Put: Vitor Antony Ferrari and Ivan Kubala

Despite recent advances and achievements, the fact is that the right to equal marriage has not been introduced into Brazilian legislation, and, despite being widely and correctly practiced, it has been based on a historical and correct understanding of the Judiciary. This means that the Civil Code that determines the rights and duties of people, assets and their relationships in the private sphere, based on the National Constitution, has not been properly updated to reflect reality, and does not include LGBTQI+ inclusion.

As mentioned, in 2011, the STF (Federal Supreme Court) in a historic decision recognized that same-sex couples could form a family, but without, however, ruling on the right to same-sex marriage. This is because art. 1,514 of the Civil Code maintains the understanding that the act of marriage would occur with the manifestation of will between a man and a woman, only.

Despite this, the decision in question was of utmost importance, as from then on people of the same sex gained the right to live, in principle, in a stable union.

However, even with the STF decision recognizing the right in question, there were still difficulties for those interested in formalizing the relationship, as some notary offices denied legitimate recognition of the regime, because they alleged the lack of official regulation or legal change.

Only after 02 (two) years was the issue expressly defined, since in 2013, the CNJ (National Council of Justice), through resolution 175, published on May 14 of that year, prohibited any obstacles to the recognition of marriage and stable unions between people of the same sex.

Therefore, due to this resolution, there can no longer be any talk of divergence between heterosexual and homosexual marriages. However, it is not uncommon for there to be a refusal to formalize the acts or to apply the established rules, but the issue must be ensured by the Judiciary, so that interested parties can and should bring the case to the attention of the competent supervising judge, so that express compliance with the measure can be determined.

In this way, homosexual couples gained the right to marry, and also began to enjoy rights that were previously exclusive to heterosexual couples. Thus, with the implementation of the resolution, everyone, without exception, has the possibility of adapting the property regime of the union, sharing assets, participating in the inheritance of part of the spouse's assets in the event of death, health insurance and requesting alimony, among other rights that are guaranteed to them.

This significant advance for our society was accompanied by another very important decision issued in June 2019, when the STF decided to classify homophobia and transphobia as crimes of racism until the National Congress passed a law on the subject. At the time, the STF plenary understood that there was an omission on the part of Congress for not enacting a law that criminalized acts of homophobia and transphobia.

It is worth noting that homophobic crimes do not only consist of homicides, but also physical aggression, verbal aggression or silent attitudes of discrimination motivated by sexual orientation.

Thus, as rightly highlighted by Antonio Baptista Gonçalves, “we have the criminalization of homophobia and transphobia when, due to the decision, the sexual issue is also added, with the clear possibility of applying imprisonment of one to three years, in addition to a fine”.

In Brazil, one of the countries where violence against the LGBTI+ community still haunts the population, these decisions, despite the slowness of the Judiciary, are extremely relevant in confronting prejudice.

However, there is still a long way to go, as the country lacks laws that regulate the rights of the LGBTI+ population. For now, it is up to the legal community, together with the population, to fight for rights to be recognized for everyone, without distinction of any kind.