The STF (Supreme Federal Court) criminalized homotransphobia five years ago, classifying the offense under the racism law —with a penalty of 2 to 5 years of imprisonment— until the National Congress approves specific legislation on the matter.
No such case was recorded by the Brazilian justice system until June 2022, because a specific procedural subject for discrimination against LGBTs had not been created. In the records, everything was classified as racism. This information comes from the CNJ (National Justice Council).
Initially, the agency had denied the existence of a procedural subject on this. After the publication of the report, it corrected the information, stating that the category was created two years ago.
Since then, the crimes can be classified as intolerance or offense based on identity, gender expression, or sexual orientation. Few cases were recorded from June 2022 to March of this year: 60.
Amid the gap in official data, organizations are trying to quantify the cases by consulting police reports. One of them is the Brazilian Forum of Public Security, which reported the total number of homophobia cases recorded as racism since 2020.
In that year, 111 cases were recorded in court. In 2021, there were 328. By 2022, the last year with data, there were 503. In the observed period, there was a 353% increase in notifications.
It was the lawyer Paulo Iotti, from São Paulo, who advocated for punishment under the racism law in cases of homophobia and transphobia before the Supreme Court. The action was brought to the court by ABGLT (Brazilian Association of Gays, Lesbians, and Transsexuals) and the Cidadania party. For Iotti, the lack of a procedural subject on homotransphobia after five years demonstrates the Judiciary's "unbelievable ill will, ineptitude, and incompetence". He explained to Folha that the law against racial crimes already provides for classifications by color, ethnicity, religion, and national origin.
Therefore, there would be no barrier to including sexual orientation or identity. For Iotti, a possible solution would be in the state police forces. "The public security secretariats could instruct their precincts to categorize the victim and map these data in the police reports," he said. "If it was against a gay person, make it clear. Against a lesbian, too." São Paulo follows this example. Since 2015, online and in-person police reports offer a field to indicate homophobia or transphobia as the likely motivation for the crime, in addition to profiling the victim's sexual orientation or identity. Thus, it is possible to identify the cases when they reach the courts.