By Vitor Antony Ferrari and Ivan Kubala 

Over the years, diversity has been gaining more and more space in the guardianships related to Family and Succession Law, an institute that still preserves, unjustifiably, a good dose of conservatism (it is said to be discrimination).

As we know, for a long time the family was identified only as the union between a man and a woman, and it was also true that the male figure was granted more rights than the female figure.

With the promulgation of the Magna Carta, the topic gained new directions and family composition took on a broader character, admitting the plurality of the family nucleus.

In this sense, homosexual families, or rather, LGBTI families in the concept of the Illustrious Dr. Maria Berenice Dias, President of the Special Commission for Sexual Diversity and Gender of the Federal Council of the OAB, deserve and must be identified as a family entity deserving of legal and jurisdictional protection, especially because they are composed of individuals whose fundamental rights are guaranteed by the Federal Constitution.[1]. Thus, both the individual and their social structure deserve legal protection.

It turns out that moral, ethical and religious precepts have always been considered obstacles to the advancement of legislation on the subject, which has led legal practitioners, faced with the omission of legislators, to use the Judiciary to break the outdated standards imposed by society, since despite the gaps in the law, the Judge cannot exempt himself from assessing the matter, as established by the Code of Civil Procedure.[2].

Therefore, within the scope of Family and Succession Law, same-sex unions were initially recognized as family entities.[3], with the same rights and duties as a stable union, the conversion of same-sex unions into marriage was later achieved[4] and, finally, the celebration of civil marriage was admitted[5], culminating in the approval of Resolution No. 175/2013, which prohibits the refusal to authorize, celebrate a civil marriage or convert a stable union into a marriage between people of the same sex, the target of a Direct Action of Unconstitutionality[6]

It is true that case law has made good progress on the subject and, in addition, some standards have also introduced mechanisms to protect diversity, such as the Maria da Penha Law, the Statute for Persons with Disabilities and the Youth Statute.

Furthermore, the Statute of Sexual and Gender Diversity (PLS 134/2018) is pending approval, which establishes that homosexual families will be guaranteed all rights related to Family and Succession Law.

However, in this scenario, the role of the legal operator is essential to guide and defend the interests of people who, in some way, identify with diversity, so that they are assured all the rights inherent to the matter, because above all, everyone is equal before the law and their differences deserve respect and protection from the State.

[1] all are equal before the law, without distinction of any nature (art. 5)

[2]  Art. 140. The judge shall not be exempt from making a decision on the grounds of a gap or obscurity in the legal system.

[3] STF, ADI 4,277 and ADPF 132, Rel. Min. Ayres Britto, j. 05/05/2011.

[4] TJRS, AC 70048452643, 8th Civil Chamber, rapporteur Ricardo Moreira Lins Pastl, j. 27/09/2012.

[5] STJ, REsp 1.183.378-RS, 4th T., Rapporteur Min. Luis Felipe Salomão, j. 10/25/2011.

[6] STF, ADI 4,966, Rel. Min. Gilmar Mendes.