CONSTITUTIONALITY CONTROL AND ITS FUNCTION OF EQUALING HOMOPHOBIA AND TRANSPHOBIA WITH THE CRIME OF RACISM

Abstract

The present study arises from the growing judicialization of the most diverse issues, whether political, social or moral. The LGBTQIA+ population is on the margins of society, being a constant victim of extreme and constant violations, therefore, given the absence of security policies for the group and the low implementation of fundamental principles, the discussion arises regarding legislative omission when drafting stricter security laws. protection for this community. The ascendant protagonism of the Judiciary Power becomes frequent in the face of the inertia of the Legislative Power and, with the promulgation of the Constitution of the Federative Republic of Brazil in 1988, there was a strengthening of constitutional jurisdiction to make effective principles and foundations that may be neglected by the Public Power . Constitutionality Control thus appears as a measure to contain and highlight constitutional disorders, while judicial activism is associated with a more intense and broader participation of the Judiciary. This study seeks to highlight the role of constitutionality control in equating homophobia with the crime of racism. The STF decision that criminalized homophobia and transphobia in Brazil was an important milestone in the fight for LGBTQIA+ rights. The decision recognized that homophobia and transphobia are forms of discrimination and violence that violate human dignity. The decision was the result of an ADO proposed by the PPS, which questioned the Legislative Branch's failure to regulate article 5, item XLI, of the Federal Constitution. The STF understood that the Legislature's omission was unconstitutional and, therefore, criminalized homophobia and transphobia. The arguments against the criminalization of homophobia and transphobia are relevant and deserve to be considered. Finally, the STF's decision was an important step forward in the fight for LGBTQIA+ rights, and it is important that the Legislative Branch approves laws and public policies that promote inclusion and social equity for this population.