Overview

In Direct Action for Unconstitutionality by Omission (ADO) No. 26/DF, the Federal Supreme Court (STF) recognised the legislative delay in implementing the mandates to criminalise homotransphobia. On this occasion, the STF developed a concept of racism that includes prejudice and discrimination based on gender, sexual orientation, sex, etc. In effect, the Court ruled that Law 7.716/1989 would apply until the advent of a specific normative act. However, this was amended by Law No. 14,532/2023 to separate racial slurs from prejudiced slurs in the criminal code, while reallocating racial slurs in the legislation to combat racism without making express reference to any of the elements of human sexuality. In this context, we seek to answer the central question: does the failure to include homotransphobia in the amendment made by Law 14.532/2023 to Law 7.716/1989 represent a backlash effect or is it an unintentional silence on the part of the legislator? In the end, it is concluded that the absence of express mention in the legislative amendment does not consist of the aforementioned effect, but an acquiescence, albeit tacit, of the jurisprudential interpretation of the term racism.

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