The presidential candidate Luiz Inácio Lula da Silva (PT) did in an interview with the Flow Podcast, on Tuesday (18), a statement about transsexuality that can irritate LGBT activists and even be framed as a crime of “transphobia”, according to the understanding of the Federal Supreme Court (STF).
Igor “3K” Coelho, presenter of the program , which has 4.9 million followers on YouTube, was commenting with former President Lula about the rumors that circulated in the presidential elections of 2018 and would have been created by the supporters of the rival Jair Bolsonaro (PL). One of these rumors was that supporters of Fernando Haddad (PT), who ran in the election instead of Lula because he was in prison, would be distributing a penis-shaped bottle to children.
Talking about these creators of fake news, Lula said that “these absurd things, which they invent every day, have no criteria”, and added that “they are capable of saying that you were born a woman and later became a man, they are capable of saying that cows fly” , they are able to say that a horse has a horn.”
In June of 2019 the STF criminalized homophobia — prejudice and discrimination against homosexuals — and , by extension, transphobia — against transsexuals, by equating it with racism, effectively inserting the crime into law 7.716/89, which punishes racial prejudice and discrimination. Since then, football teams such as Grêmio and Flamengo have been fined tens of thousands of reais for chanting from their supporters considered homophobic by Justice.
Reaction of activists
Reacting to the speech on social media, the National Association of Transvestites and Transsexuals (ANTRA) said that “Lula’s ‘mistakes’ in Flow are the result of omission and lack of dialogue (and especially listening) with the LGBTQIA+ movements , especially trans”. ANTRA complained that the candidate’s campaign has been silent on the theme “trying to please the conservative wing”, and quoted an old speech by former president Dilma Rousseff (PT), who said in 2011, in reaction to a controversial educational kit produced by the Ministry of Education under Haddad, which would not make “propaganda of sexual choice”.
But the association’s criticism does not mean a rupture. ANTRA said it would have to put up with “the misuse of what Lula said”, and stated that it was one of the first LGBT institutions to publicly declare support for the candidate, “without giving up a critical stance”. “We reject any attempt to antagonize his election!”, concluded the NGO.
Last month, a group of Brazilian NGOs, with the participation of ANTRA, sent a delegation to the European Union to “expose the risks to the Democratic Rule of Law promoted by Bolsonaro and some of his supporters, as well as the advancement of the curtailment of civil and democratic liberties”, whom they also accuse of “political violence”.
In September from 2021 on Twitter, ANTRA called rapper Lil Nas X “transphobic” for dressing up as a pregnant man in a photo — a term he didn’t use to classify Lula’s statement. The NGO also claimed that the rapper’s photo was “an offense to women and other people who can get pregnant”. Pedro Motta and Henrique in December 2020 were also called transphobic by the NGO, for a song whose lyrics told the story of a man who felt deceived when he discovered that his girlfriend is a transvestite.
After reporting a crime of transphobia to the Public Ministry of Goiás, the musicians changed the lyrics, apologized repeatedly, and reproduced ANTRA’s statistics on murders due to transphobia in Brazil. The NGO’s data are not released to the public and the numbers are inspired by the work of Grupo Gay da Bahia, whose statistics for the year of 716 were shown to be false by an investigation in 2019.
Jurists criticize equivalence
The article 20 of law 7.716/18 criminalizes practicing, inciting or inducing racial prejudice, in addition to other characteristics, such as national origin. The STF opted for an interpretation of prejudice against LGBT as part of a “social racism”, which involves the consideration of race as a more social than a biological phenomenon and, therefore, comparable to other analogous social phenomena.
For criminal lawyer Andrew Fernandes, it is necessary to see the intent of the statement, that is, if there was an intention to incite prejudice on the part of Lula. For him, the speech “in theory, objectively, could affect the article 20”, following the interpretation of the Supreme Court. However, in Fernandes’ opinion, the National Congress should enact a law on the matter and the STF’s decision was inadequate. The lawyer is concerned about the intensification of requests to the State to interfere with freedom of expression in the country.
Many jurists claim that the equating of homophobia and transphobia with racism was wrong, as the STF has no power to create new crimes, as was the case.
“In addition to the issue of activism, in which the judiciary creates new laws, here the activism in criminal matters is even more impressive. The principle of Criminal Law in all states of law is that a new criminal type cannot be created through a judicial instrument. There is no crime without law, that is, without a normal one that crossed the entire legislative path”, said lawyer and doctor in Law from the University of São Paulo Alessandro Chiarottino, in an interview with Gazeta do Povo.
For the professor of Constitutional Law Tadeu Nóbrega, the silence of the Legislature is already a position on the subject. “The non-action of Congress, which appears to be an omission, is an assumed position of not wanting to criminalize certain conduct. And this not only in relation to homophobia, but also applies to other conduct not criminalized by the Legislature. Congress should be responsible for making the laws. The legislature has its autonomy and should be able to choose whatever is criminalized or not,” he explained.
