Minorias sexuais e estado de coisas inconstitucional: a LGBTQIAPN+Fobia estrutural na realidade social brasileira

Abstract

The persistent omission of the Brazilian State in the face of the exclusion of sexual minorities reveals a structural pattern of unconstitutionality that undermines the integrity of the democratic regime and the effectiveness of fundamental rights. In this context, this study investigates the legal, political, and theoretical feasibility of declaring a State of Unconstitutional Affairs (ECI) concerning heterocisdiscordant sexualities in Brazil, considering the structural configuration of LGBTQIAPN+phobia in Brazilian social reality. The analysis begins with the denaturalization of the categories that compose human sexuality, distinguishing between biological sex, gender, gender identity, and affective-sexual orientation, demonstrating how these concepts are social constructs that sustain historical processes of marginalization and exclusion. The trajectory of LGBTQIAPN+ movements in Brazil is explored as a form of resistance and a demand for recognition and equality, highlighting the complexity of vulnerability dynamics, especially when intersected by factors such as race, class, territory, and disability. Subsequently, the research systematizes the constitutional-legal framework on structural litigation and the ECI, discussing the evolution of judicial action in response to massive violations of fundamental rights, as well as the material and procedural requirements that legitimize the judicial recognition of structural unconstitutionality situations. To this end, the theoretical construction and practical application of the ECI in the Colombian experience are analyzed, along with its reception in Brazil, with emphasis on ADPF No. 347 by the Brazilian Supreme Federal Court (STF). This examination provides the basis for understanding the ECI as a legal instrument capable of addressing persistent institutional failures and promoting structural interventions within the State apparatus. Finally, the thesis conducts an integrated analysis of structural LGBTQIAPN+phobia as a social and legal phenomenon, identifying heterocisnormativity as the normative logic that guides legislative, administrative, and judicial practices of exclusion. It also examines the performance of the Legislative Branch, characterized by the absence of protective regulations and the production of regressive proposals; the Executive Branch, whose budgetary and programmatic omissions weaken essential public policies; and the Judiciary, which oscillates between institutional advances and the reproduction of selective protections. Additionally, the research analyzes the widespread violation of the fundamental rights of sexual minorities, such as the rights to equality, life, security, health, education, and work. Methodologically, the research adopts a narrative literature review, combined with documentary and jurisprudential analysis. The findings demonstrate that the Brazilian State not only fails to protect sexual minorities but also acts as an agent that reproduces their exclusion, consolidating an institutional arrangement that legitimizes the marginalization of these identities. The thesis concludes that the situation of massive and persistent rights violations justifies, according to doctrinal and jurisprudential foundations, the declaration of an ECI concerning sexual minorities, imposing on the State the adoption of structural and coordinated measures to break the cycle of omission and fragmented judicialization, thereby promoting the effectiveness of the constitutional commitment to dignity, substantive equality, and social justice.