Sexuality Policy Watch

Abortion and gender identity in Brazil in the midst of uncertainties

Captura de ecrã 2018-03-06, às 07.10.23

By Sonia Corrêa

Brazilian abortion and sexual politics continue ensnarled by the uncertainties of the overall political environment. On February 16th, a presidential decree determined an intervention in the public security system of the State of Rio de Janeiro, which will be under the purview of an Army general until December 2018.  The measure must be located in a long trajectory of public security militarization in the city, which can be retraced back to 1992 when,  during the UN Conference on Environment and Development, an army tank was placed at the entrance of the community of Rocinha. Subsequently, the military were  called back to Rio in 1994, 1997, 1999, 2003, 2004, 2006 and 2008, either to securitize the space for international events or to temporarily ´control´ poor areas affected by the war on drugs.  In 2010, the army joined the police in the operation that came to be known as the “invasion of the Complexo do Alemão”   whose shocking images have taken over the global pages and screens [1].  This pattern intensified in 2013 when the wave of street protests that swept the country coincided, in Rio,  with the finals of the FIFA Confederation Cup. The troops deployed to ‘secure this last game’, attended by various heads of states, remained in place to guarantee the safety of the recently elected Pope Francis I who visited the city, right after.  The next chapter was the full scaling up of securitization for the 2014 World Cup and the 2016 Olympics. [2]

Captura de ecrã 2018-03-06, às 07.55.14While, when seen through these lenses, the current intervention can be read as more of the same, on the other hand, it has been deployed under a distinctive and much more robust legal frame:  Article 21 (V) of the Brazilian Constitution that regulates “state of siege, state of defense and federal intervention”.  A  federal intervention, as defined by the Constitution,  is not to be necessarily conducted by military personnel. But this was the choice made by the Presidency and this inevitably stirred- up the spectres of the 1964-1985 dictatorship. In particular, after the intervention was approved by Congress, federal authorities made problematic declarations on unrestricted collective warrants and the Army Commander requested guarantees for the Rio intervention not to be later drawn towards a “new Truth Commission”.[3] Then, in its first incursion into a poor community of the Western zone of the city, the military photographed its dwellers when checking their IDs and this sparked sharp critiques from the most varied quarters.

The intervention, therefore, adds  shadows and uncertainties to the ongoing political crisis, which was insightfully analyzed by the legal scholar Oscar Vilhena in an article published by Folha de São Paulo in the following terms:

a consequence of the irrational multiplication and loss of representativeness of political parties, of the erosion of integrity of electoral processes that have been marred by wide and diffuse corruption schemes, and of the opportunistic action of various political and institutional actors. The presidential coalition model that, for more than two decades, allowed for the coordination of Brazilian politics, has become a co-opting machinery. The Supreme Court, which had been acting as a moderator, became more and more erratic, contributing to increasing insecurity and political instability… In this context, political and institutional actors have become less and less committed to the rules of the constitutional game, seeking to preserve their immediate interests at any cost. The enactment of federal intervention in Rio is only the latest example of reckless conduct, which will have as its only consequence bringing the military back to the center of Brazilian politics.

The assessment of abortion and sexual politics cannot gloss over this somber and disjointed conjuncture. If nothing else this long-standing pattern of securitization and militarization in democratic conditions is not at all favorable to any politics of decriminalization, be it of drugs or of abortion. Additionally, the federal intervention in Rio affected the Congress dynamics as no constitutional change can take place meanwhile  Article 21 (V) is being enacted. This is quite relevant from the point of view of abortion rights because, as previously reported by SPW, in late 2017 the country has been swept by protests against PEC 181/2015,  the “troy horse” constitutional amendment aimed at enshrining the right to life from conception in a provision that extends maternity leave to the mothers of premature babies. This mobilization halted and pushed its final voting to the 2018 legislature. But this processing is now suspended and the rule also applies to the two other constitutional amendments on the right to life from conception (PEC 29/2015  and PEC 164/ 2012). [4]

While, in the short run, this may reduce the urgencies of legislative advocacy, many other regressive provisions remain pending final voting – such as the Statute of the Unborn– which may unexpectedly jump out of the box, whenever the anti-abortion parliamentarian camp considers it necessary to supposedly please their voters. In these circumstances, it is highly positive to see the mainstream women´s magazine Marie Claire make the groundbreaking editorial decision to launch a campaign for legalizing abortion to mark 2018 International Women´s Day. [5]

On the other hand, however, another angle of the scenario that must also be examined is what Vilhena portrays as the erratic behaviour of the Supreme Court.  While his analysis focuses on recent rulings concerning criminal procedures, rules of appeal and institutional jurisdiction, signs of volatility can also be identified with respect to gender, sexuality and abortion-related matters, in relation to which the Court’s past conduct has been highly appraised and inspirational. [6]  For example, in September, quite unexpectedly, it ruled in favour of confessional religious instruction in the public educational system, in a political conjuncture when gender and sexuality curricula are being systematically attacked by dogmatic religious forces.   Then,  in December,  when Rebeca Mendes requested the Court’s authorization to undergo a legal medical abortion procedure, this urgent appeal was rejected on technical grounds. While this ruling did not address the right to abortion in substantial terms, it inevitably raised concerns with respect to ADPF 442 which calls for decriminalization of termination until the 12th week of pregnancy and is under consideration by the tribunal since March 7th, 2017. [7]

In the last few weeks, however, the Supreme Court appears to have once again taken the route of expanding rights in the domains of gender and sexuality. It began by granting the right of transgender prison inmates to be in correctional units corresponding to their gender of choice and then, on  March 1st, it delivered a final and unanimously positive decision in response to a petition that argued the constitutionality of medical diagnostics required for the change of gender identity, which was presented to the Court in 2008 by the Federal Prosecutor´s Office and counted with the support of many other instances such as of the Federal Public Defense Office.  As stated by Justice Luis Alberto Barroso in his vote, the decision is based on three core premises:

First: The right to equality without discrimination covers gender identity or expression. Second: Gender identity is a manifestation of the personality of the human person and, as such, it is the role of the State to recognize it, not to constitute it. Third: A person should not prove what she/he is and the state should not condition the expression of identity to any kind of model, even if strictly procedural.

Captura de ecrã 2018-03-06, às 11.52.49The decision potentially enables the exercise of the right to gender identity in conditions that are equivalent to those emanating from the 2012 Argentinean Gender Identity Law. Even when the road toward its full implementation may be rocky, this major breakthrough has been loudly and widely commemorated by the trans community and its allies, amongst others because it sets juridical limits to those who virulently oppose the realities of and the right to gender identity and expression. Even so, it does not entirely dilute the uncertainties and risks that continue hovering in the horizons of Brazilian politics.

Images of police and military operations in Rio  by João Pina (published by the NYT)

Other Images

  1. Army tanks exercise for the 1992 UN Conference on Environment and Development.
  2. Military personnel check photograph dwellers of Vila Aliança in Bangu, on February 2018.
  3. Keyla Simpson, ANTRA’s Coordinator, the National Association of Travestis and Transgender Persons, and other activists symbolically burn medical diagnostics to commemorate the Supreme Court decision.


[1] In a report published a few months later, Professor Philip Alston, the UN Rapporteur on Extrajudicial  Killings at the time, informed that more than 70 executions have occurred during the invasion.

[2] In 2014, the army stayed for six months in the Maré area. The operation that cost 200 million US$ dollars has not resolved the problems related to drug trafficking in the community.

[3] This definitely contributed to the overall climate of ‘state of exception”, even when General Villas-Boas has subsequently retreated from his declaration.

[4] The rule also affects the processing of the social security reform that is being greedily waited by the “market” since when Temer took over in 2016.  This is why some observers have concluded that the military intervention is a strategy to both respond to claims of order and security and delay this structural reform, whose approval has proved to be hardest than predicted.

[5] In that regard another paradox is to be registered. Luciana Temer, the daughter of the president who is a lawyer and a public attorney in the State of São Paulo is amongst the voices that will be featured in the campaign.

[6] The 2011 decision on same-sex civil unions, 2012 ruling on abortion in the case of anencephaly and the 2016 opinion on the criminalization of abortion broadly speaking.

[7 ] Another reason for concern in that respect it that the Chief Justice, Carmen Lúcia, has participated in the launching of the 2018 Fraternity Campaign, sponsored by the National Conference of Bishops. This year´s campaign theme is “Violence”  and one of its sub-topics is “abortion as violence against the unborn.

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