Bureaucratising Sexual Rights in Brazil
At times, Brazil’s sexual rights revolution has been a quiet one. Increasingly, bureaucratic bodies have stepped in to counteract the lack of political openness to sexual rights and the slow progress of the courts. On 14 March 2016, the National Council of Justice (CNJ) — Brazil’s administrative judicial-oversight body — recognised in Resolution 52/2016 the right of same-sex couples to jointly register their biological children conceived through assisted reproductive technologies, such as in vitro fertilisation and surrogacy. The resolution also dispenses with the requirement of prior judicial authorisation for the registration of children, saving same-sex couples from adverse rulings by conservative judges. While the resolution is undoubtedly a remarkable advancement, it speaks volumes about the way sexual rights have been quietly bureaucratised in the country.
Several reasons have led to this administrative path. First, Brazil’s LGBTQI community has historically made use of the country’s administrative bodies to push for reforms. For instance, technocratic structures within health and education ministries were used in the past to advance sexual rights, culminating in the National STD/AIDS Program and the Brazil Without Homophobia campaign. Activists have also pushed forward local initiatives. Since 2015, the Mayor’s Office of the City of São Paulo established the so-called Transcitzenship (Transcidadania) program, which provides basic income and thus financial autonomy for around 200 transgender people. In a country with the highest number of transgender victims of murder in the world, such initiatives promoting trans peoples’ rights are not only admirable but urgent.
Second, unlike other countries such as Colombia and South Africa, direct access to the highest court in the land — Brazil’s Federal Supreme Court (STF) — is limited to a few high-level litigants such as national confederations, political parties, and the Attorney General (Article 103, Federal Constitution of 1988). Cases brought by other litigants only reach the STF through unreasonably delayed appeals. This influences whether movements take the constitutional litigation route or not.
Yet, Brazil’s STF has some important LGBTQI-related cases to decide, including cases concerning the right to official registration of gender reassignment without the need for surgery and the right to access a public toilet according to one’s own gender identity. In March 2015 the Court itself recognised the right of a same-sex couple to jointly adopt a child. But the reasoning simply copied and pasted previous case law and while it might influence other courts, the decision is technically only applicable to the parties in the case.
Consequently, CNJ’s resolutions and other smaller initiatives by local bureaucracies have taken the lead in advancing sexual rights. In May 2013 CNJ recognised (in Resolution 175/2013) nationwide same-sex marriage — making Brazil a peculiar case where same-sex marriage was not directly ordered by the judiciary or the legislature. CNJ’s Resolution 175 sought to harmonise the divergent jurisprudence of the country’s courts, on the basis of two decisions of the country’s top courts: one recognised de facto same-sex union as constitutional nationwide whereas the other only recognised same-sex marriage between the parties of the case. Resolution 175 is now being challenged before Brazil’s Supreme Court, which presents a good opportunity for the country’s apex court to resume its leading role in making LGBTQI equality clear, once and for all.
Small changes do matter, even when they seem too local or too bureaucratic. They matter because they come to the rescue of historically marginalised individuals on the ground. In dark times of closed political spaces and limited access to constitutional review, the more allies the LGBTQI movement gets, the merrier.
What remains to be seen is how each branch of the state will react to other calls for change. Recently, in what it has been called Brazil’s feminist spring, women under the inspiring leadership of women of colour, have taken to the streets to fight against legislative proposals further restricting their already limited abortion rights. Yet, when pursued through bureaucratic routes, the recognition of sexual and reproductive rights can be both fragile and selective. Fragile because it makes vulnerable groups depend on the sympathy of administrators (which can change without warning) and selective because bureaucracies, while sometimes embedded in participatory rulemaking processes, do not necessarily listen to the voices of the people. History has taught us that bureaucrats, politicians and judges alike will be better off if they follow the winds of change.