Recipe for a 'Legal Cake': A Discursive Analysis of the Criminalization of Homophobia and Transphobia for the Guarantee of the Right to Health

Abstract

This article analyzes the discourses in Direct Action of Unconstitutionality by Omission No. 26 and Collective Injunction Writ No. 4,733, adjudicated by the Supreme Federal Court, examining the judicialization of health for the population of lesbian, gay, bisexual, travesti, transgender, transsexual, and other performativities (LGBTTT+). The ruling that equated homophobia and transphobia with racism reveals both advancements and resistance, particularly from cis-heteroactivist groups. Through qualitative and critical discourse analysis, the study investigates how health is treated as a fundamental right and a form of resistance in a neoliberal scenario, highlighting intersectionality to understand social exclusions and inclusions. The results show that, although health is not frequently cited in the legal proceedings, it emerges as a cross-cutting right linked to human dignity. Arguments in favor of criminalizing homophobia and transphobia emphasize their harmful effects on the physical and mental health of LGBTTT+ people, while opposing positions rely on individual freedoms, such as expression and religion, perpetuating cis-heteronormative norms. The analysis demonstrates the conflict between the guarantee of rights and the maintenance of structural inequalities. It is concluded that, although crucial for protecting vulnerable groups, the judicialization of health faces obstacles imposed by neoliberal and conservative narratives. This research broadens the understanding of the struggle for LGBTTT+ rights within the legal system and reinforces the urgency of intersectoral policies that ensure health and equity.