Disputas de constitucionalidade em torno da diversidade sexual e de gênero: a mobilização judicial ativa e reativa da questão LGBTI+ no Supremo Tribunal Federal (2004-2024)

Abstract

The study of the judicial intervention in political matters has been a frequent research topic, especially over the past two decades, in the field of Political Science. When focusing on the Constitutional Court (just one of the instances of Judiciary), various studies analyze judicial review, that is, the constitutionality control of laws. Having moved beyond national academic discussions on the concepts of the judicialization of politics and the politicization of justice, the debate expands to include the handling of specific political, social, and cultural issues within judiciary and disputes with representative institutions. One of these issues relates to sexual and gender diversity, in which judicial institutions played an important role in ensuring rights for the LGBTI+ movement. Following the promulgation of the 1988 Federal Constitution and the three National Human Rights Programs (PNDH), the Executive was able to advance LGBTI+ citizenship. During Lula's first term, this agenda expanded, particularly in 2004 with the "Brazil Without Homophobia" (BSH) program. On the other hand, although this citizenship was strengthened until 2016 through public policies and judicial precedents, there was strong resistance and reactive mobilization, meaning a backlash from conservative movements opposing sexual and gender diversity policies. The general objective of the research is to verify the existence of reactive judicial mobilization in the Federal Supreme Court (STF) by conservative movements on the topic of sexual and gender diversity and, if confirmed, to analyze how they have acted in contesting LGBTI+ citizenship. To achieve the specific objectives, the adopted methodology was qualitative, exploratory, and descriptive, based on a literature review and the descriptive analysis and data collection (judicial precedents) from the STF website, by means of documentary research, covering the period from 2004 to 2024. The hypothesis that conservative movements also rose up through judicial mobilization against LGBTI+ citizenship was partially confirmed. Observed that there was no reactive mobilization in the Brazilian Supreme Federal Court (STF) during the proposed time frame, at least not as initiators of these lawsuits. However, this finding is relative, as it was noted that these conservative actors participated as amicus curiae in some of the cases. Although they did not file constitutional actions challenging LGBTI+ citizenship policies, institutional reactions led to active judicial mobilization in defense of equal rights.