By Felipe Carlos de Carvalho -
A ruling by Brazil’s Supreme Court in May 2020 has allowed gay/bi men and trans women to donate blood*– a historic victory for the Brazilian LGBTQ movement. However, ANVISA, the National Sanitary Agency, controlled by the ultraconservative Bolsonaro administration refuses to abide by the decision, despite the Supreme Court ruling.
Brazil’s legal system differs in some key ways to those of countries such as the US and the UK. As in the US, marriage equality in Brazil resulted from a decision by the judicial branch of government. Unlike in the US, however, Brazil’s legal system is not common law, which means that codified law (written law) holds a heavier weight than judicial precedent or judge-made law. In 2011, when Brazil’s Supreme Court declared that constitutional principles stood in favour of civil unions of same-sex couples and in 2013, when the Superior Court of Justice applied the same understanding to the right to marriage, it was argued that, even though article 1.723 of the Civil Code recognizes civil unions are “between a man and a woman”, constitutional rights to human dignity, equality and freedom should mean the interpretation of the country’s civil law should be in favour of marriage equality.
However, the laws passed based on this understanding could be in jeopardy. Some argue that if Congress were to reaffirm lawful discrimination by passing new legislation insisting that marriage is only possible for straight couples (i.e. insisting on the definition of civil marriage as per article 1.723), the effects of the Supreme Court ruling would fall, ending marriage equality in the country for good.
This is a threat to LGBTQ rights in Brazil, where most (if not all) of the movement’s major achievements over the last 10 years came as decisions of the judiciary, not the executive. It was through the Supreme Court that trans people in Brazil got the right to change their name and gender in official documents without the need of undergoing sex reassignment surgery or a judicial process, which were required up until 2018. The Supreme Court is also responsible for ruling in favour of applying the same effects of the Brazilian anti-racism law to cases of homophobia and transphobia in 2019 in order to protect LGBTQ people from verbal aggression through homophobic/transphobic slurs and other crimes with homophobic or transphobic motivation. LGBTQ people were, up until then, the only minority group in the country that was vulnerable to hate crimes without having specific legal protection. This ruling was heavily criticized by the current administration’s supporters and Bolsonaro himself, who is known for homophobic speeches, an example being when he declared that he would rather have a dead son than a gay son.
In this context and considering how LGBTQ rights have evolved in Brazil over the last decade, if the judicial branch of government is not respected by the executive branch’s institutions, LGBTQ people will be at risk and Brazil’s democracy will likely take a dive into turmoil.
*Explaining blood donation restrictions for gay/bi men & trans women: Many countries worldwide impose blood donation restrictions on men who have sex with men (MSM) and trans women. The origin of these restrictions dates back to the AIDS-epidemic and those that still stand today completely ignore the development of modern medicine that now concerns itself more with what are perceived as risk behaviours (such as repeatedly having unprotected sex and the use of intravenous drugs) instead of risk categories (MSM and trans women), which was used in the past. For this reason, over the last decade, several countries have lifted the restrictions. Specifically in Brazil, MSM and trans women were prohibited from donating blood if they had had any sexual encounter with men in the year leading to the date of the donation, even if they were in a monogamous relationship, which virtually prohibits any sexually active individual in this group of people from donating blood.