Andreolla, Andrey HenriqueBernstein, Elisandra Fabrícia2024-03-042024-03-042020https://repositorio.uricer.edu.br/handle/35974/536Fundamental rights and guarantees are provided for in the 1988 Federal Constitution to guarantee basic individual, social, and diffuse rights and democracy to Brazilian citizens. Article 5, item XLI, of the same legal diploma, prescribes that any discrimination that undermines fundamental rights and freedoms must be punished by law, as well as the legislative omission regarding the criminalization of homotransphobic conduct. Thus, the present monographic research has the general objective of evaluating the possibility of the construction of the crime of homotransphobia in comparison with the crime of racism, through the Judiciary, through a posture that is consistent with the idea of judicial activism. To do so, initially, it is necessary to explain the principle of legality and the rules of Brazilian Criminal Law, its foundations and developments. After that, clarify aspects about the principle of separation of powers, as well as understand, analyze and point out favorable criticisms and positions regarding the institute of judicial activism. Finally, to analyze the decision of the Supreme Federal Court that equated discriminatory conduct based on gender identity and sexual orientation with the crime of racism, showing possible favorable and contrary positions regarding the trial. The justification of the study lies precisely in the discussion about the legitimacy of the Supreme Federal Court to criminalize homotransphobic conduct in the same way as the crime of racism, as a tool to satisfy social and democratic demands. Thus, it is noted that the decision of the Supreme Court to criminalize homotransphobic conduct in comparison to the crime of racism goes beyond its competence, showing authentic judicial activism, as well as not observing the principle of legality, nor does the prohibition of the analogy in malam partem. The methodology used for the development of the present work was based on bibliographic, documentary and jurisprudential research, through the inductive and analytical-descriptive methods.pt-BRDireitoHomofobiaHomotransfobiaRacismoAtivismo judicialTrabalho de Conclusão de Curso