QUEER RACISM: a critical analysis, in the light of the criminal constitutional principles and the Criminal Law's aim, of the Brazilian Federal Supreme Court's decision that recognized the discrimination against the LGBTQIAP+ group as a crime of racism

• Grant number: 22/09225-4
• Support Opportunities: Scholarships in Brazil - Master
• Effective date (Start): March 01, 2023
• Effective date (End): February 28, 2025
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Mariângela Gama de Magalhães Gomes
• Grantee: Lucas Henrique de Lucia Gaspar
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The present research aims to investigate, in the light of the criminal constitutional principles and the Criminal Law's aim, the Brazilian Federal Supreme Court's decision - issued in the ADO n. 26/DF and MI n. 4.733/DF - that recognized the discrimination against the LGBTQIAP+ group as a crime of racism. Afterall, by the means of those deliberations, the Brazilian Federal Supreme Court declared that the Legislative did not act in order to protect the LGBTQIAP+ population, since it had not created a law to criminalize the abovementioned discriminations, although it was ordered by the article 5, XLI, of the Brazilian Federal Constitution. Thus, to deal with this protective marginalisation, the Brazilian Federal Supreme Court violated the legality principle to adopt a broad interpretation of the crime of racism, in order to establish that, from now on, an act that is motivated by prejudice against the LGBTQIAP+ community is an act of racism. Hence, aiming to critically examine the Brazilian Federal Supreme Court's decision, the survey will draw on a study of the criminal constitutional principles, the Criminal Law's aim and the legal system's (in)effectiveness to cease the aforementioned discriminations against the LGBTQIAP+ group, in order to ascertain the benefits and the damaging of establishing a broad interpretation to the crime of racism and seeking to verify if there were any violations to the Brazilian Federal Constitution that were perpetrated by the Brazilian Federal Supreme Court through those deliberations.