Same-sex marriage under attack in Brazil


In Brazil, the conservatives in Congress attack the rights of the LGBTQIA+ community. Thiago Amparo explains why same-sex marriage, which has been possible since 2011, is a thorn in their side  and how this lines up with other attempts to challenge former decisions of the Supreme Court.

Bandeira LGBT no Congresso Nacional do Brasil

"Trying to extend the institution of marriage to homosexuals is a futile attempt to change reality through laws. No matter how much two homosexuals share a bed, property, or earnings, their relationship does not resemble a marriage in its essence because it lacks the bodily complementarity of the sexes – and its psychological reflection – and the consequent potential for life. Therefore, it lacks the specific social efficacy of marriage as the origin of the family." This excerpt - in all its prejudicial absurdity - is a literal translation of the written opinion of the congressman known as Pastor Eurico. He presented before the Brazilian National Congress a legislative bill to revoke, by legislative means, the judicial recognition of the same-sex unions in the country, in force in Brazil by a decision of the Supreme Court in 2011 - twelve years ago.

The conservative lawmaker was successful, at least in the first round. By a vote of 12 to 5, the Committee on Social Security, Social Assistance, Childhood, Adolescence, and Family of the Brazil's House of Representatives (lower house) approved a bill on October 10th, 2023 that prohibits the legal recognition of same-sex marriage and de facto unions as families. Several deputies voted in favor: André Ferreira (PL-PE), Chris Tonietto (PL-RJ), Clarissa Tércio (PP-PE), Cristiane Lopes (União-RO), Dr. Jaziel (PL-CE), Eli Borges (PL-TO), Filipe Martins (PL-TO), Messias Donato (Republicanos-ES), Pastor Eurico (PL-PE), Pastor Isidório (Avante-BA), Priscila Costa (PL-CE), Rogéria Santos (Republicanos-BA). On the other hand other deputies voted against the bill: Erika Hilton (PSOL-SP), Erika Kokay (PT-DF), Laura Carneiro (PSD-RJ), Pastor Henrique Vieira (PSOL-RJ), Tadeu Veneri (PT-PR). Yet, it is not a definitive prohibition. As a matter of law, same-sex marriage remains valid until the decision of the other legislative committees such as the human rights committee, and finally the plenary of the National Congress on the legislative bill. This might take several months, if ever put to a vote. Even though the Supreme Court on constitutional grounds can later challenge the law. Strategically, conservative lawmakers resurrected a 2007 legislative bill.

What the legislative bill aims to achieve and why it is problematic

The approved text does three things: first, it prohibits the state from imposing any restriction on how churches define religious marriage; second, it establishes that marriage between people of the same sex is invalid and, finally, it prevents any extensive interpretation of what marriage is. To put it clearly, the first point is simply disinformation: today there is no legal interference whatsoever in how churches perform marriage rituals; same-sex marriage, as any marriage, is a legal institution regulated and/or conducted by the state. Religion, therefore, is used as an excuse to discriminate. The second and third points are in direct contradiction of the 2011 ruling of the Supreme Court, which recognized same-sex unions. By 2013, the National Council of Justice (CNJ) issued Resolution No. 175/2013, directing all notary offices across the country to permit and conduct civil marriages for same-sex couples.

This specific case of the legislative bill on same sex marriage is one of many points of conflict and battling between the Federal Supreme Court (STF) and the National Congress. Other examples are legislative proposals that would limit individual decisions by ministers, criminalize the possession of drugs or establish a so called temporal framework (marco temporal) for the recognition of indigenous lands. In the case of the last one, the STF reached a majority of votes for the thesis that the temporal framework is unconstitutional, however, the Senate analyzes a bill that sets the time frame on October 5, 1988.

Tying the knot in times of elections

76,430 same-sex couples have gotten married in Brazil since 2013, in accordance with the data from the national association of notary offices. Only in the first year of the CNJ resolution, in 2013, 3,700 same-sex couples got married in the country. For 10 years, the LGBT population has been getting married in Brazil. On average, 7,600 celebrations are held per year in the country. It was already an acquired right and a pacified topic.

In 2022, this number quadrupled: 12,987 same-sex couples got married in Brazil last year. It is worth noting that the highest yearly rates of same-sex marriage occurred in 2018 (9,520) and in 2022, both years of presidential election in which one of the candidates was openly homophobic, namely the far-right ex-president Jair Bolsonaro. Although it is unlikely that the Brazilian Congress will eventually pass the prohibition of same-sex marriage - and even if it does, it will certainly be challenged in court - the mere preliminary approval of the matter by a legislative committee signals that thousands and thousands of same-sex couples are considered as second-class citizens by the lawmakers. The bill translates itself as a violent act perpetuated by the hands of lawmakers which distort the meaning of family.

Frequent attacks on LGBT rights

This is one of the challenges that the LGBT community faces with the legislature that daily attacks them. For example, since 2019, state deputies from all over Brazil have presented at least 122 bills that attack the rights of the LGBTI+ population. Of these proposals, 108 are still being processed, Twelve proposals were archived and two were approved in the Legislative Assemblies. This demonstrates that the extreme right is threatening the achievements of the LGBTQIA+ community.

In addition to being discriminatory and therefore unconstitutional, the legislative measure is also at odds with public opinion. In 2022, 79% of Brazilians believed that homosexuality should be accepted by all of society compared to 74% in 2017, according to the data compiled by the national survey Datafolha. Paradoxically, violence in Brazil against LGBTQIA+ remains historically high. In 2021, 33% of all the murders of trans people around the world occurred in Brazil, as reported by Trans Murder Monitoring (TMM) of the organization Transgender Europe, again putting Brazil at the top of the list of the most murderous countries for trans people. National data matches the international reports. In 2022, at least 151 trans people died violently in Brazil, with 131 cases of murder and 20 trans individuals who died by suicide, according to ANTRA statistics. A LGBTQIA+ person is killed every 32 hours in 2022, according to the civil society Report on Deaths and Violence Against LGBTI+ in Brazil. Initiatives such as the one prohibiting same-sex marriage impacts well beyond unions themselves: it is the use of political power to oppress an already violated social group.

The prohibition of same-sex marriage is even more violent when one takes into account the historical omission of the legislative branch: in Brazil, there is not a single federal legislative act that specifically protects LGBTQIA+ rights. All the major legal breakthroughs have come primarily from the judiciary as a response to social mobilization and strategic litigation, primarily at the level of the Supreme Court. Allowing trans people to change their ID documents without the need of a surgery or judicial authorization in 2018, criminalizing hate crimes against LGBTQIA+ in 2019, permitting men that have sex with men to donate blood in 2020 and many other legal victories were won through the judiciary.

The message is clear: either Brazilian Congress repairs its historical omission in protecting LGBTQIA+ rights or it will continue to perpetuate the most violent act one can commit against LGBTQIA+ people, ignoring their equal status as human beings with dignity.