, arguably the largest and best-known gay activist group in Brazil.

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. The measure is currently on the desk of Niterói's mayor, who must approve it before it is enacted. IGLHRC and Cidadania Gay, a local LGBT organization, sent letters to the mayor and city councilors in support of the measure.

As of 2007, a federal anti-discrimination law is currently pending approval on the Brazilian Senate. The federal 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 each two days." Former Evangelical priest and senator Marcelo Crivella (PRB–RJ) criticizes the text, saying homosexuals will receive a protection that "should have been given to women, the elderly and children."

Religion and LGBT rights

Brazil is a secular state, in which there exists a separation of church and state. The country does not have an official religion. By contrast, Argentina, a neighboring country, has an official religion, the Catholic Church.

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. Many Protestant churches hold the same basic position as the Catholic Church, but most of them do not proclaim their views publicly. In mainline liberal Protestant denominations, there is an effort to avoid Biblical condemnation of homosexuality.

And while most of the conservative churches keep silent on the issue, Brazil has seen the growth of gay evangelical churches such as the Metropolitan Community Church, a gay denomination American church. Apart from the 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.

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 common. 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 homosexual 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 a Marxist and an atheist, had sympathy for and sometimes visited Candomblé rituals. Another minority of the Brazilian LGBT population adheres to alternative pagan groups, like Wicca, where homosexuality is also accepted.

Adoption by same-sex couples

Same-sex adoption in Brazil occurred and is occurring because Brazilian laws do not specifically prohibit, and can not ban them as such laws would be deemed unconstitutional. Consequently, several judges have given favorable rulings for adoptions by same-sex couples.

In 2010, in a landmark trial, the 4th Class of the Superior Court of Justice of Brazil (STJ) acknowledged, unanimously, that homosexual couples have the right to adopt children. The court, consisting of five judges discussed a case of two women who had recognized the right of adoption 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, 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 being is adopted", the minister João Otávio de Noronha said. The Superior Court of Justice decision creates a legal precedent that would allow gay couples to abandon the practice currently used for individual adoption to avoid legal problems.

For attorney Adriana Galvão, counselor 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.

In 2010, minister Marco Aurélio Mello, of Supremo Tribunal Federal (STF) (Supreme Federal Court of Brazil), ruled in favor of a binational same-sex couple formed by an English and a Brazilian, in the State of Paraná. Allowing the couple to adopt any child, regardless of age or sex of the child. The decision of the Supreme Federal Court opens the way for other same-sex couples get the same right in the country.

Same-sex couple rights

A bill was proposed in National Congress of Brazil in 1995 to change federal law and allow the recognition of same-sex unions but it faced strong opposition and, as of January 2009, was not voted on. Since the late 1990s however, many concessions have been granted to homosexual couples. Same-sex couples were determined to be de facto partners by the Superior Justice Tribunal in 2006. This gave some rights to same-sex couples through stable unions.

Many independent judicial decisions in Brazil since 1998 have recognized same-sex partnerships in this category under common law and granted various rights to the individuals concerned. There is no actual definition or consensus on what constitutes a stable union. In the State of Rio de Janeiro, the partners of government employees receive the same benefits as married couples. In the State of Rio Grande do Sul in Southern Brazil, judges have determined that homosexual relationships should also be legally recognised. All judges and justices of the peace are now bound to approve civil unions knoian as União Civil "between persons of sound mind and independent sexual orientation" in the state.

It is possible to identify three distinct phases in the development of Brazilian same-sex union jurisprudence, each one establishing the basis for the achievement of new rights. The first phase began in 1989 with the first decisions entitling same-sex couples to legal protection through the classification of same-sex unions as de facto partnerships. Originally created to regulate equal division of property among participants of non-registered business partnerships, this institution guaranteed access to property rights to domestic cohabitants upon evidence of direct or indirect contribution to the construction of the common property. The Brazilian courts have resorted to this institution to solve property rights problems arising from domestic cohabitation since the first decades of the twentieth century. By affirming that same-sex partners have legal obligations towards each other, the Brazilian courts classified same-sex unions as de facto partnerships, a measure that conferred access to property rights on same-sex couples.

The Brazilian courts unanimously agree that same-sex unions can be classified as de facto partnerships because this institution guarantees same-sex couples access to a category of spousal rights without deeming them to be spouses. Representing an important turn in the history of Brazilian same-sex union jurisprudence, several courts began to recognize same-sex couples as family members as early as 1996, a process that granted a new degree of legal protection to many same-sex partners. The struggle for the inclusion of same-sex partners as beneficiaries of welfare benefits shifted the focus of Brazilian same-sex union jurisprudence from access to property rights to the question of equal legal treatment of same-sex and opposite-sex unions.

If the decisions classifying same-sex unions as de facto partnerships guaranteed a right to equal division of property, the decisions granting welfare benefits to same-sex partners increased the degree of legal protection to same-sex couples by recognizing them as family entities. Arguing that Brazilian society must accept the fact that same-sex couples form relationships that have the same characteristics as opposite-sex unions, several Brazilian courts have extended welfare benefits to gay and lesbian federal governmental employees on the grounds that the constitutional principles of formal and material equality require equal legal treatment of same-sex and opposite-sex couples. Anticipating the developments of the next period of Brazilian same-sex union jurisprudence, some courts began to refer to same-sex de facto partnership as a legal status comparable to those regulating opposite-sex unions.

The doctrine and jurisprudence define stable union as a public and stable intimate relationship between a man and a woman who, living together or in separate houses, intend to constitute a family without the formality of civil marriage. Several factors have compelled the Brazilian courts to classify same-sex unions as stable unions: the abandonment of the traditional legal formalism that has long characterized the Brazilian judicial system, the reference to progressive theories of legal hermeneutics that aims to achieve greater social justice, the classification of homosexuality as a prohibited ground for discrimination, the adoption of a functionalist notion of family comprehended as a space of intimacy rather than a mere unity of biological reproduction, and the convergence of the principles that regulate domestic cohabitation jurisprudence with the notions of formal and material equality. Judicial recognition of same-sex unions as stable unions has granted same-sex partners access to many categories of spousal rights such as property rights, social security rights, inheritance rights, partner benefits, spousal support, joint adoption, and the right to permanent visas for foreign partners.

As social resistance to legal recognition of same-sex unions increases in many parts of the world, Brazilian same-sex union jurisprudence provides viable solutions for the problems surrounding legal recognition of same-sex unions. The Brazilian experience suggests that an incremental approach to this legal issue is an effective strategy to avoid the backlash that has followed judicial decisions legalizing same-sex marriage in other parts of the world. Gradual extension of spousal rights to same-sex couples has allowed Brazilian courts to maximize the possibility of granting full marital status to same-sex couples, a process that has contributed to the transformation of the social perception of same-sex unions.

The growing number of superior court decisions favoring same-sex couples in the last years suggests a possible unification of the jurisprudence to recognize same-sex unions as stable unions. A similar development resulted in the legal recognition of domestic cohabitation as a form of marital status in Brazil. Thus, this process may accelerate the enactment of legislation granting full equality to same-sex partners in Brazil.

Gay parades

The São Paulo Gay Pride Parade is one of the biggest events of its kind in the world, if not the biggest. It is also one of the major tourist events in São Paulo. The event has official support from the city government of São Paulo. The Parade happens yearly, usually in June. It is the beginning of Brazilian winter, when temperatures are lower, but rains are rare. The Parada do Orgulho GLBT de São Paulo (Parade of Pride of Gays, Lesbians, Bisexuals and Transgenders of São Paulo) has been organized since 1999, with the aims of bringing visibility to social-sexual categories and fomenting the creation of public policies for homossexuals, bissexuals, transvestites and transsexuals.

The main strategy is to occupy public spaces so as to make possible an effective exchange of experiences, elevate the self-esteem of homossexuals and sensibilise the society towards the tolerance with differences. Year after year, the conscientization and education towards respect to Multiculturalism and diversity has generated positive results. During the Parade, the homossexuals, unite and help build bridges and guarantee the plenitude of their rights.

The month of LGBT Pride in São Paulo was born from the experience of organizing parades and has added more activities such as The Cycle of Debates, the LGBT Cultural Fair, the Citizenship Award in Respect of Diversity, and the successful Gay Day, that happens on the Saturday before the main parade. The Cultural Fair has been part of the LGBT Pride Parade events in the city since 2001. APOGLBT has recognized political and cultural initiatives which value the citizenship of gays, lesbians, bisexuals, transvestites and transsexuals, every year since 2001.