LGBT rights in Brazil

LGBT rights in Brazil
Brazil
Same-sex sexual activity legal?	Legal since 1830
Gender identity/expression	Already occurred[1]
Recognition of relationships	Civil unions
Adoption	Already occurred[2]
Military service	Gays and lesbians allowed to serve openly
Discrimination protections	Varies by state (see below)

Lesbian, gay, bisexual, and transgender (LGBT) persons in Brazil may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity are legal in Brazil, but same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex couples.

In 2004, a statement from the judges in the country said homosexual relationships existed and as such, deserved to be regulated by law. "Technically, this is not going to be called 'gay marriage' by the justice of the peace, but it is the equivalent," Tania Bampi, a spokeswoman for the court administration, said. The ruling gives same-sex couples broad rights in areas like inheritance, child custody, insurance benefits and pensions.^[3] In that case is applied the legal analogy, when there is a law for the same fact.^[4]

The number of LGBT rights in Brazil has expanded since the end of the military dictatorship in 1985.^[5] The gay population in Brazil is more than 20 million people, however the confirmed do not represent neither 5%.^[6] According to the Guinness Book, the São Paulo Gay Pride Parade is the world's largest Gay Pride celebration, with 4 million people in 2009.^[7]

Contents 1 Timeline 2 The UN Resolution 3 Anti-discrimination laws 4 Violence 5 Transgender 6 LGBT plan and conference 6.1 Plan 6.2 Conference 7 Politics 8 Religion and LGBT rights 9 Opposition 10 LGBT immigration 10.1 To Brazil 10.2 In Brazil 11 Adoption by same-sex couples 12 Civil unions and same-sex marriage 12.1 Same-sex couple rights 13 Gay parades 14 Summary table 15 See also 16 Notes 17 External links

Timeline

• 1830: Dom Pedro I signed into law the Imperial Penal Code. It eliminates all references to sodomy.^[8]

• 1979: O Lampião, a gay magazine, written by many famous authors, like João Silvério Trevisan, Aguinaldo Silva and Luiz Mott, was created, surviving just until the next year.

• 1980: Grupo Gay da Bahia, the oldest gay rights organization in Brazil, is founded in Salvador, Bahia, together with SOMOS, another organization in São Paulo, State of São Paulo.

• 1989: The constitutions of the states of Mato Grosso and Sergipe are signed into law. They explicitly forbid discrimination on grounds of sexual orientation.^[9][10]

• 1995: Congresswoman Marta Suplicy proposed Bill project No. 1151 concerning civil unions. The bill is pending approval in the House since 1995.

• 1997: G Magazine, the first gay-oriented erotic magazine with large and national distribution, is published.

• 2004: Rio Grande do Sul allow to register civil unions in a generic civil law notary after a court decision in March.^[11]

• 2006: A male gay couple from Catanduva, São Paulo officially adopts a five year-old girl.^[12] According to Folha de S. Paulo, a lesbian couple from Rio Grande do Sul was the first to achieve such right.^[13]

• June 10, 2007: In its eleventh edition, the São Paulo Gay Pride Parade breaks its own record as the biggest parade in the world and attracts 3.5 million people.^[14]

• June 25, 2007: The Richarlyson affair in which a judge is brought before the Justice Council of São Paulo for stating in court that soccer is a "virile, masculine sport and not a homosexual one." However, afterwards the own judge asked license and afterwards decided to annul what wrote.^[15]

• 2008: National LGBT Conference. The event, the first in the world to be convened by a government, is a result of demands made by civil society and the Brazilian government's support of LGBT people's rights.^[16]

The UN Resolution

Text of the draft resolution presented by Brazil to be voted on at the 59th session of the United Nations Commission on Human Rights (including the "Human Rights and Sexual Orientation"), April 23, 2003:

The Commission on Human Rights, reaffirming the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child.

Recalling that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Reaffirming that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein without distinction of any kind. Affirming that human rights education is a key to changing attitudes and behaviour and to promoting respect for diversity in societies.^[17]

1. Expresses deep concern at the occurrence of violations of human rights in the world against persons on the grounds of their sexual orientation;

1. Stresses that human rights and fundamental freedoms are the birthright of all human beings, that the universal nature of these rights and freedoms is beyond question and that the enjoyment of such rights and freedoms should not be hindered in any way on the grounds of sexual orientation;
2. Calls upon all States to promote and protect the human rights of all persons regardless of their sexual orientation;
3. Notes the attention given to human rights violations on the grounds of sexual orientation by the special procedures in their reports to the Commission on Human Rights, as well as by the treaty monitoring bodies, and encourages all special procedures of the Commission, within their mandates, to give due attention to the subject;
4. Requests the United Nations High Commissioner for Human Rights to pay due attention to the violation of human rights on the grounds of sexual orientation;
5. Decides to continue consideration of the matter at its sixtieth session under the same agenda item.

There is an increasing awareness of the pervasiveness of human rights violations against LGBT persons. The urgency and serious nature of these violations calls for a strengthened UN mechanism and for particular attention to the issues at the highest level of the UN machinery dealing with human rights, i.e. the UN Commission on Human Rights. The UN must adopt a resolution that grants a direct mandate to the Office of the High Commissioner for Human Rights (OHCHR) to address human rights violations of LGBT people.^[18]

Anti-discrimination laws

Images of Latin America's "machismo" and its resultant homophobia are changing now that individual rights, such as the right to act in accordance with one's sexual orientation, enjoy the protection of law. Brazil, South America's largest country, which adopted a liberal constitution in 1988, continues to fashion protections for all of its citizens. Shortly after electing Luiz Inácio Lula da Silva as that nation's president, to the dismay of Brazil's right-wing zealots, various states are now taking serious measures ensuring that no one will be discriminated against because of his or her sexual orientation. The 1989 constitutions of the states of Mato Grosso (article 10) and of Sergipe (article 3) explicitly prohibit discrimination based on sexual orientation.^[19] As of 2003, discrimination on the basis of sexual orientation was prohibited in 73 municipal statutes. And including the constitutions of the states of São Paulo, Rio de Janeiro, Bahia, Minas Gerais, Santa Catarina has just promulgated a new law, recently signed by its governor, that will severely fine businesses discriminating against gays, lesbians, bisexuals or transgenders. The text of the new law does not, at least apparently, give way to any loopholes:

"Any aggressive or discriminatory act against any homosexual, bisexual or transgender citizen will be punished accordingly with the law." The punishments are cumulative: A first offense will bring a warning, but any subsequent action will be heavily fined. Fines vary from $ 300 to $ 1000, a considerable sum in Brazil. In the case of further incidences, the offender will face the permanent seizure of his operating license. The law goes into effect immediately. Santa Catarina's bold step into social equality was met with enthusiasm by same-sex activists in Santa Catarina ("Hooray!", read the title of Glssite's newsletter commemorating the law's signing) who worked long and hard to get it passed. The first Brazilian state to create such laws, which then generated much controversy, was Bahia, the northeastern home of the Luiz Mott, led Grupo Gay da Bahia, arguably the largest and best-known gay activist group in the nation. Its laws were enacted in 1997.^[20]

On November 30, 2000, the city council of Niterói, in the State of Rio de Janeiro, passed an ordinance prohibiting discrimination based on sexual orientation in public places and institutions as well as in business. Many brazilian cities and states have anti-discriminatory legislation that explicitly includes sexual orientation. Some of them provide specific penalties for those who engage in discrimination, as the Niterói ordinance does. The measure is currently on the desk of Niteroi's Mayor, who must approve it before it is enacted. IGLHRC and Cidadania Gay, a local gay organization, ask for letters to the Mayor in support of the measure, as well as congratulatory emails to the councilor who authored the proposal and fought for its passage.^[21]

As of 2007, a federal anti-discrimination law is currently pending approval on the Senate. The federal constitution does not have any specific laws on discrimination based on sexual orientation but it does have a generic anti-discrimination article that can be considered to include such cases. This fact is constantly used by the opposition of the anti-discrimination law to show that there is no need for specific laws. The defenders of the new law however, argue that without clear designation this will still be considered somewhat of a lesser crime. Some conservative Catholic and Protestant senators argue that the law would be an aggression on religious freedom granted by the Constitution. Senator Fátima Cleide (PT-RO) said that the law should be approved because "the country has the tragic mark that a homosexual is murdered each two days." Former Evangelical priest and senator Marcelo Crivella (PRB-RJ) criticizes the text, saying homosexuals will receive a protection that "should have been given to women, the elderly and children."^[22]

Violence

In 2004, Grupo Gay da Bahia released a list with the names of 159 murdered members of the LGBT community in that year.^[23] There is also a list with the names of people that allegedly suffered from human rights abuses in the same year.^[24] There are no official reports about hate crimes, but a research made in 2005 by the Latin American Center of Human Rights in Sexuality (Clam) found out that 65% of the homosexuals interviewed in that year's São Paulo Gay Pride Parade said that they were victims of hate speech and/or suffered physical aggression.^[22]

In mid-2006, Brazil launched Brazil Against Homophobia, a campaign against homophobia within the country including television advertisement and billboards. According to an article published in June 11, 2007 by the BBC, activists estimate that between 1980 and 2006 some 2,680 gay people were murdered in Brazil, the majority thought to have been killed because of their sexuality.^[25]

Brazil has been rated as one of the countries where the most gay people are killed. According to the report "Epidemic of Hate", published in 1996 by the International Gay and Lesbian Human Rights Commission, at least 1,200 gays, lesbians and transsexuals were killed in Brazil alone in a decade. According to the Grupo Gay da Bahia, Brazil's largest and most active gay organization, a gay, lesbian or transvestite is brutally murdered every two days due to homophobia, with a total of 130 last year alone. According to GGB's statistics, only 2% of these attacks are on lesbians, but "Love Sees No Borders" believes this number is grossly underestimated for two main reasons. First, a vast percentage of homophobia-related crimes go unreported. Even in the United States, most hate crimes are not reported.

The city of San Francisco, considered by many as a gay Mecca, has one of the highest percentages of hate crimes in the U.S. Very likely this is because people feel comfortable enough to come forward with their complaints knowing they will not be discriminated against by institutions and law enforcement officials, after all, a large majority of hate crimes in Brazil are committed by police officers, therefore, elevating the number of people unwilling to denounce a crime. Second, in women's cases brutality against lesbians very likely takes the form of violent rape. If a victim comes forward, the complaint will be rape, not a hate crime against a lesbian.^[26]

Sexuality and Hate Crimes is the first documentary film produced by Director Vagner de Almeida and Richard Parker. This documentary seeks protest in the name of brutalities committed against homosexuals in Brazil. The hate crimes come from different segments of society for the director, the Catholic Church and radical evangelical groups are co-responsible for the rising intolerance, when they actively engage against the civil rights of non-heterosexuals. In a society dominated by religious and moralist values against the LGBT communities, the absence of rights has already lead to the deaths of thousands of Brazilian citizens.

From the beginning of this series of films about metropolitan Rio de Janeiro, various protagonists from the films have been barbarically murdered by people who still have their liberties, still assassinating other in the homosexual communities with impunity. In this country, in the first months of 2008 there were 45 homicides against gays registered. It is a year of homophobic violence, which worries us because the represent only the cases registered officially in police stations or in hospitals. Many of the afflicted are unrecognizable after death and mutilation. They are murdered merely because they are gays, lesbians or transsexuals (mainly transsexuals).^[27]

Transgender

While the term transgender as used in the United States and Europe has come to encompass all gender-variant individuals, including female-to-male transsexuals, drag queens and kings, and intersex individuals, in Brazil the social phenomenon of "transgênero" largely consists of individuals who were born male but who live their lives as women. Transgender people in Brazil fall into two categories: "travestis" (i.e., transvestites) and transsexuals, although for many the two terms are interchangeable. To the extent that the latter insist on distinguishing themselves from transvestites, it is because transsexuals consider that they were born into the wrong body, whereas transvestites do not experience as deeply internal conflicts in relation to their male bodies.

In Brazil, it is estimated there are 6,000 to 8,000 transvestites, 90% of them living as prostitutes with bisexual clients. This very poor and marginalized population is concentrated in decadent prostitution areas. These "breast boys" receive average of 4 clients each night. As a result of financing from the Brazilian Health Ministry and World Bank, realized systematic work of information, self-esteem and defense of the human rights of this marginal minority, encouraging the adoption of behaviour of less risky for contamination. From a total of 235 contacts, 113 transvestites were interviewed, of which 33% had made one or more silicone aplications, and 42% intend to do; 8% declared the use of intravenous drugs and 20% only started to use condoms after the beginning of this project.

The program of prevention of STD/AIDS with transvestite sex workers of Bahia presents excellent results: after research on the local community, a booklet, a folder and a poster were produced, all with realistic language and images peculiar to this subculture. Every week safer sex workshops and direct contact with the transvestites in different prostitution areas are accomplished. In 6 months, the program recorded 900 interventions, and distributed 14,400 condoms. Programs of STD/AIDS together with transvestite sex workers must use strong elements of the local subculture and count on the trust of the social actor in order to be successful.^[28]

The formal labor market is largely closed to transgender people. An extremely small minority of transvestites have university educations or professional qualifications. With few exceptions, the only professions open to them are nursing, domestic service, hairdressing, gay entertainment, and prostitution. In some cases, even those who work as hairdressers, gay night club artists, and domestic servants also double as sex workers. In the central, north, and northeastern regions of Brazil, transgender people from extremely poor families sometimes begin working as prostitutes as early as 12 years of age, especially if they have been expelled from home by their families. In the south and southeastern regions and in the major capitals of São Paulo and Rio de Janeiro, it is common to find transvestites as young as 16 or 17 working the streets. Despite being included in Brazil's acronym in the struggle for LGBT rights, transgender people receive little outreach from the more mainstream gay and lesbian groups. There are, however, associations of transgender people in several Brazilian states and cities. One program in Rio de Janeiro focuses on the reintegration of transvestites into society through training and employment opportunities.^[29]

Brazil's public health system provides free sex-change operations. Federal prosecutors from the State of Rio Grande do Sul had argued that sexual reassignment surgery is covered under a constitutional clause guaranteeing medical care as a basic right. In 2007 the 4th Regional Federal Court agreed, saying in its ruling that "from the biomedical perspective, transsexuality can be described as a sexual identity disturbance where individuals need to change their sexual designation or face serious consequences in their lives, including intense suffering, mutilation and suicide." The Health Ministry said it would be up to local health officials to decide who qualifies for the surgery and what priority it will be given compared with other operations within the public health system. Patients must be at least 21 years old and diagnosed as transsexuals with no other personality disorders and must undergo psychological evaluation for at least two years, the ministry said. Gay activists applauded the decision.

So far the measure has not prompted any opposition. Brazil's public health system offers free care to all Brazilians, including a variety of surgeries and free AIDS medication. But long lines and poorly equipped facilities mean that those who can afford it usually choose to pay for private hospitals and clinics. The health ministry said that since 2000, about 250 sexual reassignment surgeries considered experimental have been performed at three university hospitals.^[30]

LGBT plan and conference

Plan

The Federal government of Brazil of the country released in Brasília, in 2009, the National Plan of Promotion of the Citizenship and Human Rights of LGBT ("Plano Nacional de Promoção da Cidadania e Direitos Humanos de LGBT"), a groundbreaking national plan to promote rights of gays, lesbians, bisexuals, and transsexuals. The plan may also play an important role in the legalization of gay civil unions on a federal level, and in the approval of the law which criminalizes homophobic acts. The plan is composed of 51 key policies developed in June 2008 at the National LGBT Conference. It includes:^[31]

• The legalization of adoption rights by homosexual couples, and the equality of civil rights of homosexual couples;
• The development of a sexual diversity educational program in the curriculum of military and police officers;
• The revision of the current restriction for homosexuals to donate blood;
• The right to automatically change name and sex without having to file a lawsuit in the case of transsexuals;
• Rating television programming which contains homophobic content as inappropriate for children and adolescents;
• Adding homosexualbfamilies as a theme to educational books.

Conference

The first National Conference for Lesbians, Gay Men, Bisexuals, Transvestites and Transsexuals (LGBT) launched in 2008 by Brazilian Government, in the federal capital of Brasília. The event, the first in the world to be convened by a government, is a result of demands made by civil society and the Brazilian government's support of LGBT people's rights. The Conference will be held from June 5 to 8, having as its theme "Human rights and public policies: the way forward for guaranteeing the citizenship of Lesbians, Gay Men, Bisexuals, Transvestites and Transsexuals." During the conference public policies will be defined for this segment of the population and a National Plan for the Promotion of LGBT Citizenship and Human Rights will also be prepared. An evaluation will also be made of the Brazil Without Homophobia programme to combat violence and discrimination against the LGBT population, launched by the federal government in 2004.^[32]

The holding of the Conference coincides with the commemoration of the 60th anniversary of the Universal Declaration of Human Rights and reaffirms the federal government's commitment to the issue of LGBT human rights. Marta Suplicy, Tourism Minister and a longstanding supporter of LGBT rights, commemorated the initiative. "At long last, after so many years, we are finally able to hold this Conference. It's a giant's stride forward for Brazil." For the Justice Minister, Tarso Genro, the LGBT Conference is a demonstration of respect for the human condition. "A human rights agenda that does not contemplate this issue is incomplete."

Also present at the ceremony to launch the Conference were the Minister of the Special Department for Human Rights, Paulo Vannuchi; Senator Fátima Cleide, of the Parliamentary Front for LGBT Citizenship; the Minister of the Department for Racial Equality Policies, Edson Santos; the Minister of the Special Department for Women's Policies, Nilcéa Freire, and the directors of the Ministry of Health's National STD and AIDS Programme, Mariângela Simão and Eduardo Barbosa.^[33]

The Conference was convened by Decree issued by Brazil's President, Luíz Inácio Lula da Silva, and published in the Official Federal Gazette. Approximately 700 delegates are expected to take part in the Conference, with 60% civil society participation and 40% governmental participation. The participation of a further 300 observers is also expected. 16 ministries have collaborated with the process of drafting the base-text document on public policies to be discussed during the event and subsequently implemented. Prior to the National Conference, conferences are currently being held in Brazil's 27 states, convened by the state governors, in order to develop complementary proposals for the national policy document, define state-level policies and elect the delegates to the National Conference. More than 100 conferences have also been held at municipal level.^[34]

Politics

One of the candidates for city council of Salvador, Bahia that did win, the transvestite club dancer Leo Kret, was the most voted for throughout the city. So when she takes office, defying dress code norms she insists that her wardrobe will be strictly feminine and will be using the women's restroom.^[35] The transvestite received 12,861 votes in the city, by the Republican Party (PR-BA) in the municipal elections of 2008.^[36] In the day of possession said that will defend the LGBT rights.^[37] She dreams to become president of Brazil.^[38] The other LGBT candidates chosen in Brazil for city council were: José Itaparandi in Paço do Lumiar, Maranhão, with 855 votes. Sander Simaglio in Alfenas, south of the State of Minas Gerais, with 629 votes, by the Green Party (PV-MG). Anselmo Fabiano Santos in Itaúna, Minas Gerais, with 1,168 votes, by the Brazilian Labour Party (PTB-MA).^[39] Moacyr Sélia is transvestite and hairdresser, if reelected to the charge of councilman with 871 votes, by the Republican Party (PR-ES), in the city of Nova Venécia, north of the State of Espírito Santo. In his present management, she already assumed the presidency of the Chamber in two occasions.^[40]

Religion and LGBT rights

Brazil is a secular state, in which there exists a separation of church and state. The country does not have an official religion.^[41] By contrast, Argentina, a neighboring country, has an official religion, the Roman Catholic Church.^[42]

The Roman Catholic Church has an official Vatican paper on homosexuality, but their progressive bishops in Brazil have a hard time divulging it publicly. Many Protestant Churches have basically the same stand as the Vatican paper, but most of them do not proclaim their views publicly. In mainline liberal Protestant churches, the stand is public, but there is an effort to avoid Biblical condemnation of homosexuality. And while most of the conservative churches keep silent on the issue, Brazil has seen the growth of gay evangelical churches such as the Metropolitan Community Church, a gay denomination from the U.S. Apart from the religious people, moral disapproval of homosexuality has been rare, because of the social pressures condemning prejudice and homophobia. Among evangelicals, there are some campaigns to reach out to homosexual men and women. "Movimento pela Sexualidade Sadia" (Movement for a Healthy Sexuality), an evangelical group headed by an ex-homosexual, leads efforts to evangelize in gay parades, talking about Jesus to participants and delivering leaflets featuring the testimonials of ex-gays and ex-lesbians.^[43]

There may be a religious factor in Brazilian homosexuality. A minority of the Brazilian population adheres to Candomblé and other Afro-Brazilian religions (similar to Santeria), where homosexuality is common. For a comparison, there are some 19,000 recognized Catholic parishes in Brazil. Informal Candomblé temples are supposed to number some 12,000 in Rio de Janeiro alone. In Candomblé, many priests and priestesses are homosexual. Luiz Mott, the leader of the homosexual movement in Brazil, is a firm adherent of Candomblé. Many famous Brazilians turn to Afro-Brazilian religions in search of miracles to solve personal or family problems. Even former President Fernando Henrique Cardoso, though a Marxist and an atheist, had sympathy for and sometimes visited Candomblé rituals.^[44]

Opposition

The main opponents of the advances of the gay rights movement in Brazil have generally been conservatives. Religion is the most cited reason for opposing gay rights. Regionally, opposition to the gay rights movement has been strongest in rural interior. All of the projects of law that injure the human dignity (including homosexuals) were declared unconstitutional.

Catholic and evangelical politicians have also been trying to counter gay rights through the introduction of bills. Among them are: Bill 2279/03 (Federal) authored by Representative Elimar Damasceno that makes illegal the act of kissing between persons of the same sex in public; Bill 2177/03 (Federal) authored by Representative Neucimar Fraga that creates an aid and assistance program for sexual reorientation of persons who voluntarily opt for changing their sexual orientation from homosexuality to heterosexuality. State representative Edino Fonseca, an Assembly of God minister, introduced a bill in the Rio de Janeiro State Legislature to establish social services to support men and women wanting to leave homosexuality. He has also introduced a bill to protect evangelical groups offering assistance to such men and women from discrimination and harassment. His former bill was defeated by the powerful gay lobby. The latter bill is facing severe opposition. It says: "No divulging of information on the possibility of support and/or the possibility of sexual reorientation of homosexuals is to be considered prejudice."^[45]

LGBT immigration

To Brazil

A watershed decision issued on November 25, 2003, by Brazilian judge Ana Carolina Morozowski of the 5th Civil Court of Curitiba, Paraná, recognized the same-sex relationship of national gay activist Toni Reis with British citizen David Ian Harrad, granting Harrad permanent residence in Brazil. A week later, the National Immigration Council instituted the Administrative Resolution Number 3, 2003, which "disposes of the criteria for the concession of temporary or permanent visa, or of definitive permanence to the male or female partner, without distinction of sex." Brazil is the first country in Latin America, to recognize same-sex unions for immigration benefits. Following Brazil's example, other country in South America have recently made major advances in the recognition of same-sex relationships, including immigration rights, for example, Colombia in 2009.

However, the Brazilian Government was slow in cabling consulates regarding this decision. Thus, many same-sex couples who sought to move to Brazil to take advantage of this new policy were left confused by the lake of clarity of the government and unable to receive the benefit this policy was intended to provide. In February 2004, in a joint meeting at the Brazilian consulate in New York, Immigration Equality and the Brazilian Rainbow Group asked the consular officials to clarify the application procedures regarding the new immigration policy. Despite ongoing confusion, the Brazilian Rainbow Group has obtained copies of Administrative Resolution #3 and accompanying regulations that clarify the rules for same-sex binational couples where one partner is a brazilian citizen.^[46]

“

We are thrilled to report that clear procedures are now available to binational same-sex couples who seek to immigrate to Brazil, says Eryck Duran, Executive Director of the Brazilian Rainbow Group, and he adds: We are proud that Brazilis committed to end discrimination of gays and lesbians as the government has recognized that extending immigration to same-sex partners or spouses of Brazilian citizens is licit and sanctioned by the Constitution.

”

In order to respond to the concerns about the possibility about potential immigration fraud, Brazil's immigration authority enacted the Administrative Resolution Number 5 in 2003, which establishes the criteria under which Brazilian residency should be provided to foreigners in committed partnerships with either Brazilian citizens or foreign holders of Brazilian temporary visas, without distinction to either partners' gender. The resolution establishes that for the foreign partner to be granted residency status, the applicant must demonstrate a permanent civil union with his or her partner that has been issued by a Brazilian authority or a corresponding foreign authority, thereby providing proof of the relationship. This can include certificates of marriage or civil union in Brazil or another country, affidavits from friends and family, evidence of a natural or adopted child raised by the couple, or evidence of financial support.

Such requirements not only succeed prevented immigration fraud but also effectively disproved the dire warnings of critics around the world that extending immigration rights to same-sex couples would somehow result in a surge of fraudulent claims of fake couples falsely claiming to be gay or in committed relationships solely to gain citizenship rights. This has clearly proved to not to have been the case in Brazil, since the criteria for proving the committed nature of same-sex unions is at least stringent as those for opposite-sex union. In the United States, this right is not recognized, however exists a proposed legislation to be voted. The law offers numerous safeguards of its own to prevent immigration fraud, the proposed legislation is just as extremely unlikely result in a rise immigration fraud in the U.S. as it has been in Brazil or in the nineteen other countries that presently extended immigration rights to same-sex-couples.^[47]

In Brazil

During the history of the country, many homosexuals immigrated and continue immigrating to the brazilian largest cities even without financial problems in its cities of origin. Planning in those cities earn liberty and independence. The cities of São Paulo, Rio de Janeiro, Salvador, Brasília, Belo Horizonte, Recife, Porto Alegre, Curitiba, and others, receive annually many members. The largest cities offer many options of entertainment for this public.^[48]

Adoption by same-sex couples

In 2005 and 2006, two adoptions by lesbian couples are known, and one "provisional guardianship." The first adoption in Brazil by a same-sex couple was by a lesbian couple from the State of Rio Grande do Sul. Same-sex couples in committed relationships are able to register at any notary public office. Although it does not affect federal rights, it gives same-sex couples more equality in many areas. Same-sex couples who register have the right to jointly own property, establish custody of children, and claim the right to pensions and property when one partner dies.^[49]

In 2006, a male gay couple from the State of São Paulo adopted a five year old girl. One man, Vasco Pedro da Gama, had already adopted the girl. The name of his partner, Júnior de Carvalho, was then added to the birth certificate. Gay women have been granted adoption rights twice before, but this is the first time they have been given to men. Correspondents say the ruling will not necessarily apply outside of the State of São Paulo. But it is part of a wider relaxation of the traditionally strict laws on homosexual rights in Brazil, they say. The couple's lawyer said that they hoped the case would now make it harder for judges to deny adoption to gay men in the future. The girl, Theodora, had been living with her adoptive parents since last December, at which point Mr da Gama took the legal steps to adopt her as a single parent. The two men had been in a relationship for the last 14 years and started thinking about adopting back in 1998, Brazil's Globo newspaper reports. "If they had tried to adopt as a couple, probably Theodora would not be with them now," the lawyer added.^[50] The São Paulo court's decision reflects the growing influence of homosexual activist organizations on Brazil's traditionally strong opposition to homosexual activity. The International Gay and Lesbian Human Rights Commission has exerted pressure over the past few years on the Brazilian government, demanding the government support a resolution on "sexual orientation and human rights" at the United Nations Commission on Human Rights. Brazil has led the push to include "sexual orientation" as an internationally recognized human right.^[51]

In 2007, a male gay couple, João, 34 and Paulo, 40, also from the city of Ribeirão Preto, in the State of São Paulo have been granted the provisional guardianship of four children, 3 girls and 1 boy, all brothers and sisters. The two men had been in a relationship for the last 15 years. The judge of the case stated that it is likely that the guardianship will evolve into adoption.^[52]

Civil unions and same-sex marriage

On December 16, 2003, Brazil announced that it will recognize legal same-sex unions performed abroad for immigration purposes. Couples who are married (Belgium, Canada, the Netherlands, Norway, South Africa, Spain, Sweden), in a civil union or domestic partnership (France, United Kingdom, etc.), or even in a city registry (San Francisco, Buenos Aires) can use their union certificate to apply for immigration benefits to Brazil. Nineteen countries, including much of Western Europe, Canada, Brazil and Australia among others, allow nationals to sponsor same-sex partners for citizenship. The United States, for example, does not recognize that right.^[53]

Its legislative and legal branches are incredibly gay-friendly. As a matter of fact, same-sex unions are treated as common-law marriages and in some cases surviving spouses are able to claim the pension money of the deceased. The United States leads Brazil in social acceptance, yet sorely lags behind in legal recognition of couples. Conversely, Brazil provides most benefits of marriage to same-sex couples through common-law.^[54] According to the Grupo Gay da Bahia (Gay Group of Bahia - GGB), the book of homosexual stable union, instituted five years ago, states that for lack of being able to marry in the registry, as any heterosexual couple, the National Institute of Social Security (Instituto Nacional de Segurança Social - INSS) recognizes this document as a means for, occasionally, sharing inheritance, receiving a pension, etc. There are already 30 cases in the State of Bahia between gays and lesbians. This includes a case in which the companion passed away and the surviving spouse received the pension. In Brazil, already more than 200 recorded cases exist. 15 capitals of the States also instituted The Book of Homosexual Stable Union.^[55]

Brazilian same-sex union jurisprudence derives from the long national tradition of giving legal protection to unmarried couples, a practice that reflects the liberal approach which has long characterized Brazilian family law jurisprudence. Brazilian courts have always emphasized the importance of the judicial system in maintaining an adequate balance between legislation and the transformation of social reality. Several Brazilian courts have argued that a conservative interpretation of family law legislation in a country with a large number of informal families would increase the level of social exclusion. Favoring the promotion of social justice over moral concerns regarding legal protection to nonmarital relationships, brazilian courts have consistently extended legal protection to domestic cohabitants. The courts usually claim that such protection realizes the basic principles of the Brazilian constitutional order by extending legal protection to new forms of family arrangements. The new Constitution that affords a considerable degree of legal protection to social groups encouraged brazilian same-sex couples to seek legal recognition for their unions.^[56]

Fact unions may be registered in a civil law notary throughout the country (there are specific ordinances about it in Rio Grande do Sul, Roraima and Piauí, but the right is federal and registration is possible in others places too), but this registration doesn't allow any automatic right. A court decision has been pending since 2005 on the legalization of gay marriage nationwide, but this case has been suspended in Supremo Tribunal Federal (the constitutional court), where Rio de Janeiro governor Sergio Cabral Filho has asked the court to equate these unions to opposite gender fact unions.^[57]

A binational gay couple was forced to leave Chicago and move to Brazil, just so they could be together. U.S. citizen and former Chicagoan Chris Bohlander won the right to live permanently in Brazil with his partner, Zemir Magalhães. The couple left Chicago three years ago to live together in Goiânia. A brazilian judge allowed Bohlander to obtain a permanent residency visa, which is normally only given to the foreign spouse of a Brazilian, based on their civil union, which was recognized by a Goiás judge in 2008. In Brazil, the couple's victory is seen as a huge deal, especially because the ruling is based on the fundamental rights and protections guaranteed all Brazilians under the country's constitution. However they aren't the first binational couple to receive a favorable ruling, several others already received the same right.^[58]

Brazil does not officially recognize same-sex unions or marriage although amendments to this were being planned as of January 2009. Marriage law in Brazil is determined by federal and not state law. In the United States of America this is determined by state law. It defines marriage as the union of a man and a woman. The constitution and federal law do not specifically prohibit same-sex marriage but fail to acknowledge it officially. The Brazilian constitution does outlaw prejudice on the basis of origin, race, gender, skin colour, age and any other form of discrimination. This was used as the basis of a Public Civil Action (Ação Civil Pública) in 2005 which, had it been successful, would have legitimised same-sex marriage throughout Brazil. It was decided by the court however that this matter should be determined by Congress and not in court.

Same-sex couple rights

A bill was proposed in Congress in 1995 to change federal law and allow the recognition of same-sex unions but it has faced strong opposition and, as of January 2009, has not yet been voted on. Since the late 1990s however, many concessions have been granted to homosexual couples. Same-sex couples were determined to be de facto partners by the Superior Justice Tribunal in 2006. This gave some rights to same-sex couples. One of the official categories for a relationship in Brazil other than marriage is a stable union.

Many independent judicial decisions in Brazil since 1998 have recognized same-sex partnerships in this category under common law and granted various rights to the individuals concerned. There is no actual definition or consensus on what constitutes a stable union. However, if Brazilian same-sex couples can prove their relationships falls into this category they are entitled to the following rights:

• The National Social Security Institute (Ministério da Previdência Social) will regard them no differently to a married couple in the areas of death and pension benefits;
• Partners can receive insurance benefits;
• Partners can be declared as dependents for income tax purposes;
• Non-nationals partnered to Brazilians can receive residency permits;
• Partners may be considered for custody of children.

In the State of Rio de Janeiro, the partners of government employees receive the same benefits as married couples. In the State of Rio Grande do Sul in Southern Brazil, judges have determined that homosexual relationships should also be legally recognised. All judges and justices of the peace are now bound to approve civil unions (União Civil) "between persons of sound mind and independent sexual orientation" in the state.

It is possible to identify three distinct phases in the development of Brazilian same-sex union jurisprudence, each one establishing the basis for the achievement of new rights. The first phase began in 1989 with the first decisions entitling same-sex couples to legal protection through the classification of same-sex unions as de facto partnerships. Originally created to regulate equal division of property among participants of non-registered business partnerships, this institution guaranteed access to property rights to domestic cohabitants upon evidence of direct or indirect contribution to the construction of the common property. The Brazilian courts have resorted to this institution to solve property rights problems arising from domestic cohabitation since the first decades of the twentieth century. By affirming that same-sex partners have legal obligations towards each other, the Brazilian courts classified same-sex unions as de facto partnerships, a measure that conferred access to property rights on same-sex couples.

The Brazilian courts unanimously agree that same-sex unions can be classified as de facto partnerships because this institution guarantees same-sex couples access to a category of spousal rights without deeming them to be spouses. Representing an important turn in the history of Brazilian same-sex union jurisprudence, several courts began to recognize same-sex couples as family members as early as 1996, a process that granted a new degree of legal protection to many same-sex partners. The struggle for the inclusion of same-sex partners as beneficiaries of welfare benefits shifted the focus of Brazilian same-sex union jurisprudence from access to property rights to the question of equal legal treatment of same-sex and opposite-sex unions. If the decisions classifying same-sex unions as de facto partnerships guaranteed a right to equal division of property, the decisions granting welfare benefits to same-sex partners increased the degree of legal protection to same-sex couples by recognizing them as family entities. Arguing that Brazilian society must accept the fact that same-sex couples form relationships that have the same characteristics as opposite-sex unions, several Brazilian courts have extended welfare benefits to gay and lesbian federal governmental employees on the grounds that the constitutional principles of formal and material equality require equal legal treatment of same-sex and opposite-sex couples. Anticipating the developments of the next period of Brazilian same-sex union jurisprudence, some courts began to refer to same-sex de facto partnership as a legal status comparable to those regulating opposite-sex unions.

The doctrine and jurisprudence define stable union as a public and stable intimate relationship between a man and a woman who, living together or in separate houses, intend to constitute a family without the formality of civil marriage. Several factors have compelled the Brazilian courts to classify same-sex unions as stable unions: the abandonment of the traditional legal formalism that has long characterized the Brazilian judicial system, the reference to progressive theories of legal hermeneutics that aims to achieve greater social justice, the classification of homosexuality as a prohibited ground for discrimination, the adoption of a functionalist notion of family comprehended as a space of intimacy rather than a mere unity of biological reproduction, and the convergence of the principles that regulate domestic cohabitation jurisprudence with the notions of formal and material equality. Judicial recognition of same-sex unions as stable unions has granted same-sex partners access to many categories of spousal rights such as property rights, social security rights, inheritance rights, partner benefits, spousal support, joint adoption, and the right to permanent visas for foreign partners.

As social resistance to legal recognition of same-sex unions increases in many parts of the world, Brazilian same-sex union jurisprudence provides viable solutions for the problems surrounding legal recognition of same-sex unions. The Brazilian experience suggests that an incremental approach to this legal issue is an effective strategy to avoid the backlash that has followed judicial decisions legalizing same-sex marriage in other parts of the world. Gradual extension of spousal rights to same-sex couples has allowed Brazilian courts to maximize the possibility of granting full marital status to same-sex couples, a process that has contributed to the transformation of the social perception of same-sex unions. The growing number of superior court decisions favoring same-sex couples in the last years suggests a possible unification of the jurisprudence to recognize same-sex unions as stable unions. A similar development resulted in the legal recognition of domestic cohabitation as a form of marital status in Brazil. Thus, this process may accelerate the enactment of legislation granting full equality to same-sex partners in Brazil.^[59]

Gay parades

The São Paulo Gay Pride Parade is, if not the biggest, one of the biggest events of its kind in the world. It is also one of the major tourist events in São Paulo. The event has official support from the city government of São Paulo. The Parade happens yearly, usually in June. It is the beginning of Brazilian winter, when temperatures are lower, but rains are rare. The Parada do Orgulho GLBT de São Paulo (Parade of Pride of Gays, Lesbians, Bisexuals and Transgenders of São Paulo) has been organized since 1999, with the aims of bringing visibility to social-sexual categories and fomenting the creation of public policies for homossexuals, bissexuals, transvestites and transsexuals.

The main strategy is to occupy public spaces so as to make possible an effective exchange of experiences, elevate the self-esteem of homossexuals and sensibilise the society towards the tolerance with differences. Year after year, the conscientization and education towards respect to diversity has generated positive results as far as bias eradication is concerned. During the Parade, the homossexuals, united, help construct and guarantee the plenitude of their rights.^[60]

The month of LGBT Pride in São Paulo was born from the experience of organizing parades and has added more activities with the years such as The Cycle of Debates, the LGBT Cultural Fair, the Citizenship Award in Respect of Diversity, and the successful Gay Day, that happens on the Saturday before the main parade.^[61] The Cultural Fair has been part of the LGBT Pride Parade events in the city since 2001. APOGLBT has recognized political and cultural initiatives which value the citizenship of gays, lesbians, bisexuals, transvestites and transsexuals, every year since 2001.^[62]

Besides São Paulo, several other Brazilian cities are organizing their LGBT parades, mainly in the capitals of the states, such as Rio de Janeiro with 1.5 million people^[63] and Salvador with 400,000 people.^[64] Below, a list of the main parades scheduled for 2006. The dates change every year. Dates quoted below are referent to 2006.^[65]

• June 5 - 8 Parade Pride GLBT in Brasília;
• June 5 - 9 Free Parade in Porto Alegre;
• June 10 - 2 Parade for Free Sexual Expression in Juazeiro do Norte;
• June 11 - Pride Parade in Florianópolis;
• June 12 - 3 Parade GLBT of Goiânia;
• June 12 - Parade of Vitória;
• June 19 - Parade of the Pride GLBT in Porto Alegre;
• June 19 - Parade of Niterói;
• June 24 - Parade of Diversity of Cuiabá;
• June 26 - Parade of Belém;
• June 26 - 4 Pride Parade of Campinas;
• June 26 - 2 Pride Parade of Palmas;
• June 26 - 4 Parade of Sexual Diversity in Fortaleza;
• June 26 - 10 Pride Parade of Rio de Janeiro;
• July 1 - 4 Parade of Diversity in Teresina;
• July 3 - 4 Parade of Pride GLBT in Uberlândia;
• July 9 - Lesbian Parade of Belo Horizonte;
• July 9 - 5 Gay Pride of Manaus;
• July 10 - Parade of Pride GLBT in João Pessoa;
• July 10 - Parade of São Luís;
• July 10 - 8 Parade of Pride GLBT in Belo Horizonte;
• July 10 - 4 Avenue of Diversity in Pelotas;
• July 15 - Parada Gay in Campo Grande;
• July 17 - Gay Parade of Natal;
• July 24 - Parade of Pride GLBT in Maceió;
• August 7 - Parade of Macapá;
• August 28 - 4 Parade of Pride GLBT in Aracaju;
• September 2 - 4 Parade of Diversity in Recife;
• September 4 - 4 Parade of Gay Pride in Salvador;
• September 11 - 4 Parade of Diversity in Boa Vista;
• September 11 - Parade of Cabo Frio;
• November 8 to 11 - 12th Meeting of GLBT in Brasília.

Summary table

Homosexuality legal
Equal age of consent
Anti-discrimination laws
Same-sex union(s)
Binational same-sex union(s)
Same-sex marriage(s)
Recognition of same-sex couples as registered partnerships
Adoption by same-sex couples
Gay men and women allowed to serve openly in the military
Right to change legal gender
Immigration equality for same-sex couples
Gay men and women allowed to serve openly in the political
LGBT pride parades legal
LGBT groups in the states
MSMs allowed to donate blood

See also

• Grupo Gay da Bahia
• Human rights in Brazil
• LGBT rights in South America
• LGBT rights in the Americas
• LGBT rights in the world

Notes

External links

Wikimedia Commons has media related to: LGBT in Brazil

• Información Turística con fotos, videos, mapas, actividades, diversión, playas y hoteles de la movida gay de Río de JaneiroLos Mejores Destinos de Viajes
• Grupo Gay da Bahia, 2003

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