Criminalização da homotransfobia pelo STF: uma análise do princípio da necessidade em face da legalidade

Abstract

Part of the doctrinal disagreements about the legality of the trial by the Federal Supreme Court (STF) of the Direct Action of Unconstitutionality nº 26/DF and Writ of Injunction No. 4,733/DF, which determined the application of the Law 7.716/1989 to cases of homotransphobia. First, it proposes to delimit the concept of sexual diversity and to investigate the symbolic, institutional and of homotransphobic violence in Brazil, from the perspective of post-structuralism, to understand the way in which discrimination is supported by the Law and by the State. Then, it analyzes the delay of the National Congress in legislate on sexual rights in favor of vulnerable groups. Hence, study the posture adopted by the Judiciary in the face of demands for recognition of rights of the LGBTQ+ community, which resulted in the express adoption by the STF of the its countermajoritarian role in defense of sexual diversity. Afterwards, analyze the current constitutional criminal law and the possibility of criminalizing homotransphobia, respecting the general principles proposed by the former, as well as as demonstrated by the existence of extensive interpretation in criminal matters within the national legal system. Finally, it makes considerations about the arguments controversial issues of the STF ministers and proposes to present what would be the way less burdensome and more effective in protecting the legal interests of sexual diversity through criminal law.