Invisibility and recognition: the judicial treatment of homophobia and sexual intolerance in the Court of Justice of São Paulo

Abstract

This article examines the judicial treatment of homophobia and sexual intolerance by the São Paulo Court of Justice (TJSP), in light of the Supreme Federal Court’s precedents established in the Direct Action of Unconstitutionality by Omission No. 26/DF, the Writ of Injunction No. 4,733/DF, and Law No. 14,532/2023. Adopting a qualitative, empirical, and exploratory-descriptive approach, the study analyzes 26 appellate decisions issued between 2020 and 2025. Jurisprudential data were collected from the TJSP database using the search path “Jurisprudence → SAJ → Jurisprudence → Subject: ‘Intolerance by Orientation,’” supplemented by the filters “Criminal → Prejudiced → Sexual Orientation → Gender Identity,” and the keywords “homophobia” and “ADO 26.” After excluding duplicates and incomplete records, the sample included decisions from the 1st, 2nd, 4th, 5th, 6th, 10th, 11th, and 16th Criminal Chambers. The analysis employed content analysis to categorize judgments by legal reasoning, type of appeal, and references to constitutional precedents. The results indicate increasing jurisprudential uniformity and systematic application of the ADO 26/DF and Law No. 14,532/2023, revealing interpretative progress and constitutional awareness in addressing homophobia. Although no evidence of structural institutional violence was found, subtle forms of epistemic and symbolic violence persist, reflected in the lack of standardized identification of victims’ gender or sexual orientation and in the residual erasure of their identities. The study concludes that the TJSP is undergoing an institutional transition toward a more inclusive and coherent jurisprudence that aligns with human rights principles and strengthens the recognition of LGBTQIA+ persons within the Brazilian judicial system.