'When the people take steps backward, there is no guarantee that justice will not follow.'

Fernanda Canofre, On the 21 - The name of Judge Roger Raupp Rios, of the Federal Regional Court of the 4th Region (TRF4), in Porto Alegre, became nationally known in 1996. At the time, he became the first magistrate in Brazil to recognize the union of a same-sex couple, who filed a lawsuit so that one could be included as a dependent on the other's health insurance plan. The pioneering decision became a precedent for others that followed, including the decision of the STF (Supreme Federal Court) itself, to recognize civil unions of same-sex couples in 2011, and led the magistrate to dedicate himself to studying issues related to the rights of discriminated groups.

Twenty-one years after Rios' pioneering decision, last week Brazilian news was ablaze with headlines about a judge in the Federal District who allegedly authorized so-called sexual reorientation in psychologists' offices. The practice became known as "gay conversion therapy" after federal deputy João Campos (PSDB-GO) attempted to legalize it by proposing to overturn a resolution of the Federal Council of Psychology (CFP) in a proposal presented to Congress in 2011.

Although the judge did not use the expression and recalled that the World Health Organization (WHO) banned any reference to homosexuality as an illness, he concludes his decision by stating that, even if the Federal Council of Psychology (CFP) maintains the resolution stating that "psychologists may not take any action that favors the pathologization of homoerotic behaviors and practices," psychologists may still treat people who voluntarily seek their help regarding sexuality issues. An appeal is still possible.

This Monday (25), Sul21 spoke with Roger Raupp Rios, in his office, to discuss how judicial decisions can affect minority rights:

Sul21: How did you evaluate this decision? It is indeed paradoxical.The judge makes it clear that homosexuality is not an illness, while at the same time acknowledging the request for psychologists to be able to use treatments for so-called "sexual reorientation.")?

Roger Raupp Rios: Judicial decisions, like all state acts, should be as clear and understandable as possible. Many decisions sometimes begin with a line of reasoning, stating that such and such behavior is appropriate, that such and such behavior is in accordance with the law or not, but they can arrive at conclusions that are difficult to reconcile. So, for example, stating, in theory, that sexual orientation, regardless of whether it is heterosexual or homosexual, is not pathological – as has been thought for many years in the world and in Brazil by scientific and professional bodies – and then, at a certain point, authorizing the practice of techniques for the reorientation of some sexuality, is a circumstance that creates a difficulty in understanding the decision.

Sul21: In 1996, you authored a pioneering decision in Brazil, recognizing the right to marriage for a same-sex couple. This decision set a precedent for others that followed. Is there a risk of that now?

Roger: Court decisions that eventually solidify in a certain direction are called jurisprudence. This body of decisions, which point to a particular outcome, is not formed by a single isolated decision, but by a series of them. Often, decisions begin at the first instance level, in the Federal, State, or Labor Courts, and are then confirmed by the second instance, the state courts, the federal courts, until they reach Brasília, the Superior Court of Justice (STJ) or the Supreme Federal Court (STF). It is this entire process that consolidates jurisprudence. Of course, a direct decision from the STF often facilitates this process. But it is very difficult for this particular decision, which is causing so much controversy, to pave the way for other similar decisions. Judging by the type of reaction from the scientific and legal community, it is unlikely to open new avenues.

Sul21: How does the Brazilian Judiciary view issues of sexual diversity? Is it more conservative or does it tend to go against public opinion in order to guarantee individual rights?

Roger: That's an excellent question, but it's not an easy question to answer because it depends on the context. What seems to me, as a citizen, as a law professor [UniRitter], and as a career judge, is that in contexts where society and the world are vigilant and attentive to the recognition of rights, in general, they end up following that path of recognition. This includes recognizing the rights of so-called minority groups, which common sense and tradition, due to prejudice, would not recognize, but since it's a democratic trend, it ends up happening. I say it's complex because, in other contexts, where societies begin to close themselves off, become more conservative, and begin to take steps backward, nothing guarantees that the Judiciary won't follow suit.

Sul21: There is another question, which is how the decision interferes with an internal matter of the Federal Council of Psychology (CFP). Can the judiciary interfere in decisions of professional categories? How do you assess this?

Roger: Let's consider this: all professional councils, whether for psychology, medicine, law, and so on, both federal and state councils, are state bodies that perform administrative acts. Evidently, these administrative acts must comply with the law. The courts can only declare an administrative act regulating a profession invalid if it is inconsistent with the law. The question that arises is this: when, worldwide, scientific bodies and professional governing bodies have long held consolidated positions, this is already a matter specific to those areas. The law has little to do but recognize and respect it. Unless something the council says is against the rights of an individual or group. In this case, which has sparked so much debate, it seems to be about a regulation of the profession that clearly states that certain lifestyles, styles, and behaviors do not represent any pathological trait. Therefore, entering into this debate is no longer a purely legal matter. In this case, it's also important to say that the Council's resolution dealt with professional practice, not science. To argue that a resolution from a professional council could encroach on the field of science is to state what is not written in that resolution. Because the practice of science is regulated by academies and universities, where there are ethics committees and formal rules for verifying studies and hypotheses.

Sul21: The judge did not overturn the CFP resolution, as the lawsuit requested. But what is the risk of having opened a loophole for psychologists who want to adopt this issue of "sexual reorientation" as a possibility?

Roger: Not speaking specifically about this process, but in a broader debate, history is full of examples where science has acted against discriminated groups. History is full of examples where science said, for example, that Black people were biologically and psychologically different and inferior. Or even women, about whom even today there are people who uphold pseudo-scientific arguments that women, due to their emotional and psychic condition, would have such and such characteristics. In general, to make women feel inferior to men. In the case of the LGBT issue, it's no different. Just as it happened and happens with women and youth, the same kind of historical danger occurs. We cannot forget these risks.

Sul21: How did you become interested in issues of sexual diversity within the legal field?

Roger: Because, by chance, I was given the responsibility of deciding, in 1996, on a case involving the possibility of including a person of the same sex [as the partner] in a health insurance plan. Faced with this issue, which at that time was unprecedented—there was no law, no jurisprudence, no article—I realized that this was a very serious issue, involving a very high degree of discrimination, and that it was necessary to advance in the way the law recognizes sexual rights. It started from there.

Sul21: In a country like Brazil, which leads in the number of violent crimes against LGBT people, even though there are no official figures to disclose, what do such decisions represent?

Roger: In times when we are experiencing a wave of setbacks in rights, any public or private initiative that goes in that direction always fuels regression. So, whether it's the debate that's happening now, this decision, or other measures, we see yet another action, another debate, another controversy that tends to make things more difficult. This happens to LGBT people, women, the poor, Black people, and so on.