Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Brazil LGBTI Resources

 (See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists) 

Same-sex sexual acts are legal in Brazil and the age of consent is equal for heterosexuals and homosexuals. The Federal Supreme Court of Brazil approved same-sex civil unions in 2011 and LGBT adoption in 2010. Brazil has no laws on hate crimes. A bill criminalising homophobia was recently rejected by the legislature, after a 10-year process of discussion in the National Congress.

CASE LAW

Halmenschlager v Holder, Attorney General, No. 08-9514, US Court of Appeals 10th Cir., 31 July 2009: the US Court of Appeals denied asylum, albeit on questionable grounds. The court held: ‘Unquestionably, Halmenschlager showed that homosexuals may be mistreated in Brazil. But neither his testimony nor the documentary evidence requires a finding that he faces persecution if returned to Brazil […] The unvarnished fact that 180 homosexuals were killed in one year is not remarkable in a country of over 180 million, particularly when the report does not identify the killings as murder, contains no mention of the reason for the killings or any description of the perpetrators’.

Melo v Canada (the Minister of Citizenship and Immigration) [2008] FC 150: the Federal Court of Canada granted asylum to two gay men fleeing Brazil. The court ruled that the legal position of ‘homosexuals’ in Brazil is not conclusive on their real life situation. It relied on documentary evidence supporting a finding that state protection of ‘homosexuals’ is inadequate.

Decision No. 071743935 [2007] RRTA 301: the Australian Refugee Review Tribunal denied international protection on the grounds that ‘alienation and ostracism, discrimination, dislike and [the applicant’s] inability to lead a happy life’ do not amount, either singularly or cumulatively, to sufficiently serious harm to trigger a well-founded fear of persecution. The tribunal relied on evidence that anti-discrimination laws are generally enforced in Brazil for its finding.

PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT

Generally, laws prohibiting discrimination on grounds of sexual orientation are upheld in Brazil. Millions of the Brazilians identify as LGBT. Moreover, Sao Paolo hosts the world’s largest pride parade.

However, despite legal guarantees, homophobic violence remains at levels of concern in the country. LGBTQ Nation recently reported that 44% of the world’s anti-LGBTI violence occurs in Brazil.

The Immigration and Refugee Board of Canada has provided detailed evidence of violent incidents in its 2008 report. More recently, the 2012 report entitled State-Sponsored Homophobia and the University of Oxford’s Forced Migration Review referred to continuing incidents of homophobic violence, including the murder of gays and lesbians. Over 4,800 people were targeted and 310 people were killed between 2012 and 2013, according to Global Post.

Human Rights Watch reported that in 2013 the national Human Rights Ombudsman received over 3,000 complaints of violence against LGBTI persons, 166% more than the number of complaints received in 2011.

The Human Rights Council welcomed Brazil’s steps to afford legal guarantees to LGBTI populations during the country’s 2012 Universal Periodic Review. However, one delegation found that the ongoing incidents of violence mandate a need for further initiatives. The 2013 ILGA Report on State-Sponsored Homophobia also mentions that members of churches and religious communities in Brazil’s parliamentary majority exert strong political pressure against LGBTI groups, which could account for the rejection of the anti-homophobia bill.

NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

We currently have no NGOs providing support to LGBTI persons in Brazil listed here, but welcome suggestions. 

COUNTRY OF ORIGIN SPECIALISTS

Henrique Rabello de Carvalho

Email: henrique [dot] carvalhoataol [dot] com

Henrique Rabello de Carvalho is a lawyer from Rio de Janeiro, Brazil, specialising in Gender and Sexuality at the State University of Rio de Janeiro (UERJ) and in Legal Philosophy at Universidad Carlos III (Spain). He holds degree in law from the Pontifical Catholic University of Rio de Janeiro and is a Ph.D. candidate at University of Buenos Aires Law School.
He served as International Refugee Law expert for the Brazilian Ministry of Justice and the United Nations in Brazil from 2007 to 2010. Henrique has acted as expert consultant to a number of refugees persecuted for reasons of political opinion and/or sexual orientation from countries in Africa and Latin America. He has completed expert reports and petitions for asylum cases which have included minority rights such as LGBTI rights, women's rights, and ethnic and religious groups.

He is a member of the Brazilian Bar Association, the American Society of International Law (USA) and the Human Rights Lawyers Association (UK). He is also a member and attorney of the LGBTI Rights Commission of the Brazilian Bar Association, and professor of International Law at the Centre for Women Rights in Rio de Janeiro. His research focuses on Sexuality and the Law, International Refugee Law and LGBTI rights in Iran and Iraq.

Researched by: Minos Mouzourakis
minosmouzourakisatgmail [dot] com

 

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