O uso ou não de "categorias suspeitas" de discriminação pelo Supremo Tribunal Federal no julgamento de ações de não discriminação relativas a grupos vulneráveis.

Abstract

With their origin in the Supreme Court of the United States, and, most recently, equally recognized and incorporated by the Inter-American Court of Human Rights’ case law, the suspect classification doctrine and the notion of strict scrutiny of proportionality intend to fulfill a valuable role regarding the protection of vulnerable groups, mainly concerning the protection of the rights to equality and non-discrimination of such groups. In this scenario, it is asked: does the Federal Supreme Court adopt, in the judgment of issues involving groups in situation of vulnerability, based on the rights to equality and non-discrimination, the concept of “suspect classification”, applying stricter criteria of proportionality for these groups in its decisions? For the development of the research, the hypothetical-deductive approach method, the analytical procedure method and the indirect documentation research technique were used. To answer the proposed problem, the specific objectives of the research are: 1st) to verify how the protection to vulnerable groups develops itself in the context of the democratic constitutional order of 1988, approaching topics regarding the protection of the rights to equality and non-discrimination in the Federal Constitution of 1988, in addition to tracing the existing terminological differences among the concepts of “minority”, “vulnerable groups” and “group in situation of vulnerability”; 2nd) to analyze the historical outline of the emergence of the suspect classification doctrine and the notion of strict scrutiny, approaching examples of their application in other Courts and delineating the existing relation between the proportionality principle and the notion of suspect classification and strict scrutiny of proportionality; and 3rd) to select and expose the decisions of the Federal Supreme Court on vulnerable groups that will be analyzed, identifying the concept of vulnerable group developed by the Federal Supreme Court, to, then, verify if there were the recognition and effective incorporation of the notion of suspect classification and the application of strict scrutiny of proportionality in the decisions analyzed in this study. Conclusively it is possible to argue that the Supreme Federal Court does not incorporate the notion of “suspect classification”, as well as it does not apply strict scrutiny for the analysis of the constitutionality of cases that involve groups in situation of vulnerability, considering that, of the 15 decisions analyzed in the development of the research, none of them recognized the notion of suspect classification or applied a constitutionality control based on the analysis through the strict scrutiny of proportionality. Thus, the negative hypothesis was ascertained, that the Federal Supreme Court does not adopt, based on the rights to equality and non-discrimination, the concept of “suspect classification”, as well as it does not apply stricter criteria of proportionality in decisions that involve groups in situation of vulnerability.