Abstract
The study proposes to analyze the factors - such as the link to the inter-American corpus iuris, the warrant of the pro personae principle, the duty of execution of the conventionality control, and the duty of compatibility of the national law for the precedents of the Inter-American System for the Protection of Human Rights - that lead to the link of the Federal Supreme Court to recognize the sexual minorities as suspect classification of discrimination, aligning its case law understanding to the patterns of protection of the sexual minorities developed by the Inter-American Court of Human Rights, in the perspective of a transforming constitutionalism (ius constitutionale commune). In that regard, the main objectives are, initially, to explain the paradigmatic decisions issued by the FSC on the matter between 2010 and 2020, which constitute an important advance in the consolidation and protection of the rights for these groups. Then, the aim is to ascertain the theoretical and case law development of the “suspect classification” notion of discrimination in the Inter-American Court of Human Rights. And, finally, to analyze the existence of a link of the Brazilian constitutional jurisdiction to follow the minimum standards regarding human rights established by the IHR Court, as well as its potential impacts in the expansion of this protection in Brazil. First and foremost, it is possible to conclude that the Federal Supreme Court could recognize the “suspect classification” status regarding the sexual minorities in the scope of its acting, because the Brazilian State, in its most varied spheres and Powers, remains linked to follow the precedents set by the Inter-American System of Human Rights, by virtue of recognizing the Inter-American Court of Human Rights’ competence and also the erga omnes effectiveness attributed to its decisions, apart from the duty of execution of the conventionality control and by the influence of the transforming warrant emanated from the Latin-American Ius Consitutionale Commune project.
Keywords:
Suspect classification of discrimination; Inter-American Court of Human Rights; Latin-American Ius Constitutionale Comune; Sexual minorities; Federal Supreme Court