Discriminação por orientação sexual na perspectiva dos direitos humanosum panorama da legislação, jurisprudência e ações formativas no Brasil

Abstract

This thesis represents the outcomes of a scientific researching pro cess whose subject of study is � Discrimination for sexual orientation in the perspective of human rights: a panorama of the legislation, jurisprudence and affir mative actions in Brazil � . The reason for choosing this topic and developing this thesis comes up from the existence of numerous debates discussing this very matter within the sphere of international organizations plus the deep rift existing between the cr eation and application of explicit norms aimed at avoiding violations of human rights due to sexual orientation discrimination and the proper effective measures meant to eradicate and condemn this type of discrimination, both in the international legislati on and in the internal legislation frame of the states, especially in Brazil. In this sense, in the following work piece we approach the aspect of the recognition of LGBT rights as fundamental and universal rights, through the analysis of the evolution of non - discrimination principle for sexual orientation within the regulation and jurisprudence of the international organizations. Likewise, we include a brief mention to the legislation relating sexual orientation, in order to enshrine this kind of discrimin ation within the legislative framework of the different states worldwide; we analyze the role of the Non - Governmental Organizations (NGO�s) and other international documents regarding non - discrimination for sexual orientation; we examine the constitutional protection of the homosexuals rights in the light of the principles of freedom, human dignity, equality and non - discrimination for sexual orientation in the Brazilian legislation and, finally, we research into the upsurge of the affirmative actions in fav or of homosexuals in the reality of the situation in Brazil and the compatibility of these actions with the constitution, besides the social mobilizations which have contributed to the conquest of rights and governmental actions undertaken to fight agains t discrimination for sexual orientation. The carrying out of the thesis is based upon the aims established on the first place, and follows, focusing on the problem as a way that leads towards the consequences, a deductive method in its development. The acc omplishment of the formal and systematic process of this method in this thesis takes the descriptive procedure as a starting point, where the information has been observed, registered, analyzed, classified and interpreted itself. In terms of juridical rese arch, and taking into account the peculiar characteristics of the law system, a bibliographical investigation predominated along the work, provided that we resorted to philosophical, historical, sociocultural and doctrinaire knowledge about several related and interdependent disciplines for establishing its theoretical - methodological foundation. Therefore, we are here referring ourselves to an interdisciplinary study. On the other hand, an evolutionary and historical method was also adopted in order to tr ace the bases to understand the social and legal transformations that have occurred for the creation of affirmative actions. Our work was also based on the hypothetical - deductive method for confirming the hypothesis on the compatibility between the constit utional principle of equality and the affirmative policies created to fight against discrimination in the Brazilian law system.