Judicialização da política ou ativismo judicial: uma análise acerca dos direitos da população LGBTQIA+ no Brasil sob a ótica da ADO 26 E ADI 4.277

Abstract

Faced with the exacerbated protagonism of the Judiciary in terms of granting rights to the LGBTQIAP+ population in Brazil, we come up against two well-known legal phenomena, judicial activism and the judicialization of politics. institutes the rights of this population were acquired. Faced with this question, this research aims to analyze the two most emblematic decisions published in the media regarding this topic: ADO 26/DF and ADI 4.277/DF, specifically examining the principle base used in each of these two STF decisions, in addition to verifying the differences between the two phenomena. Thus, the present research used the inductive approach method, as a specific analysis was carried out to then be able to reach a general idea. Furthermore, in relation to procedural methods, the monograph was used to conceptualize the phenomena and analyze the jurisprudence related to the topic; as well as the comparative procedure method, comparing their possible differences and similarities, with the aim of concluding, based on this, the legality and content of the decisions. Regarding research techniques, indirect documentation was used, such as documentary research, as the Federal Constitution of 1988 was analyzed, widely used by Supreme Court ministers to support their votes, as well as the jurisprudence under examination, specifically ADO 26/DF and ADI 4.277/DF; and bibliographical research, since a collection of references was made capable of constructing the investigation. The first chapter sought to specifically explore judicialization and activism, bringing to light their historical background and differences. Furthermore, the constitutional provisions, widely used by Supreme Court ministers to support their votes, were analyzed. And, finally, the social need for the two judicial decisions under study was highlighted, due to the extremely large number of violence against the queer population. In the second chapter, the two judicial decisions were analyzed, analyzing the most important parts of the judges' votes, as well as their arguments and the principled basis used by them. In this way, we sought to analyze the two decisions to verify the occurrence of one of the two phenomena, based on the principle used by the ministers in relation to the specificities of each institute.