ENTRE A CRIMINALIZAÇÃO DA LGBTFOBIA E A RESPONSABILIZAÇÃO NÃO-CRIMINAL

Abstract

The main objective of this paper is to reflect on the effectiveness of using Criminal Law as a way to combat LGBTphobia. Thus, it was proposed to discuss whether criminalization should be used as an anti-discrimination tool or if the accountability of the agent should go in another direction. Thus, using the logical-deductive method, it was attempted to carry out a bibliographic research about articles, theses and reports that deal with the use of Criminal Law as an anti-discrimination instrument, in order to consider the use of Symbolic Criminal Law as the main parameter to think about the emblematic role that the act of criminalizing plays. On the other hand, the subject's non-criminal accountability was considered, from the point of view of public policies and specific foreign legislation, namely the Argentine Gender Law and the Uruguayan Comprehensive Law. Then, finally, a synthesis was carried out, through the dialectical method, on the arguments in favor and against the criminalization of LGBTphobia. Although both strands have argued points of extreme importance, such as the high legitimacy of the criminal apparatus and the criminal selectivity that permeates the system, there is a demand for state action that does not have criminalization as the sole and exclusive source of combating acts of prejudice, but that can use it as one of the measures, in its repressive bias. Foreign experiences, such as those of Argentina and Uruguay, combined with notions of public policies alternative to criminal channels, reinforce this conclusive consideration.