RIO DE JANEIRO / MEXICO CITY, July 20 (Thomson Reuters Foundation) – A gay man who grew up in Brazil, Afif Sarhan was banned from donating blood for most of his life.
“I thought, ‘Why is my blood lower than others?'” Sarhan, a 41-year-old civil servant from the southwestern state of Goias, told the Thomson Reuters Foundation. “It is my right as a human being to help people and stay who I am.”
That all changed in May when the Brazilian high court overturned the ban on gay men who gave blood – the latest in more than half a dozen decisions made in support of LGBT + rights.
Over the years, the court has been a major driver of LGBT + achievement in Brazil, with little action from Congress in a very religious country where the Catholic Church and popular evangelical Christian movements often criticize gay rights.
With President Jair Bolsonaro, a former army captain famous for making homophobic statements and praising the 1964-1985 state dictatorship, becoming increasingly critical of the judiciary, some fear that the progress of LGBT + could now be at risk.
The conservative leader said last month that the Supreme Court “committed an offense” and it was time to put “everything in its proper place” after the court passed an investigation into the claims Bolsonaro made with the police for personal motives.
The court, commonly known as the STF, also investigated demonstrations supported by Bolsonaro who called for military intervention in politics and the closure of the Supreme Court and Congress, triggering concerns for young Brazilian democracy.
In one protest last month, Bolsonaro supporters threw fireworks toward the Supreme Court building. A protest leader, who threatened violence against several Supreme Court judges, was later arrested.
“Bolsonaro’s attack on the STF is a direct and frontal attack on one of the pillars of democracy,” said David Miranda, a gay congressman with the left opposition Socialism and Freedom Party (PSOL).
“With some subtle decisions and constitutional changes, we can lose the rights we have conquered.”
A Bolsonaro government spokesman did not respond to requests for comment.
The LGBT + problem remains divisive in Brazil, which has the largest Catholic community in the world and a growing evangelical population among the urban poor, which shifts politics to the right.
The country is also one of the most dangerous in the world for gays and trans, with 297 LGBT + murders last year, according to watchdog group Grupo Gay da Bahia.
Because of widespread conservatism in Brazilian politics and society, most activists turn to the courts instead of Congress to secure LGBT + rights.
“The Brazilian legislature is occupied by conservative forces and has a very large religious fundamentalist bench,” said Renan Quinalha, a law professor at the Federal University of Sao Paulo.
“(So) LGBT groups have begun through the Supreme Court, carrying out strategic litigation and advocacy to achieve victory in justice.”
The strategy worked.
This year, the Supreme Court allowed the Netflix streaming platform to continue showing films that portray Jesus as gay, despite national protests, and also imposed local laws prohibiting teaching about gender and sexual orientation in schools.
He also chose to criminalize homophobia and transphobia last year, and in 2018 decided that the government could not ask trans people to undergo operations to legally change their gender.
When Congress tried hard to pass a gay marriage law, the judiciary took the lead to legalize it in 2013.
Despite Bolsonaro’s war of words, legal experts say it is not possible to interfere directly with the court. “It looks like I’m not (the Supreme Court) at risk,” Quinalha said.
“I think the STF succeeded in positioning itself very well before the government … investigating threats and calls for violence against the minister and the court itself.”
But activists fear that LGBT + rights will be canceled ahead of the 2022 election because Bolsonaro will appoint two new judges to the 11-member Supreme Court.
In Brazil, Supreme Court judges retire at the age of 75, with the president filling in the blanks. In 2020, Celso de Mello, the longest serving judge in retirement, will retire, followed in 2021 by Marco Aurelio Mello.
If Bolsonaro is re-elected, he will be able to make two more promises in 2023 because two more judges will reach retirement age.
“If you have a different majority in the Supreme Court, you can change the previous decision,” Quinalha said.
And it’s not just a matter of having a conservative majority in court. In Brazil, a single Supreme Court judge can withstand an unlimited ruling by saying they need more time to review the case before they vote.
In urgent cases, judges can also make unilateral decisions, such as issuing orders, that apply until all courts have time to vote, which can take years.
While the legal strategies of LGBT + activists have provided a historic victory, observers are concerned that they are not deeply rooted like the laws chosen in Congress, which attract more public debate, lobbying and media coverage.
Popular opinions about LGBT + rights are still deeply divided in Brazil, unlike neighboring Argentina, where gay marriage passed through Congress in 2010 and sparked heated public discussion.
“In places where there are social debates around the rights of LGBT people, the process of discussion and debate makes it easier for people to adjust to new realities,” said Leandro Ramos, Brazilian director for LGBT + All Out rights groups.
“The fact that this debate has never taken place in Congress (Brazil) has made these rights more vulnerable.”
Brazilian lawmakers and the constituencies they represent rarely have to debate LGBT + issues, potentially making the victory fought for more vulnerable under a conservative court.
“The law is more consolidated because it also expresses debate in public opinion … so it’s more difficult to modify,” Quinalha said.
For now, LGBT + Brazil enjoys the newly discovered rights granted to them by the country’s highest court.
Sarhan, a civil servant in Goias, returned to give blood last month, six years after being rejected – this time, his sexual choices never arose.
“It’s very nice to contribute, and I don’t have any questions about sexual orientation,” he said.
Reported by Oscar Lopez @oscarlopezgib and Fabio Teixeira; editing by Katy Migiro. Please credit the Thomson Reuters Foundation, the charity branch of Thomson Reuters, which covers the lives of people throughout the world who are struggling to live free or just. Visit http://news.trust.org