There are countless government reports that attest to the seriousness of intolerance against LGBT people and gender-based violence in these spaces, which ends up making the fact that we are facing a real problem unquestionable. As an example, we have the "Report of Homophobic Violence" from the Secretariat of Human Rights, of the Presidency of the Republic, referring to the year 2012, which indicates that 3,18% of the almost 10 thousand rights violations occurred in schools (p. 31); in absolute numbers, they would be approximately 318 violations, or one every 21 hours.
Another study, called "Youth and Sexuality", developed in 2004 by UNESCO, indicates that 25% of Brazilian students interviewed would not like to have a homosexual classmate, a proportion that increases when parents are interviewed about the same issue (p. 280). Add to this the high school dropout rates among transvestites and transsexuals, and then we have an outline of the current situation faced by lesbians, gays, bisexuals, transvestites and transsexuals in primary and secondary schools.
Given this situation, the National Congress approved the National Education Plan (PNE) for the years 2014 to 2014, whose goal 2.4 states as follows: "strengthen monitoring and monitoring of access, permanence and educational achievement of beneficiaries of income transfer programs, as well as situations of discrimination, prejudice and violence at school, aiming to establish adequate conditions for students' academic success, in collaboration with families and public bodies for social assistance, health and protection of children, adolescence and youth".
In the wake of the PNE, states and municipalities must also approve their respective education plans. However, when it comes to combating sexist violence, homophobic and transphobic, extremely conservative proposals proliferated, supported mainly by religious people, which not only sought to suppress references to this issue, but also prohibited any attempt to address the issue with students. In cities like São Paulo, the City Council approved an education plan that removes any reference to combating discrimination based on gender, sexual orientation and gender identity, which tends to make demands for inclusion and respect invisible. Those who lose from this, of course, are the members of these minority groups and society as a whole.
And how can the law contribute to moving forward on these issues?
In the case of education plans that prohibited any discussion about discrimination based on gender, sexual orientation and gender identity, I believe it is possible to appeal to the Judiciary, as such plans would violate one of the objectives of the Republic, which is to combat all forms of of discrimination (art. 3, IV, CRFB/1988).
This has been done before. In August 2012, in the judgment of the Declaratory Action of Unconstitutionality numbered 0296371-62.2011.8.26.0000, the Court of Justice of the State of São Paulo invalidated Municipal Law 4.558/2011, of São José dos Campos, which precisely prohibited the dissemination in schools of any material that could "induce children to homosexuality" (sic). In its arguments, the São Paulo Court said that there is no particularity of that city that would legitimize the action of the local Legislature on the issue, which is the responsibility of the National Congress. Furthermore, the ban was so open in texture that it would allow opportunistic censorship of content by public managers. Finally, the Judiciary also stated that "The debate about homophobia and education for respect and tolerance of homosexual individuals are based on the Constitution of the State of São Paulo itself. Attempts to remove the discussion of this social issue from the school environment violate art 237, II and VII, of the Constitution of the State of São Paulo, since education is a joint duty of the State and the family, and not just this."
With this, the TJ-SP meant that tolerance is not a value to be taught only by the family, but also by the State: in a simpler way, there is an interest on the part of the State in promoting tolerance and respect for differences, which makes Any attempt to block the topic in schools is illegal.
However, when we deal with education plans that simply remained silent on the topic, it becomes more delicate to talk about intervention by the Judiciary, as we are talking about political choices and judges cannot intervene in all legislative choices. In other words, the Judiciary can even say what the Legislature cannot prohibit, but it cannot choose for the makers of the laws what society's priorities are.
There may be a loophole, however. These are the Declaratory Actions of Unconstitutionality by Omission (ADO). This is the legal tool used by the PPS when asking the Federal Supreme Court to suppress the failure of the National Congress to ratify a law that legally protects the LGBT community from the unique violence to which it is exposed. In the same way, could the state Public Ministry not ask the São Paulo Judiciary to recognize the unconstitutionality of education plans with regard to their duty to exhaustively include the fight against sexist and homotransphobic violence?
Thales Coimbra is a lawyer specializing in LGBT law (OAB/SP 346.804); graduated from the Faculty of Law at USP, where, between 2009 and July 2015, he founded and coordinated the Study Group on Law and Sexuality, and where he is currently studying a master's degree in the area of legal philosophy on homophobic hate speech; also works as a lawyer at the Arouche LGBT Citizenship Center, at São Paulo City Hall; and writes biweekly about Rights on the portal A Capa.
