By recognizing the existence of structural racism in Brazil and determining the adoption of measures to address violations of the rights of the black population, the STF (Federal Supreme Court) placed the country in a select group of democracies that have already issued a decision on the issue.
In countries like Canada, South Africa and Colombia, higher courts have recognized for decades that certain racial or ethnic groups face historical and systemic disadvantages, justifying different policies and the adoption of specific state measures.
The concept of structural discrimination has variations, adapting to the reality of each nation. Basically, it means “the belief that the idea of race maintains social, economic and political inequalities,” explains Lia Schucman, professor at UFSC (Federal University of Santa Catarina) and researcher on racial issues.
For her, there is a simple way to explain why there is a structure of exclusion in Brazil. “If everything goes as usual, the outcome will be racist. If I open a vacant position for a CEO of a company and I don’t institute affirmative action, a white person will come in. If the same thing happens in a competition for a university professor, the outcome will probably be the same.”
The reasoning is the same as that put forward by the Minister of Racial Equality, Anielle Franco. “The history of the black population in Brazil is marked by the harmful consequences of slavery, which led to a trajectory of systemic inequalities, perpetuating disadvantages and barriers in all areas of life. These include, for example, employment and educational opportunities, which are generally not accessible to black people to the same extent as white people,” she says. Leaf.
This reality is not the result of isolated cases of discrimination, according to the minister, but rather of systemic racism anchored in the structures of society.
The belief in the existence of a racist foundation is shared by other countries. In Canada, the Supreme Court has consolidated the understanding that constitutional equality must be substantive and not just formal. Case law recognizes that seemingly neutral standards, such as the assertion that everyone has equal rights, can perpetuate structural inequalities, particularly against Black and Indigenous populations.
South Africa’s Constitutional Court, established after the end of apartheid, operates on the basis of a Constitution that expressly recognizes the legacy of racial exclusion. Its decisions are based on the hypothesis that the State has the duty to dismantle the structures inherited from the segregationist regime, thus legitimizing positive action and redistribution policies.
In Colombia, courts also recognize the existence of historical discrimination against communities of African descent, particularly on issues related to territory, forced displacement and access to public policies. In some judgments, the High Court declared the existence of state omission, requiring the government to adopt broad measures to address systematic rights violations.
The action judged by the STF also examined whether there had been an omission by the State in the violation of the rights of the black population in Brazil, which was translated into legal language as an “unconstitutional factual situation”.
The trial began with the vote of Luiz Fux, rapporteur of the file at the STF, in November. He spoke in favor of the declaration of an “unconstitutional situation”, that is to say the recognition of a systematic violation of the fundamental rights of the black population of the country.
During the session this Thursday (18), he readjusted his vote, opting for the presumption of racism as the foundation of Brazilian society, but denying that institutions are responsible for it. Ministers Cristiano Zanin, André Mendonça, Nunes Marques, Alexandre de Moraes, Dias Toffoli and Gilmar Mendes voted in the same direction.
This current understood that there were serious violations, but that a set of measures already adopted by the State or underway to remedy historical omissions eliminate the unconstitutional state of affairs.
On the other hand, Edson Fachin, Flávio Dino and Cármen Lúcia voted to recognize the systemic omission of the State in the face of violations of the rights of the black population.
During his vote, Fachin took the opportunity to illustrate his views on structural racism in the country and why it would be an institutional responsibility. “Such violations (against blacks) are not episodic or circumstantial, but continuous and the result of a long-term historical process, which dates back to the slave regime and the consolidation of an imaginary of ‘racial democracy’ which, in practice, served to render racism invisible, to prevent its adequate identification and confrontation and to silence the debate on any policy of reparation,” he said.
For Thiago Amparo, professor of human rights at the FGV (Fundação Getulio Vargas), the STF was “halfway” in its decision by recognizing that “there is structural racism, but there is no systematic omission of the State because actions have already been taken against racism in the legal and public policy areas”. The lawyer believes that existing actions do not prevent public authorities from not fighting against racism. “The persistence of police violence is an example.”
The non-recognition of the unconstitutional situation is also pointed out as a failure by José Luiz Souza de Moraes, president of the Association of Lawyers of the State of São Paulo. However, he emphasizes that the affirmation of structural racism already constitutes a historical and political milestone to be celebrated.
“The decision opens the door to the development of public policies, through which it is possible to change the daily life of the entire population. It is through them that the State distributes justice,” he said.
At the end of the vote, Fux proposed that the STF recognize the continued violation of the fundamental rights of the black population and demanded that the State act in matters of health, food safety, public safety and protection of life, in addition to providing policies of reparation and construction of memory for this population group.
In education, for example, the thesis determines the training of teachers, including in cooperation with universities on the African continent, to teach Afro-Brazilian history and culture.
Regarding the justice system, the minister suggested the creation of service protocols for black people in judicial bodies, including courts, prosecutors’ offices, public defender offices and the police.
“It must be considered that there has been progress, but we are still far from an acceptable status of racial equality in data on violence, income and education,” says Douglas Leite, professor of public law at UFF (Universidade Federal Fluminense).
For Paulo Ramos, research coordinator at Afro Cebrap (Center for Research and Training on Race, Gender and Racial Justice), the instructions contained in the minister’s vote open up space for us “to reach other layers and Brazilian institutions that often do not operate in a democratic way.”
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