A MORA LEGISLATIVA E O ATIVISMO JUDICIAL DO STF NO JULGAMENTO DA ADO 26

Abstract

The masked violence and the delay in creating a penal type that allows the effective punishment of discrimination against LGBT groups is, when observed more closely, a systemic problem that exposes the neglect of the Brazilian state. When approached at a statistical level, violence against the LGBT community in Brazil reaches stratospheric levels, which, even with sparse and fragile public policies, are still deficient in minimally reporting with reliability the serious reality that is perpetrated in the homotransphobic context. While approached at a political level, the legislative delay in Brazil proves to be effective in maintaining the status quo. Not admitting the evolution of any legislative proposition that, even in a minuscule way, can ensure the minimum dignity to those who suffer discrimination by gender identity or sexual orientation. Given the situation of deliberate inaction, the Federal Supreme Court was called upon to take a stand in the Direct Action of Unconstitutionality by Omission n. 26, where the unconstitutional legislative delay and an action on the part of the Court, in criminalizing discriminatory conduct towards the LGBT community, were questioned, for equating the conduct provided for in the constitution as racism. In this light, judicial activism in the Brazilian context, its causes and characteristics are analyzed. Weighing the interpretive methodological perspective to the neutral and institutional perspective, in the study of the phenomenon. It is questioned, therefore, how activism is present in ADO n. 26, for analyzing the votes of the ministers present and how they demonstrated a commitment to a neutral and institutional vision presented earlier. Proving, those of the majority current, that activism was present in a healthy way, to the decision and votes. Seeking to fill the legislative vacuum by encouraging the movement of legislative projects, influencing the delay, and not leaving those who most need a positive interference from the State, guaranteeing a punishment worthy while the legislative delay does not dissipate in completeness, transmuting in a typification of crime the LGBTphobia.