We are pleased to reappear the "Rights" column. Now, it has a new format. She is more dynamic and values subjects that reflect her reality.
As a lawyer, I feel honored by the partnership and I commit to my commitment to the issues we will address, offering the best content to the best audience!
Premieres usually call for big topics and events. Premieres mark the beginning of a cycle and are worthy of celebration. For this reason, we decided that this first contact of ours will provide a general overview of the advances regarding LGTB rights in Brazil. I hope you can identify and express your doubts, suggestions and compliments.
Well then. Who has never felt the target of prejudice?
I believe that every human being has felt powerless when faced with the feeling of being different, whether because they are fat, because they are older, because they are homosexual, because they are black, because they are short.
No matter the reason, prejudice exists and you have experienced it in some way, whether through job promotion that wasn't for you due to your orientation, or through racial discrimination, it doesn't matter the reason. Prejudice is a plague that manifests itself and hurts. If for now it causes rejection, at others it causes progress.
It is through the indignation of those whose souls have been washed and their hearts exposed that many are allowed to leave the margins, as minorities never were.
It is because they rebelled and no longer accepted living on the margins that the Judiciary has shown significant advances with regard to same-sex rights.
Well, now the area of Law that deals with rights involving issues related to homosexuality has a name. This is the biggest and most important advance of this past year.
Dedicating studies and research to a specific legal area requires more attentive and sensitive professionals, otherwise we risk making decisions that do not achieve justice. After all, how many stories of injustices committed against homosexuals do you know? How many are unable to be included as dependents in their partner's health and dental plans? How many have lived in a same-sex union for years without the State recognizing that affection unites them and that in itself is what constitutes the main pillar of the family entity?
2010 was a year of great achievements for same-sex rights and 2011 continues like this.
It was at the end of March this year that the 1st National Congress of Homosexual Law was held. This implies stating that the reality facing homosexuals has drawn the attention of legal professionals, who now come together to address and debate topics such as same-sex adoption, same-sex family, parental alienation, power-duty of alimony, inheritance law, transsexuality, recognition same-sex unions, criminalization of homophobia, bullying and harassment in work relationships, in addition to procedural and social security aspects.
As we noted, matters will not be lacking for the Judiciary, nor will our column.
The fight for same-sex rights is vast and complex, as there are notoriously numerous rights sought due to the non-existence and, at times, resistance, of their recognition before the Judiciary.
In a major step forward, the Ministry of Finance, through an act by Minister Guido Mantega, supported by guidance from the Attorney General's Office of the National Treasury, issued opinion 1.530/2010, authorizing the inclusion of homosexual partners as dependents for tax deduction purposes in the tax declaration. Income Tax 2011. However, the decision is already the subject of a popular action in the Federal Court, as deputy Ronaldo Fonseca (PR -DF) asks that the act of the Minister of Finance be suspended, on an injunction basis. He claims that our legislation only recognizes the stable union between a man and a woman, above all, that the act brings losses to public coffers. I'm surprised by the thought that deductions for heterosexual couples are not harmful... For a few seconds, I felt a sense of prejudice, could it be?
Regarding the recognition of same-sex unions, it must be remembered that the action that could declare treatment as a family entity for homosexual couples is pending in the STF (Supreme Federal Court – our highest and final court in Brazil), as until the are treated as a de facto society. Do you know what that means? The union is not recognized, but in the event of separation, the assets will be divided as if it were a union of assets, as a type of business company. All family intentions and affection that have united that couple for now are removed.
I value the decisions that have encouraged other judges and courts regarding the (re)recognition of love between people of the same sex. I believe in the day when 'normality' will be achieved in these processes.
Prejudice or not, note that knowledge of MARRIAGE is not required, but its recognition as a stable union. Imagine if it were... An alternative channel is the public registration, at a notary's office, of the deed of stable union by homosexual couples. The document allows these couples to share assets and benefits, such as health plans and life insurance.
There is no statistics on the number of deeds of stable unions signed between homosexuals in Brazil, but as reported by the magazine " Veja ", on 10/03/10, only one notary's office in São Paulo, the 26th notary's office, registered, in 2009, 202 of them – four less than the deeds drawn up for couples formed by men and women.
I clarify that, in practice, the difference between the stable union deed and the marriage certificate is the name only. Its effects are the same.
With regard to social security rights, Social Security, through the INSS, issued Ordinance 515/2010, establishing that the treatment of dependents for social security purposes must be interpreted in such a way as to cover stable unions between people of the same sex. Now we seem to move forward.
We must not forget a historic decision by the Judiciary. There was recognition of the adoption of children by a homosexual couple from Bagé (RS). To date, it is the only decision that has been recorded, dating back to 2010. Are any other couples eligible?
Finally, it must be informed that an action is being processed by the STF that could recognize the right of transsexuals to replace their first name and sex in the civil registry, regardless of undergoing gender reassignment surgery. It seems fair if we consider that the purpose of the law is to protect the individual against humiliation, embarrassment and discrimination due to the use of a name. This same purpose must achieve the possibility of changing the first name and sex of transsexuals.
What has been practice so far is that the surgery is performed and the name change is subsequently recognized. In particular, I argue that the inconsistency between the person's identity and their civil registration data should not be preserved. I do not believe that surgery grants the individual the status of transsexual and, therefore, the fundamental right to gender identity justifies changing the first name, regardless of surgery, whenever the claimed gender is not based on biological sex.
For obvious reasons, the conviction of belonging to the opposite gender to the biological one must be observed, that it is assumed that they will no longer change their gender identity, and that these requirements are certified by a group of specialists who evaluate psychological, medical and social aspects.
Without becoming extensive, in an attempt to exhaust the issues, these were the main advances in homosexual rights before the Judiciary in recent years.
I promise to better explore the topics that have remained superficial here, but not before discussing with you the legal doubts you have. Please manifest!
Strong hug!
* Jeferson Gonzaga is a lawyer, registered with OAB/SP 307.936. He works on research and processes focused on same-sex rights.
MSN: drjeferson@live.com.
