THE STF AS A GUARANTEER OF THE EFFECTIVENESS OF FUNDAMENTAL CONSTITUTIONAL PRINCIPLES: AN ANALYSIS OF THE STF'S PERFORMANCE IN THE JUDGMENT OF ADO No. 26

UMA ANÁLISE SOBRE A ATUAÇÃO DO STF NO JULGAMENTO DA ADO N° 26

Abstract

The present work sought to analyze the decision of the Federal Supreme Court in the judgment of the Direct Action of Unconstitutionality by Omission (ADO 26), in which it declared the inertia of the National Congress in regulating a rule that decriminalizes offensive acts against the LBTQIA+ population. We sought to analyze the problems faced by the judiciary in the face of legislative omissions and what solutions can be extracted from the constitutional text to resolve disputes brought to the judiciary. We also sought to analyze the position of the Federal Supreme Court in the judgment of ADO 26, raising the arguments brought by Minister Rapporteur Celso de Mello to support the aforementioned decision that allowed the filling of the legislative gap and guaranteed the enforcement of fundamental rights through the use of hermeneutical resources. The methodology applied to this essay was hypothetical deductive, where we sought to find the legal support that allowed the application of the law of racism to acts arising from homophobia and transphobia.