Recognition of same-sex unions in Brazil occurs nationally since the creation of the new constitution.[1] Brazilian same-sex couples have achieved a considerable degree of legal protection in the last twenty years, a consequence of several judicial decisions extending to same-sex couples the same status and rights afforded opposite-sex couples. These decisions represent one of the most important developments in the recent history of Brazilian equal protection jurisprudence because they establish important precedent for future group oriented litigation. Abandoning the traditional formalism that has long prevented greater social inclusion of disadvantaged groups, several Brazilian courts have ruled that same-sex couples should have access to equal legal treatment. These decisions have provided a considerable degree of legal protection to a form of adult relationship of which many Brazilians strongly disapprove. This is all the more significant given that Brazilian courts have traditionally played a minor role in the process of construction and expansion of citizenship. In recognizing their importance in the process of social change, Brazilian courts have significantly contributed to the transformation of the social status of gays and lesbians, a group that faces severe discrimination in Brazil.[2]
There is continued debate in the Brazilian legislative and judicial branches about the legal status of same-sex couples. While there has been a bill in Congress since 1995 which aims to establish same-sex civil unions, which has never been put to a vote, a 2006 decision by the Superior Court of Justice, states that same-sex couples are de facto partners. A meeting to discuss LGBT rights and battle homophobia was held in May 2008 and involved representative from the president's office, cabinet members and legislators. The country's president, Luiz Inácio Lula da Silva recommended that the agenda of this meeting include the discussion on the recognition of same-sex relationships and proposals to allow gay and lesbian couples to adopt children.[3] But there are judicial decisions allowing both partners adopting together.
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Court rulings
Marriage is a federal matter and states can't legislate on this. Federal law and the federal Constitution ignore same-sex couples, not recognizing nor forbidding their recognition, except for the definition of marriage as between a man and a woman. As the debate in the states and the Congress goes on, some rights have been given to same-sex couples as a result of court decisions since 1998. These rights granted through judicial decisions cover matters such as inheritance, immigration, and state pension and welfare benefits.[4] Brazil allows social security benefits for partner of homosexual private worker (there is a judicial decision against National Security Social Institute), but this case has not finished yet.[5] Many states and cities has given the same social security rights for homosexual partner of their public servants.[6][7][8][9]
Civil unions, de facto partnerships, "stable unions" under common law and actual marriage are the four "categories" for a relationship in Brazil. No same-sex couple is yet considered married in Brazil, but there are varying levels of debate about the other categories. Homosexual Brazilians who can prove that their relationship is a "stable union" will be treated by the National Social Security Institute no differently than a married couple in cases of retirement or death. However, there is not a consensus about the definition of stable union. The National Social Security Institute's policy change is the result of a recent court ruling (pending final decision). Brazil allows foreign partners of its homosexual citizenry to receive residency permits (there are many judicial decisions,[10][11] there is a bill[12] and there is a ordinance of Conselho Nacional de Imigração allowing this).[13]
On July 12, 2005 a São Paulo judge ruled that a same-sex couple could adopt children. It is believed the case is the first in Brazil where a gay couple has been allowed to jointly adopt a child. However, because Brazil has a civil law system, this case had no effects beyond this individual case. João Gilberto Gonçalves, a federal prosecutor, filed a Public Civil Action in July 2005 charging the country's prohibition of same-sex marriage as being opposed to the 1988 constitution, which outlaws "prejudice as to origin, race, sex, colour, age and any other forms of discrimination." The 99-page[14] Action document mentions several court rulings and newspaper reports on gay rights. The court ruling decided the matter was not to be decided in court: it should rather be settled by Congress. Had the prosecutor's arguments been accepted by the judge, the decision would have immediately allowed same-sex marriage in all Brazilian states. The state of Rio de Janeiro gives same-sex benefits to the partners of government employees. The Court of Justice of Rio de Janeiro suspended this law and the governor Sergio Cabral Filho ask to Supremo Tribunal Federal (the constitutional court) deciding about it.
Bill No. 1151
A bill on gay civil unions was introduced in Congress by former congresswoman Marta Suplicy. Bill project 1151, which aims to change federal law in order to establish same-sex civil unions, has been pending in the House since 1995 and was the theme of the 2005 São Paulo Gay Pride Parade. The bill has been debated many times, but has never been brought to a vote. Then-Speaker of the House Severino Cavalcanti was expected to end debate and bring the bill to a vote in late 2005, but corruption charges forced his resignation. Despite the anticipated vote, Calvalcanti strongly opposed the bill.
Presidential position
Brazilian president Luiz Inácio Lula da Silva stepped up to defend LGBT rights in an interview to TV Brasil in 2008. For the first time ever, Lula said loud and clear that he is in favor of civil unions, and that it is time to stop being hypocritical about the subject.
| “ | "There are men living with men, women living with women, and many times they live a balanced and even extraordinary life," stated the president. "The one thing that really bothers me is the fact the the politicians who are against civil unions never refuse a gay vote, and the state (which denies gays of civil unions) does not refuse taxes paid by homosexuals. Why is that? The only thing that matters is that these individuals are Brazilian citizens, and respect the Constitution. The rest is up to them, and I am in favor of civil unions," he added. | ” |
On more gay rights advances, this week the Superior Court of Justice ruled that there is no reason why a stable same-sex couple cannot be recognized as a family under the country's laws. This was the first time the high court considered the rights of a homosexual couple under family law, rather than patrimonial law.[15]
See also
- LGBT rights in Brazil
- Marriage, unions and partnerships by country
- List of LGBT rights by region
- Timeline of LGBT history
- Homosexuality laws of the world
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Notes
- ^ LGBT civil unions in Brazil
- ^ Same-sex unions - Brazil - Aspects
- ^ Currently, gay couples may adopt but only one partner is recognized as legal guardian as a single person, Brazil President Calls Gay Leaders To Landmark LGBT Rights Summit, 365gay.com,6 December 2007
- ^ Countries that recognise or proposed to recognise same-sex relationships, Stonewall UK
- ^ http://www.jusbrasil.com.br/noticias/134724/inss-deve-equiparar-homossexuais-e-heterossexuais-em-todo-o-pais
- ^ http://www.athosgls.com.br/noticias_visualiza.php?contcod=20777
- ^ http://www.ipreddiadema.sp.gov.br/infoarq/informativo-nov05.pdf
- ^ http://ultimainstancia.uol.com.br/noticia/35775.shtml
- ^ http://www.joaopessoa.pb.gov.br/noticias/?n=7078
- ^ http://revistaepoca.globo.com/Revista/Epoca/0,,EDG60663-6014,00-UNIDOS+PELO+VISTO.html
- ^ http://www.sistemas.aids.gov.br/imprensa/Noticias.asp?NOTCod=52191
- ^ http://zerohora.clicrbs.com.br/zerohora/jsp/default.jsp?uf=1&local=1&newsID=a1834954.xml
- ^ http://glsplanet.terra.com.br/trilegal/
- ^ http://www.prsp.mpf.gov.br/taubate/acp/acp_casamento.pdf Full text of the Ação Civil Pública asking the recognition of same-sex marriage in Brazil (Portuguese)
- ^ Opinion of Lula about LGBT rights
External links
- (English) [1] — Full text of Bill Project 1151 (Unofficial Translation)
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