ATIVISMO JUDICIAL NA DECISÃO DO STF EM EQUIPARAR A TRANSFOBIA E A HOMOFOBIA AO CRIME DE RACISMO

Abstract

The present work aims to reflect on the conduct of the STF (Supreme Federal Court) regarding the inertia of the legislative power in drafting a specific law for criminalizing the crime of homophobia and transphobia, from the perspective of direct action of unconstitutionality by omission (ADO ) No. 26 and the Writ of Injunction (MI) No. 4733. Thus, initially we will bring a brief history of homosexuality in Brazil, as well as the concept of racism and transphobia and homophobia. It will address the Theory of Separation of Powers, being a democratic and intrinsic principle for better harmony between the Powers of the Republic, also dealing with the advancement of the Judicial Activism Institute and its consequences, in cases involving Constitutional rights. The legitimacy for the judgment of ADO nº 26 by the Federal Supreme Court and Injunction Writ nº 4733 will be analyzed; and consequently analyze the position of the STF ministers and the concept related to the studied topic. Finally, the research concluded that with such a long legislative delay by the National Congress, it was necessary for the Supreme Court to open a vote for this situation, having as legal basis the ADO n° 26 and MI n° 4733, taking the decision to equip crimes of homophobia to the crime of racism (Law 7,716/89) contemplating crimes resulting from prejudice against the LGBTQIA+ population.