Procedural Posture

Following the death of his partner, SGB filed suit against the decision of the pension fund of the State-owned Bank of Brazil (“PREVI”) to deny him survivor benefits. A first instance court granted SGB’s request for benefits, but PREVI appealed and that decision was reversed. SGB then filed an appeal to the Superior Tribunal of Justice.

Facts

SGB and LCFS had a fifteen-year relationship, which ended with LCFS’s death. A survivor’s benefit was granted by the National Social Security Institute, but LCFS also had a pension scheme with PREVI. PREVI denied benefits to SGB on the ground that it did not recognise a stable union between two men but only between opposite-sex couples.

Issue

Whether the long-term stable relationship of two men should qualify for a survivor pension in the same manner as the relationship of an opposite sex couple.

Domestic Law

Constitution of Brazil, Article 1 (dignity), Article 3 (non-discrimination), Article 5 (equality before the law), and Article 226(3) (“For purposes of protection by the State, the stable union between a man and a woman is recognised as a family entity, and the law shall facilitate the conversion of such entity into marriage”).

Federal Law N0. 10406 of 10 January 2002 (Civil Code), Article 1723 (recognising as a family entity the stable union of a man and a woman).

Decree-Law No. 4657 of 4 September 1942 (concerning the introduction of changes to Civil Code), Articles 4 (“When the law is silent, the court will decide the case according to the analogy, customs and general principles of law”), and 5 (in applying the law, the court will serve the social purposes to which it is addressed and the requirements of the common good”).

Reasoning of the Court

The first instance court had reasoned that the absence of specific legislation recognising same-sex civil unions or partnerships was not an impediment to judicial recognition. Using Article 4 of Decree-Law No. 4657 and by analogy to the regulation of heterosexual civil unions provided by Article 1723 of the Civil Code and Article 226 of the Constitution, the first instance court concluded that all the requirements were fulfilled and that denial of the pension claim was unjustified.

PREVI appealed and the appellate court reversed. The appellate court relied on Article 226 of the Constitution (which defined the stable union of a man and a woman as a family unit) to conclude that same-sex relationships could not receive legal recognition.

On appeal to the Superior Tribunal of Justice, the appellant argued that the discrimination against same-sex relationships was based on prejudice and violated the rights of individuals whose sexual orientation differed from the heterosexual norm. This in turn infringed the constitutional guarantee of equal protection under the law. The appellant also argued that Article 5 of the Constitution provided that all persons were equal before the law without any distinction whatsoever. Given that sexual orientation was not defined in the Constitution as an essential feature justifying a difference in treatment, differences in treatment based on sexual orientation were discriminatory.

The appellant drew attention to the preamble of the Constitution, which described its purpose as ensuring “equality and justice as supreme values of a fraternal, pluralist and unprejudiced society”. Moreover, Article 1 enshrined human dignity as a foundation of Brazil, and Article 3 provided that the promotion of “the well-being of all, without prejudice as to origin, race, sex, colour, age and any other forms of discrimination” was a fundamental objective. The appellate court decision had used the sexual orientation of the pension holder to justify exclusion from the pension benefit scheme and this directly violated human dignity.

The Court agreed with the appellant’s arguments and overturned the lower court’s decision denying benefits. It recognised same-sex relationships as stable unions with rights, and observed that valuing love and relationships meant setting aside traditional preoccupations with “patrimonial matters” or the “procreative purpose of the family entity”. It emphasised that the understanding of relationships had changed and that today’s view was more focused on the communion of life and interest between partners.

Postscript

On 5 May 2011, the Supreme Federal Court of Brazil unanimously recognised the legal rights of partners in same-sex civil unions. Although the Court maintained the distinction between civil unions and marriage, it ordered that same-sex couples be permitted to register their unions, thus granting them the rights of married couples. The Court relied on Article 3 of the Constitution.

full text of judgment forthcoming