*This is an AI-powered machine translation of the original text in Portuguese.

** Originally published in JOTA.

Recently, the Superior Court of Justice (STJ) issued a significant ruling regarding the characterization of homophobic insults, even when the victim does not identify as homosexual. In the judgment of Habeas Corpus 844.274, the STJ stated that "the fact that the victim is heterosexual does not mean they cannot suffer from homophobia."

The court concluded that the insult was established when the accused, believing the victim to be homosexual, used pejorative and prejudiced terms aimed at a minority and stigmatized group. This decision highlights the importance of protecting the dignity of individuals from offenses based on stereotypes and prejudice, regardless of the perceived sexual orientation's accuracy.

In Brazil, protection against homophobic insults is supported by the Supreme Federal Court's (STF) ruling in the Direct Action of Unconstitutionality by Omission (ADO) 26, which recognized the unconstitutional omission of the National Congress in criminalizing homophobia and transphobia.

The STF ruled that "acts of homophobia and transphobia constitute concrete manifestations of racism, understood in its social dimension" (STF, ADO nº 26/DF, Rel. Min. Celso de Mello). Thus, in addressing the present case, the STJ reaffirmed that the homophobic insults made by the accused constituted an injury, regardless of the actual sexual orientation of the victim.

The court emphasized that the crime of qualified insult, provided for in Article 140, § 3, of the Penal Code, is characterized when the offense affects the victim's subjective honor using prejudiced elements related to the identity of vulnerable and minority social groups.

This understanding by the STJ is in full alignment with the jurisprudence of the Inter-American Court of Human Rights (IACHR), particularly in the case of Flor Freire vs. Ecuador (series C, no. 315). In this ruling, the Inter-American Court addressed discrimination based on the perception of sexual orientation, even when that perception is incorrect.

In the case, Homero Flor Freire, who did not identify as homosexual, was subjected to discriminatory treatment by his military superiors, who believed him to be homosexual. This perception resulted in severe disciplinary actions that profoundly affected his career and dignity.

The IACHR stated that:
"It has established that the sexual orientation of individuals is a category protected by the Convention" (Para. 118) and that any differential treatment based on this perception should be considered discriminatory, emphasizing that “[p]erception-based discrimination has the effect or purpose of nullifying or impairing the recognition, enjoyment, or exercise of human rights and fundamental freedoms […] regardless of whether the person self-identifies with a specific category.”

Thus, the main focus is on the discriminatory conduct of the aggressor, who acts based on perceptions—correct or incorrect—about the victim's identity, violating fundamental rights, as sexual orientation, whether real or perceived, is a category protected by Article 1.1 of the American Convention on Human Rights.

This perspective is echoed by other international bodies, such as the Committee on Economic, Social, and Cultural Rights in General Comment 20, para. 16, the African Commission on Human and Peoples' Rights in the Resolution on the Protection against Violence and Other Human Rights Violations Based on Sexual Orientation or Gender Identity, and the United Nations High Commissioner for Human Rights in the Report on Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on Their Sexual Orientation and Gender Identity.

This understanding is crucial for the effective protection of LGBT people and those who, although not identifying as such, are targets of discrimination and prejudice based on stereotypes. In alignment with this, the STJ stated that "for the crime to be configured, it is enough that the offense is directed at a person, injuring their dignity and decorum, and that it contains hateful terms about someone’s sexual orientation or gender identity, whether real or perceived."

Additionally, the STJ emphasized that while freedom of expression is fundamental, it cannot be used as a justification for spreading hate speech aimed at demeaning or discriminating against vulnerable individuals or social groups.

The court concluded that even though "[t]he right to freedom of expression [is] one of the most valuable in the Brazilian legal system, [...] freedom that spreads hatred and denies equality among people is incompatible with the Democratic State of Law." This conclusion reflects a clear understanding that human dignity and protection against discrimination must prevail over freedom of expression when it is used to perpetuate prejudice and inequality.

The convergence between the STJ and the Inter-American Court's decisions reinforces the importance of protecting the rights of LGBT people and all those who may be victims of discrimination based on incorrect perceptions.

The STJ's decision, aligning with the IACHR's jurisprudence, demonstrates a firm commitment to promoting equality and defending fundamental human rights. Recognizing that homophobic insults can be perpetrated regardless of the victim’s actual sexual orientation is a significant advancement, in line with constitutional principles and international human rights treaties.