Legal Opportunity Structure and Legal Battles Over Sex Education and LGBTQ Students in Brazil and Colombia

ESTRUCTURA DE OPORTUNIDAD LEGAL Y BATALLAS LEGALES SOBRE LA EDUCACIÓN SEXUAL Y LOS ESTUDIANTES LGBTQ EN BRASIL Y COLOMBIA

ESTRUTURA DE OPORTUNIDADE JURÍDICA E BATALHAS JUDICIAIS SOBRE EDUCAÇÃO SEXUAL E ESTUDANTES LGBTQ NO BRAZIL E NA COLOMBIA

Abstract

Brazil and Colombia are outstanding cases of rights recognition through courts. However, when it comes to comprehensive sex education (CSE), the legal battles in these countries have experienced notably different moments. Drawing on judicial cases from the Brazilian Federal Supreme Court and the Colombian Constitutional Court, we identify the actors involved in the legal battles over CSE and show how the legal opportunity structure (i.e., the configuration of power, the access to the courts, the systems of alliance and conflicts, and the availability of legal frames) shaped the course and outcomes of the legal mobilization that took place in these countries in different ways. For this, we work with document analysis of court case files and consider a sample established in February 2023 containing 9 cases from Brazil and 24 cases from Colombia. We argue that (i) the Colombian court is much more open to civil society than the Brazilian court, resulting in a broader and more diversified use of litigation, and that (ii) the different configuration of political power has led the Brazilian mobilization to assume a feature of resistance to conservative attacks on CSE, while in Colombia, litigation has become a tool for expanding the right to sex education and protecting LGBTQ students.

Keywords Legal opportunity structure; legal mobilization; amicus curiae; sex education; LGBTQ rights

Resumen

Brasil y Colombia son casos destacados de reconocimiento de derechos a través de los tribunales. Sin embargo, cuando se trata de la educación sexual integral (ESI), las batallas legales en ambos países han vivido momentos notablemente diferentes. Con base en la revisión de decisiones judiciales del Supremo Tribunal Federal de Brasil y la Corte Constitucional Colombiana, identificamos los actores que participaron en las batallas legales sobre educación sexual y mostramos cómo la estructura de oportunidades legales (i.e., la configuración del poder, el acceso a los tribunales, el sistema de alianzas y conflictos y los marcos legales) moldeó de manera distinta la trayectoria y los resultados de la movilización legal en ambos países. Para ello, trabajamos con análisis documental de expedientes judiciales y consideramos una muestra establecida en febrero de 2023 que contiene 9 casos de Brasil y 24 casos de Colombia. Argumentamos que (i) la Corte colombiana es mucho más abierta a la sociedad civil que el Tribunal brasileño, resultando en un uso más amplio y diversificado del litigio, y que (ii) la configuración distinta del poder político hizo que la movilización legal en Brasil se encaminara a resistir los ataques conservadores contra la ESI, mientras que en Colombia se dirigió a expandir el derecho a la educación sexual y a la protección de los estudiantes LGBTQ.

Palabras clave  Estructura de oportunidad legal; movilización legal; amicus curiae; educación sexual; derechos LGBTQ

Resumo

O Brasil e a Colômbia são casos de destaque de processos de reconhecimento de direitos por meio dos tribunais. No entanto, quando se trata de educação sexual integral (ESI), as batalhas jurídicas que ocorrem nesses países têm vivido momentos notavelmente diferentes. Com base em decisões judiciais do Supremo Tribunal Federal brasileiro e da Corte Constitucional Colombiana, identificamos os atores envolvidos em batalhas legais sobre ESI e mostramos como a estrutura de oportunidade jurídica (ou seja, a configuração do poder, o acesso às cortes, a existência de sistemas de apoio e oposição e a viabilidade de enquadramentos legais) moldou a trajetória e os resultados da mobilização do direito nesses dois países de forma distinta. Para isso, trabalhamos com a análise documental de arquivos de casos judiciais e consideramos uma amostra estabelecida em fevereiro de 2023 contendo 9 casos do Brasil e 24 casos da Colômbia. Argumentamos que (i) a corte colombiana é muito mais aberta à sociedade civil do que a brasileira e que isso levou a um uso mais amplo e diversificado da litigância na Colômbia, e que (ii) a diferente configuração do poder político levou a mobilização brasileira a assumir um caráter de resistência aos ataques conservadores contra a ESI, enquanto na Colômbia a litigância se tornou uma ferramenta para ampliar o direito à educação sexual e proteger estudantes LGBTQ.

Palavras-chave  Estrutura de oportunidade jurídica; mobilização do Direito; amicus curiae; educação sexual; direitos LGBTQ

Introduction¹

The vast debate over sex education, especially a comprehensive one that is sensitive to gender and sexual diversity (Comprehensive Sex Education-CSE), involves several legal and political battles. Unesco (2018, p. 16) defines CSE as a “curriculum-based process of teaching and learning about the cognitive, emotional, physical and social aspects of sexuality”. In this article, we adopt a broader definition of CSE to encompass not only curricular processes but also institutional policies that promote inclusion in schools, particularly of sexual and gender minorities. We have chosen this broader definition in light of recent scholarly work showing that debates about CSE increasingly intersect with discussions on LGBTQ rights (Corrêa, 2020; Gruskin et al., 2018; Korolczuk, 2020). Therefore, in both political and academic discourse, CSE is not only about curriculum, but also about institutional policies that protect or violate students’ right to education when it comes to gender and sexual diversity issues.

The subject of CSE is of great importance for both policy and practice. Research has shown that sex education plays a fundamental role in preventing and addressing issues such as teenage pregnancy (Gianella; Machado; Defago, 2017), sexually transmitted infections (Montero, 2011), sexual violence against minors (Boesten, 2016), and discrimination against LGBTQ students (Goldfarb; Lieberman, 2021). In Latin America, these problems significantly impact the well-being and access to rights of vulnerable groups, such as sexual and gender minorities. CSE could be a useful tool to improve this situation in the region.

The relevance of CSE and related issues underscores the importance of putting the debate over sex education on the public agenda. However, the right to CSE (and protection from discrimination in schools) has occupied a marginal place in the LGBTQ agenda. This marginality is also reflected in the socio-legal literature. While topics such as marriage equality and decriminalization of homosexuality have received more scholarly attention, few studies focus on the issue of education.

This stands in stark contrast with the high interest shown by the conservative-religious anti-gender movement in the topic. Some examples include the campaigns #ConMisHijosNoTeMetas (Do Not Mess with My Children) in Peru, Escola sem Partido (School without Political Party) in Brazil, efforts to pass legislation restricting CSE, and current attempts of school boards in the United States to undermine CSE.

The politicization of CSE has escalated over the last decade, with prohibitions against discussing gender and sexuality-especially in schools-multiplying across several countries and regions. These attacks on CSE are often framed as mobilization against “gender ideology”, a concept that is sweeping across Latin America. Used by conservative political and religious groups, this term aims to drag initiatives that could contribute to gender equality into the mud (Corrêa, 2020; Gianella, 2019).

In many cases, this debate has also reached the courts. This article focuses on the battles that have reached the superior courts of two Latin American countries, the Brazilian Federal Supreme Court (Supremo Tribunal Federal-STF) and the Colombian Constitutional Court (CCC). It seeks to understand who are the actors that mobilize this arena and how legal opportunity structures (LOS) influenced the legal battles in both countries.

Colombia and Brazil are frequently highlighted in the literature as standout cases when it comes to rights (and especially LGBTQ rights) expansion processes through courts. In both countries, judicial constitutional review has played a key role in recognizing the rights of same-sex couples and trans people, for example. However, on the issue of education, the role of the courts has been different: while the CCC has been key to advancing the right to CSE, the STF has assumed a rather “blocking” role. Although the STF’s decisions have been significant in resisting conservative initiatives, the Brazilian court has not addressed cases that would further advance effective access to CSE and protection against discrimination for LGBTQ students, as we see in the case of Colombia.²

For this study, rather than only mapping cases and decisions, we highlight the importance of identifying the actors taking cases to constitutional courts and acting as amici curiae either for or against CSE. We explore this issue by considering which are the actors authorized to assume each of these roles and who are the actors that do so when it comes to CSE cases. This perspective can help us understand the content of cases presented to the constitutional courts and the development of the constitutional debate on CSE.

Our theoretical approach focuses on opportunity structures for actors that, in social movement theory, allude to the alternatives for individuals or groups to advance their claims using different tactics, along with the obstacles, resources, gains, and potential drawbacks tied to these strategies (Gloppen, forthcoming). For this work, considering its focus on legal battles, we mostly employ the literature concerning Legal Opportunity Structures (LOS). Nonetheless, we highlight that social, political, and legal opportunity structures are intertwined in a mobilization context. Hence, a country’s LOS does not exist in isolation, but is in constant interplay with the social, cultural and political conditions in which it operates. The lack of political opportunity, for example, due to little access to the legislative arena or few political allies, can lead to litigation strategies (Hilson, 2002).

Different authors in the socio-legal literature have developed conceptual proposals of structural factors that hinder or foster legal mobilization. Some of the most influential contributions are briefly addressed in this paragraph. Epp (1998) approaches key aspects that can lead to “rights revolutions”, including judicial independence, supportive judges, a popular culture of litigation, a strong foundation of constitutional rights, and the availability of legal and financial resources to support legal mobilization. Building on the literature on political opportunity structures, Hilson (2002), one of the pioneers in using the expression LOS, distinguishes between structural factors (linked to access to justice) and contingent factors (related to judicial receptivity). Andersen (2005) develops the concept further and proposes a broader understanding of LOS that includes access to formal institutional structures, the existence of allies and opponents, the configuration of judicial power, and existing cultural and legal frames. De Fazio (2012), in turn, considers three main factors: the availability of justiciable rights, the receptivity of judges, and the accessibility of courts.

According to this theoretical framework, actors may find greater incentives to mobilize courts, as well as better results from doing so, when standing rules are open and flexible, judges (or most of them) are receptive to their demands, there are allies in the arena, and there are justiciable rights to support their claims. Furthermore, LOS interact with social and political opportunities within a given context, and this interaction helps to understand actors’ choices of mobilization strategies.

Considering the relevant developments and proposals in the literature, we understand as relevant factors that might facilitate or constrain legal mobilization: (i) the level of access to courts, (ii) the existence of systems of alliance or opposition, (iii) the judicial configuration of power, particularly when it comes to judges (and, therefore, their capabilities, receptiveness, and willingness to address CSE cases), and (iv) the availability of justiciable rights (legal stock).

In this article, we identify that factors outlined in the literature on LOS also proved to be relevant in the cases we work with and have influenced the way the constitutional debate on CSE has evolved and progressed in both Brazil and Colombia. Our argument is that the possibilities for accessing the countries’ superior courts and the systems of alliance and opposition, as well as the contours of the debates about CSE in the political arenas taken into consideration together with the judicial receptiveness and willingness to address the topic, shape the legal mobilization in Brazil and Colombia and put them in disparate moments.

1. Methods

Aiming to address who are the actors that mobilize the constitutional courts in Brazil and Colombia on the issue of CSE, this study relied mostly on documental analysis of decisions, complaints and amicus curiae briefs made available by the courts. The processes for selecting cases considered the available mechanisms for searching decisions.

In the case of Brazil, we used the online search tool provided by the STF on its webpage. The search parameters were chosen aiming to encompass all the decisions related to sex education, and included (in Portuguese): “Education (sex$ OR gender)”~5 OR “teaching (sex$ OR gender)”~5 OR “gender ideology” OR “indoctrination”.³ The cases were selected in February 2023. The initial search resulted in twelve decisions issued by a body and 72 decisions issued by a single judge. Four of the body decisions and 58 of the single-judge decisions dealt with unrelated matters or only focused on procedural issues and were, therefore, excluded after applying a relevance filter. We also identified that some cases had more than one decision issued (for example, one decision granting provisional measures and one final decision), and three complaints on the same matter had a joint decision, being considered here as one “case”. This article focuses on cases with decisions on the merits. Consequently, we identified 16 decisions (either final or provisional measures) across 9 cases (see Table 1). Identifying the cases allowed us to access information about them (such as the involved actors) and access the case files (including complaints and amicus curiae briefs), provided that the case was not under legal confidentiality. We have also run a search using the parameters (school OR “educational institution” OR student) AND (LGBT$ OR homosexual), but it did not yield any relevant results beyond those found with the other parameters. In the case of Colombia, we used the CCC’s online search tool (available on its webpage) with the following search parameters (in Spanish): (i) “educational institution” AND (homosexual OR LGBT), and (ii) “sex education”. The first search yielded 64 decisions, 10 of which focused on issues related to the right to education of LGBTQ students (see Table 3). For the second keyword, as the CCC uses this term for thematic indexing of its decisions, we decided to limit our search to the topic rather than the full text of the judgments. This approach resulted in 12 cases, 11 of which addressed the issue of sex education in schools (see Table 2). In addition, we complemented our search by looking at the online repository of LGBTQ court decisions created by Colombia Diversa-a domestic social movement organization specialized in defending the human rights of LGBTQ people-available on its webpage. This resulted in three additional rulings on the rights of LGBTQ students. In total, our sample comprises 24 cases, all of which have final decisions. To identify the actors who acted as plaintiffs and amici curiae, we reviewed all the judgments, as well as some of the case files when they were also digitalized and made available on the CCC’s website.

2. The Case of Brazil

2.1. Institutional Design, Context and Legal Status

Sexual and reproductive rights (SRR) encompass three sets of rights: one linked to gender-based violence, another linked to gender and sexual diversity (GSD), and yet another linked to reproductive rights (Gloppen, 2021). In the Brazilian context, although some progress has been made in the legislative arena regarding the first set of rights (Maciel, 2011), the recognition of the other two has primarily occurred through litigation before the STF. A stalemate situation in the Brazilian legislative arena influenced the battle for rights such as abortion (Machado; Cook, 2018) and LGBTQ rights (Côrtes; Buzolin, 2024) to be moved from the legislative power to the courts.

The 1988 Brazilian Constitution is celebrated for strengthening fundamental rights. However, this foundation of constitutional rights did not immediately lead the Federal Supreme Court to take up a politically relevant role. The changes in the role played by the STF from apolitical and legalist into a central actor in political debates were influenced by changes in the composition of the body and by institutional reforms that broadened the court’s authority and the reach of its decisions (Desposato; Ingram; Lannes Jr., 2015).

Regarding the recognition of LGBTQ rights, the STF has repeatedly demonstrated receptiveness and a willingness to decide and played a key role ruling favourably to stable unions between people of the same gender (ADI 4277 and ADPF 123 [Brazil, 2011a; 2011b]), the possibility for transgender persons to change their names and gender markers on civil records (ADI 4275 [Brazil, 2018]), the criminalization of homotransphobia (ADO 26 [Brazil, 2019]), and the possibility for men who have sex with men to donate blood (ADI 5543 [Brazil, 2020]).

In Brazil, there is currently no federal legislation protecting the rights of students who belong to vulnerable groups linked to GSD, nor are there mandatory norms for implementing CSE programmes. There are also harsh conflicts and marked setbacks linked to public policies.

Debates about CSE in the Brazilian political arena have been marked by conservative actors who target a so-called “gender ideology”, arguing that SRR threaten family and moral values (Rios; Resadori, 2018). In 2011, a federal government initiative developed a courseware called “school without homophobia”. Conservative actors successfully mobilized against the material, framing it as a “gay kit” that would teach children “to be gay”. In 2014, attempts to include the goal of ending discrimination based on gender and sexuality in the Brazilian National Plan of Education faced counter-mobilization and did not succeed (Gianella; Machado; Defago, 2017). In 2019, then-President Jair Bolsonaro suggested that parents should rip out pages of an “adolescent health booklet” featuring a drawing of a vagina and instructions on how to use a condom. Some months later, the distribution of the booklet was interrupted (Peres, 2020).

Furthermore, the mobilization of conservative actors against CSE often employs communication strategies that involve the dissemination of false information presented in a sensationalist manner (Rios; Resadori, 2018). When it comes to legal arguments, these actors often rely on alleged violations of the freedom of religion and of parental authority as an excuse to banish the circulation of ideas and content linked to GSD from society (Rios; Mello, 2023).

At the federal legislative level, there have been several attempts to promote bills prohibiting CSE in schools. Since 2003, following some dialogue about public policies between the Lula administration and feminist and LGBTQ movements, the reaction against GSD started growing with speeches and law proposals contrary to it (Machado, 2018). To date, none of the law proposals has passed (Côrtes; Buzolin, 2024). However, an alternative strategy has arisen. Conservative legislators have succeeded in enacting legislation with prohibitive content at the municipal and state levels. These norms are the subject of cases brought before the STF.

The STF can act as an appeal court regarding cases that discuss the constitutionality of norms incidentally in concrete cases and as a constitutional court regarding abstract norms. Decisions made by the Court in abstract constitutional review cases are binding and produce effects to all people by definition. In concrete constitutional review cases, there are mechanisms to extend the effects of decisions from the parties towards all people. The Brazilian Constitution outlines a list of actors who can take abstract constitutional review cases to the Court. Although this list has expanded access possibilities, it still has limitations, which we will discuss in the next section.

The first cases regarding CSE were decided in 2017 (two provisional measures). There was a peak in cases in 2020, with one decision on provisional measures and eight final decisions (see Graph 1). This surge may be related to the pandemic and the clash between the STF and the Bolsonaro administration (2019-2022), which vocally attacked SRR using the gender ideology frame.

Graph 1 -
Decisions on CSE Over the Years

All the cases decided on the merits regarding CSE are abstract constitutional review cases⁴ and discuss the constitutionality of laws that prohibited addressing content linked to GSD in schools (see Table 1). Seven of these cases have both a final decision and a decision on provisional measures, one has only a final decision, and one has only a decision on provisional measures. The Court has issued a decision in favour of CSE in all the cases, and seven out of eight final decisions were unanimous.

All the cases involved legislation enacted at the municipal or state level. This provided the court with an easy way out to declare the formal unconstitutionality, as the Brazilian Federal Constitution states that legislation regarding the content of education should be issued at the federal level. However, the court went beyond the formal aspect, and the reasoning included other rights and principles such as education, freedom of expression, academic freedom, equality and non-discrimination, democracy, pluralism, child rights, and the protection of LGBTQ students from discrimination.

The constitutional debates about CSE in Brazil have particularly reaffirmed that LGBTQ individuals constitute a vulnerable group in need of specific protection against discrimination. These debates also underscore that freedom of religion or belief cannot be expanded and used as a tool to justify the censorship of GSD. Moreover, they highlight that schools and families often perpetuate discriminatory situations against LGBTQ youth, and that schools play an important role in promoting diversity and protecting students against discrimination and stigmatization (Rios; Mello, 2023).

Table 1 -
Decisions from the STF on Sex Education

YEAR5	CASE	DECISION
2019	ADPF 462	PROVISIONAL MEASURES TO SUSPEND THE APPLICATION OF A NORM THAT PROHIBITED THE USE OF THE EXPRESSIONS “GENDER IDEOLOGY”, “GENDER IDENTITY”, AND “GENDER ORIENTATION” IN THE EDUCATION PLAN AND CURRICULUM GUIDELINES (BLUMENAU-SANTA CATARINA).
2020	ADI 5537, ADI 5580 E ADI 6038	THE COURT DECLARES UNCONSTITUTIONAL THE NORM THAT PROHIBITED “POLITICAL-IDEOLOGICAL INDOCTRINATION” IN SCHOOLS (STATE OF ALAGOAS).
2020	ADPF 461	THE COURT DECLARES UNCONSTITUTIONAL THE NORM THAT PROHIBITED ADDRESSING GENDER AND SEXUAL ORIENTATION IN SCHOOLS (PARANAGUÁ-PARANÁ).
2020	ADPF 467	THE COURT DECLARES UNCONSTITUTIONAL THE NORM THAT PROHIBITED ANY REFERENCE TO GENDER DIVERSITY AND SEXUAL ORIENTATION IN SCHOOLS (IPATINGA-MINAS GERAIS).
2020	ADPF 460	THE COURT DECLARES UNCONSTITUTIONAL THE NORM THAT PROHIBITED THE USE OF “GENDER IDEOLOGY” AND THE EXPRESSIONS “GENDER” AND “SEXUAL ORIENTATION” IN SCHOOLS (CASCAVEL-PARANÁ).
2020	ADPF 457	THE COURT DECLARES UNCONSTITUTIONAL THE NORM THAT PROHIBITED ANY EDUCATIONAL CONTENT LINKED TO “GENDER IDEOLOGY” (NOVO GAMA-GOIÁS).
2020	ADPF 526	THE COURT DECLARES UNCONSTITUTIONAL THE NORM THAT PROHIBITED THE USE OF “GENDER IDEOLOGY” AND THE EXPRESSIONS “GENDER” AND “SEXUAL ORIENTATION” IN SCHOOLS (FOZ DO IGUAÇU-PARANÁ).
2020	ADPF 465	THE COURT DECLARES UNCONSTITUTIONAL THE NORM THAT PROHIBITED THE USE OF THE EXPRESSIONS “GENDER” AND “SEXUAL ORIENTATION”, AS WELL AS CONTENT LINKED TO THOSE TERMS IN SCHOOLS (PALMAS-TOCANTINS).
2020	ADPF 600	THE COURT DECLARES UNCONSTITUTIONAL THE NORM THAT PROHIBITED TEACHING ABOUT GENDER OR ADDRESSING THE ISSUE IN SCHOOLS (LONDRINA-PARANÁ).

• Source: Elaborated by the authors.

Tracking whether the decisions from the STF are being applied in practice and what their effects are is beyond the scope of this article. However, according to a report published by Human Rights Watch (2022), the conservative mobilization against CSE has reached part of its goals, as, after facing political persecution for addressing CSE or seeing what happened to their peers, teachers became scared. This feeling has impacts that favour the efforts to ban CSE in Brazil, and the decisions that declared the unconstitutionality of norms against CSE do not have the power to make teachers feel safe.

2.2. The Mobilization Actors

2.2.1. Who Has Brought Cases to the STF and Who Can Do So

The 1988 Federal Constitution of Brazil lists the specific actors entitled to file abstract constitutional review actions.⁶ In addition to what is explicitly stated in the constitution, the STF has developed interpretations on this matter.

According to the STF’s interpretation, political parties with representation in Congress and a union confederation or a national class entity must be represented by an attorney, while other actors may represent themselves. Furthermore, the STF has established a distinction between universally authorized parties and specially authorized ones. Universally authorized parties are presumed to have standing and can file abstract control complaints without proving thematic relevance. In contrast, specially authorized parties must demonstrate thematic relevance by showing connection between their statutory objectives or institutional purposes and the content of the challenged norm.

Moreover, the court’s traditional understanding of a “national class entity” was limited to entities representing economic or professional classes.⁷ This understanding has faced criticism both from practitioners and from authors of part of the Brazilian literature on legal mobilization (Gomes, 2020; Côrtes, 2018) who understand that this category should also include civil society organizations. Some organizations repeatedly filed actions challenging this interpretation and asserting their legitimacy. In some cases, their efforts have succeeded, as the STF has accepted some abstract constitutional review cases filed by civil society organizations since 2018.

In six out of the nine cases, the applicant was the Public Prosecutor’s Office (Ministério Público). This actor has played an important role in the recognition of rights of vulnerable groups, although the institutional position can be highly dependent on who occupies leadership roles (Côrtes, 2018). According to Almeida, Barbosa and Ferraro (2020), the institutional role played in bringing cases to the STF is also linked to whoever nominates the Prosecutor General. They evaluate that after Bolsonaro nominated Augusto Aras, the institution lost part of the protagonism it once had in antidiscrimination cases.

In the first of the remaining three cases, the applicant was a political party, the Communist Party of Brazil (Partido Comunista do Brasil-PC do B). In the second case, the applicants were the National Confederation of Workers in Education (Confederação Nacional dos Trabalhadores em Educação-CNTE) and the National Association of Lawyers for the Human Rights of LGBTI-ANAJUDH-LGBTI (Associação Nacional de Juristas pelos Direitos Humanos de LGBTI). However, ANAJUDH-LGBTI was not accepted as an applicant because, according to the reporting judge, the organization failed to prove its national scope.

The involvement of the organization in the complaint demonstrates that civil society organizations can participate in mobilizing cases to the STF even if their names are not listed in the official records. Associative strategies involving civil society organizations, alongside actors traditionally accepted as plaintiffs by the STF, are not something new. Such strategies have been used in the struggles for the right to abortion and those aimed at LGBT rights (Côrtes, 2018).

The third case involved three different complaints that received a joint decision from the Court. The complaints were filed by the National Confederation of Workers in Educational Establishments (Confederação Nacional dos Trabalhadores em Estabelecimento de Ensino-CONTEE), the CNTE and the Democratic Labour Party (Partido Democrático Trabalhista-PDT).

2.2.2. Who Acted as Amicus Curiae and Who Can Do So

According to Brazilian law, the criteria for allowing amici curiae participation include the significance of the subject matter and the representativity of the applicants. However, the way the STF applies these norms is not always systematic, as there is no standardized interpretation of the legal requirements, and different judges might interpret them differently (Côrtes, 2018). Moreover, while the rules for amici curiae admission expand the range of participants, they also pose accessibility challenges that discourage the engagement of civil society organizations with limited financial and human resources. These obstacles encompass financial costs,⁸ submission deadlines,⁹ and the need for legal representation (Almeida, 2019).

In eight out of the nine cases,¹⁰ there was civil society¹¹ participation as amici curiae. A total of thirty-two different organizations used this tool (see Graph 2). Some of them are repeat players: twenty-five participated in more than one case, and seventeen were involved in more than five cases. Additionally, some organizations collaborated, often within the same clusters, on more than one case. There were, therefore, 39 interventions from the 32 interveners.

Graph 2 -
The Amici Curiae Participation

Galanter (1974) works with concepts of powerful litigants (the “haves”) and litigants with limited resources (the “have-nots”). He argues that “have-nots” can achieve advantages in the litigation process by adopting strategies such as becoming “repeat players” and using courts often (as opposed to “one-shotters”) or organizing into support groups. Both strategies are present in the case of Brazil.

By examining the organizations that have taken part in six or more cases, it was possible to identify three individual repeat players, one organization that participated both individually and in partnership with another, and two groups of organizations that collaborated in all the cases they joined.

The biggest individual repeat players were the National Association of Jurists for LGBTI Human Rights (Associação Nacional pelos Direitos Humanos LGBTI-ANAJUDH), the National Association of Evangelical Jurists (Associação Nacional de Juristas Evangélicos-ANAJURE), and the National Association of Public Defenders (Associação Nacional das Defensoras e Defensores Públicos-ANADEP). The Dignity Group (Grupo Dignidade) is also one of the biggest repeat players, participating individually in two cases and in partnership with the LGBTI National Alliance in five others.

Only three of the thirty-two interveners do not support CSE, yet one of them, ANAJURE, is among the biggest repeat players. This intense participation makes the number of unfavourable interventions proportionally more significant than the number of unfavourable organizations (see Graphs 3 and 4).

Graphs 3and 4 -
Organizations /Interventions

ANAJURE is a conservative organization co-founded by Damares Alves, Bolsonaro’s former Minister of State for Women, Family and Human Rights. Alves is a vocal defender of traditional gender roles, an opponent of CSE, and has played a significant role in promoting the concept of the “gender ideology” in Brazil. ANAJURE’s participation in these cases does not indicate support for the way the Court acts. On the contrary, the organization has already publicly manifested both its disapproval of the STF and its alignment with Bolsonaro, especially when concerning LGBTQ rights.

Although the unfavourable mobilization in the political arena is expressive and well-organized (Cardinali, 2017), the data show that, in legal battles, most of the mobilization is driven by those in favour of CSE. The most prominent repeat players in favour of CSE are ANAJUDH, ANADEP, and the Dignity Group, with the latter frequently partnering with the LGBTI National Alliance. ANADEP is a national association of public defenders, while the others are LGBTQ organizations. ANAJUDH is composed of lawyers, and taking part in legal debates is part of its main activities.

The Dignity Group operates on different fronts but has lawyers as part of the organization and has in its bylaws a goal to keep up with legal debates on LGBTQ rights and offer legal aid to LGBTQ persons. However, this does not mean that the path to joining STF cases as amicus curiae has been smooth. The organization’s experience highlights the uncertainty in the application of admission requirements: while trying to join cases discussing trans rights, the Dignity Group had its admission denied in one and accepted in another based on the same criterion-representativity (Côrtes, 2018).

We also identified clusters of organizations that collaborated and jointly participated in all the CSE cases in which they were involved. These clusters can be divided into two main groups based on the scope of the organizations: the feminist group, consisting of six organizations¹² involved in six cases, and the education group, with five organizations,¹³ also involved in six cases.

By examining the amici curiae in the CSE cases brought before the STF, we can identify that most of the one-shotters were academic organizations, while the most relevant repeat players were LGBTQ organizations, a national association of public defenders, and a conservative organization. Feminist organizations and organizations on the right of education have clustered and worked together on all the cases they joined, becoming group repeat players. The Brazilian LOS led to rather organized amicus curiae participation, as most groups that overcame access limitations either became specialized or used their associative capacity to become stronger players.

3. The Case of Colombia

3.1. Institutional Design, Context and Legal Status

The Colombian Constitutional Court (CCC) has played a crucial role in the development of sex education and the protection of the rights of LGBTQ people, including their right to education. In 1991, Colombia adopted a new Constitution that included a comprehensive set of rights and principles (Uprimny; García Villegas, 2004), such as the right to free development of the personality and the principle of respect for human dignity. These provisions later became fundamental in justifying the recognition of LGBTQ rights (Bonilla, 2013). The 1991 Constitution also led to the creation of the CCC, and introduced or strengthened existing legal mechanisms to demand the protection of rights. The new court was granted the power to rule on abstract cases (public actions of unconstitutionality) against laws, decrees, and other norms deemed unconstitutional-a power previously held by the country’s Supreme Court. Additionally, the CCC was given the authority to review all rulings by lower courts on tutela actions-a mechanism similar to the amparo action found in other Latin American countries, which allows individuals to seek the protection of their fundamental rights.

Rulings from the CCC vary in scope depending on the type of legal action. In public action cases, rulings have general effects, as they lead to the confirmation, annulment, or modification of norms issued by the government or Congress. In tutela actions, CCC’s decisions are binding on all other courts in the country, but they primarily affect only the parties involved (inter partes). However, the CCC can and often does extend the effects of its tutela decisions by ordering structural remedies.

In its more than three decades of existence, the CCC has tended to take an activist and progressive stance on sexual and reproductive rights, issuing landmark rulings that led to the decriminalization of abortion under certain conditions and to the recognition of equal marriage and adoption for same-sex couples (Albarracín Caballero, 2011; Jaramillo Sierra; Alfonso Sierra, 2008; Jaramillo, 2021; Lemaitre Ripoll, 2009; López Medina, 2016). As many of these authors have argued, the appointment of judges with liberal ideas, a strong rights consciousness, and training in a neo-constitutionalist tradition have been key factors in the “rights revolution” that has occurred in Colombia regarding women’s and LGBTQ rights. Although judges with conservative ideas and a more formalist approach to the law have also served on the CCC, the configuration of power within the institution has mostly favoured the development of a pro-sexual and reproductive rights agenda.

The CCC has played a crucial role in the field of CSE. On sex education, the Court’s decisions have established the right of students to receive sex education in both public and private schools, as well as the state’s obligation to provide such education. The CCC has also protected the right to education of students who faced discrimination or sanctions for alleged “sexual misconduct” in schools. In such cases, the CCC held that instead of punishing students with expulsion or other sanctions, schools should make a greater effort to provide CSE. Regarding LGBTQ students, the CCC has strongly protected their right to education, stating that schools may not discriminate based on sexual orientation or gender identity.

During its first three decades (1992-2022), the CCC issued eleven rulings addressing the right to sex education, with ten of these resulting from tutelas (Table 2). The first case, T-440/1992, enacted in early 1992, was a landmark ruling for the development of sex education in Colombia. This tutela was filed by a teacher who faced sanctions for providing sex education content to her students. The Court ruled in her favour, stating that the responsibility for providing sex education rests not only with parents but also with the State and schools. Its decision went further, ordering the government to implement measures “to promote [...] sex education for students in the different educational centres of the country”. This directive was enforced a year later through Resolution 3353 (Colombia, 1993), which established the country’s first official sex education program.

Table 2 -
Decisions from the Colombian Constitutional Court on Sex Education

CASE14	TOPIC
T-440/1992, T-104/1996, T-293/1998	THE RIGHT AND OBLIGATION OF SCHOOLS AND TEACHERS TO PROVIDE APPROPRIATE SEX EDUCATION
T-368/2003, T-864/2005	SEXUAL HARASSMENT OF STUDENTS BY TEACHERS
T-337/1995, T-220/2004, T-918/2004, T-251/2005, T-458/2007	DISCRIMINATION AND SANCTIONS AGAINST STUDENTS BECAUSE OF THEIR SEXUAL BEHAVIOUR
C-085/2016	SEX EDUCATION PROGRAMMES

• Source: Elaborated by the authors.

In the tutela decisions that followed, the CCC reaffirmed its position on sex education. As shown in Table 2, these cases dealt with very different situations, such as teachers accused of providing inappropriate sex education content, students who were victims of sexual harassment in their schools, and students who faced discrimination and sanctions from school authorities due to their sexual behaviour. Although most of these cases were not the result of lawsuits over the content of education, sex education did play a key role in the judicial decision as the Court saw strengthening sex education as a part of the solution to the problems at hand. In many cases, this reasoning led the Court to order general measures aiming to improve sex education. For example, in T-368/2003 and T-864/2005, the CCC argued that the issues of sexual misconduct and harassment made it necessary to insist on the duty of schools to provide sex education, as established in decision T-440/1992. In both cases, the Court ordered that local and national education authorities ensure that the schools involved design and implement sex education programs in accordance with national policy.

The only decision on an abstract case, C-085/16, concerned a lawsuit that sought to make the “sex education class” (cátedra de educación para la sexualidad), created by Law 1146 of 2007,¹⁵ mandatory not only in middle and high school but also in the lower levels of preschool and elementary school. However, the CCC did not rule in favour of this claim. Unlike the mostly unanimous position of previous rulings, this decision was quite close, with 5 out of 9 votes against the plaintiff.

While the issue of gender and sexual diversity was not part of the legal debate in the sex education decisions, the opposite was the case in the rulings on LGBTQ students. All these rulings, as shown in Table 3, resulted from tutelas. Initially, the CCC took a less protective stance, arguing that schools could limit the expression of sexual identity to protect “public morality”. However, from 1998 onwards, its decisions have leaned decidedly in favour of LGBTQ students. From that year on, the Court broadly began to protect students’ interests, requiring the repeal or modification of school policies that restricted their rights and calling on the government to promote laws and public policies to combat discrimination.

Table 3 -
Decisions from the Colombian Constitutional Court on LGBTQ Students

CASE	DECISION
T-097/1994	MILITARY SCHOOLS CANNOT SANCTION STUDENTS SOLELY BASED ON THEIR “HOMOSEXUAL” IDENTITY (IN FAVOUR).
T-569/1994	SCHOOLS MAY SANCTION STUDENTS FOR ENGAGING PUBLICLY IN “HOMOSEXUAL CONDUCT” (AGAINST).
T-037/1995	MILITARY SCHOOLS MAY SANCTION STUDENTS FOR ENGAGING IN SAME-SEX SEXUAL PRACTICES (AGAINST).
T-101/1998	SCHOOLS’ RELIGIOUS AND CONFESSIONAL ORIENTATION IS NOT A VALID REASON TO DENY THE RIGHT TO EDUCATION TO “HOMOSEXUAL” PERSONS (IN FAVOUR).
T-435/2002	SCHOOLS MUST RESPECT STUDENTS’ SEXUAL ORIENTATION AND MAY NOT ESTABLISH RULES THAT RESTRICT ITS DEVELOPMENT (IN FAVOUR).
T-562/2013, T-565/2013, T-804/2014	SCHOOLS MUST RESPECT STUDENTS’ GENDER IDENTITY AND MAY NOT SANCTION THEIR GENDER EXPRESSION (USE OF MAKE-UP, FEMININE/MASCULINE CLOTHING AND ACCESSORIES) (IN FAVOUR).
T-141/2015	THE COURT REITERATES THAT SCHOOLS MUST RESPECT SEXUAL ORIENTATION AND GENDER IDENTITY AND ORDERS THE MINISTRY OF EDUCATION (MEN) TO IMPLEMENT A PUBLIC POLICY TO PROMOTE RESPECT FOR SEXUAL DIVERSITY IN HIGHER EDUCATION (IN FAVOUR).
T-478/2015	THE COURT REAFFIRMS THAT SCHOOLS MUST RESPECT SEXUAL ORIENTATION AND GENDER IDENTITY AND ORDERS THE MEN TO IMPLEMENT THE NATIONAL SYSTEM OF SCHOOL COEXISTENCE (CREATED BY LAW NO. 1,620, 2013) ALONG WITH OTHER MEASURES TO PROTECT LGBTI STUDENTS (IN FAVOUR).
T-363/2016, T-192/2020, T-443/2020	SCHOOLS MUST RECOGNIZE STUDENTS’ GENDER IDENTITY ACCORDING TO THEIR SELF-PERCEPTION,WITHOUT SPECIAL REQUIREMENTS SUCH AS OFFICIAL CHANGES TO THEIR NAME AND GENDER IN DOCUMENTS (IN FAVOUR).

• Source: Elaborated by the authors.

Decisions on CSE have had radiating effects beyond the specific benefits to the parties involved. While an assessment of their impact is beyond the scope of this article, a few notable examples can be mentioned. As previously noted, decision T-440/1992 led to the creation of the first national sex education program and, a year later, the General Education Act of 1994 subsequently made sex education compulsory in all schools. Additionally, many schools and universities have revised their student codes and curricula to promote respect for sexual diversity. Furthermore, Congress and governments have enacted laws and public policies on CSE, both to comply with court rulings and on their own initiative. For example, in 2013, Congress enacted Law No. 1,620 to promote “human rights, sex education, and the prevention and mitigation of violence in schools”. That same year, the national government issued Decree No. 1,965 to regulate this law.

Comparatively, these legal advances suggest a more favourable outlook, at least in terms of “law in books”, since statistics on violence and discrimination against LGBTQ people in Colombia remain equally alarming (Colombia Diversa, 2022). This does not mean that conservative-religious opposition is absent or unorganized. On the contrary, there are also influential groups in Colombia using the “gender ideology” frame to oppose SRR (Albarracín Caballero; Lemaitre Ripoll, 2018; Penen, 2015; Rodríguez Peñaranda, 2021). However, their counter-mobilization has been less successful so far, partly due to the protective role of the CCC and their lack of sufficient allies within the political elite. For example, although the governments of Juan Manuel Santos (2010-2018) and Iván Duque (2018-2022) were the result of conservative and right-wing alliances, they did not adopt policies that opposed, or radically opposed, SRR (unlike the stance of the Bolsonaro government in Brazil).

3.2. The Mobilization Actors

3.2.1. Who Brought Cases to the CCC and Who Can Do So

The CCC and the 1991 Constitution provided broad access to the courts, which, early on, stimulated intense litigation by civil society (Uprimny; García Villegas, 2004). This is particularly true for tutelas, which are more accessible than public actions, the latter being a more sophisticated and complex mechanism. According to CCC statistics (published on its website), more than nine million tutelas and over fifteen thousand public actions have been filed since its creation.

The tutela action was designed to provide ordinary people with a simple and rapid mechanism to demand the protection of fundamental rights. The rules governing its use state that any person, including minors, may file a tutela before a judge without needing a lawyer or relying on legal representation. Tutelas may be filed either in writing or orally, and judges are required to rule on them within a maximum of ten days. If either party appeals the decision, a higher court reviews the case. The CCC does not receive tutelas directly, but it has the discretionary power to select the tutelas it deems relevant “to avoid an irreparable harm, or to develop or unify constitutional doctrine” (Jaramillo, 2021, p. 438).

The norms regulating public actions also have provided broad access by allowing any citizen to use them. However, legal formalities and the sophisticated argumentation typically required in these actions by the CCC (where these actions must be filed) have made their use less accessible.

Most of the CSE tutelas were filed by ordinary people who went to court on their own. Of the eleven sex education cases, six tutelas were filed by parents acting on behalf of their children against either the teacher, the school, or the government education office that violated their rights. In the other five cases, the plaintiffs included two teachers-one against his school and the other against a government agency-, an artist against a state official who prohibited the exhibition of his work for considering it “pornographic and against morality” (T-104/1996), and a public family inspector against a court for violating the rights of a minor victim of sexual harassment. Only one of the eleven cases explicitly mentions that the plaintiff was legally represented by a lawyer.

In cases involving LGBTQ students, eleven of the thirteen tutelas were filed by the affected individuals themselves. In seven of these, the plaintiffs were the students, two of whom were minors, while for the other four, their relatives acted on their behalf. In the remaining two cases, T-478/2015 and T-443/2020, the plaintiffs were supported by legal experts. In the first case (known as the Sergio Urrego case), Colombia Diversa launched a strategic litigation to support the plaintiff’s claim of a mother whose son committed suicide after being discriminated against by school authorities. The second case, concerning a minor trans student, was assisted by the legal clinic of Universidad EAFIT with support from the university’s Grupo de Sexualidad Diversa (Diverse Sexuality Group) and the LGBTQ organization Familiares y Amigos Unidos por la Diversidad Sexual y de Género (Family and Friends United for Sexual and Gender Diversity). Finally, in the only public action (C-085/16), the plaintiff was a member of the collective Sin Embarazos en Adolescentes (No Pregnancies among Teenagers).

3.2.2. Who Acted as Amicus Curiae and Who Can Do So

The institutional design of the CCC also facilitated third-party participation (Jaramillo, 2024). The formal and informal rules defining who may participate as amicus curiae (or intervener, as it is commonly known in Colombia) and how they may do so differ in certain aspects depending on the type of legal action. In public actions, any citizen and state actor may file an amicus curiae brief (or intervention) without prior authorization (Decree No. 2067, 1991 [Colombia, 1991a]). Interveners, like plaintiffs, are not required to be lawyers or to be represented by one. Moreover, the CCC does not impose any special requirements on amicus briefs: the content, format, and number of pages and authors can be freely determined by participants.

These conditions also apply to tutelas but with a crucial difference: in tutelas, the possibility of intervening depends on how judges interpret the principle of “legitimate interest”. Decree No. 2591 of 1991 (Colombia, 1991b) established that actors must demonstrate a “legitimate interest” to intervene in tutelas. However, since this norm does not clarify the meaning of this principle, this has led to divisions within the CCC. Some judges have adopted a broad interpretation of “legitimate interest”, opening the judicial decision-making to amicus curiae participation, while others have done the opposite, limiting their involvement (Jaramillo, 2024). These internal disagreements have sometimes led to conflicts between judges and civil society actors when the latter’s attempts to participate before the CCC have been rejected.

Another condition that has affected the participation of amicus curiae is the deadline set by the CCC. In public action cases, actors have only ten days to file their amicus briefs, while in tutelas this time frame is usually shorter (around three to five days). This limited time, combined with the unpredictability and low visibility of the judicial agenda, has become a significant barrier to participation, especially for grassroots organizations and other actors with fewer resources and legal expertise.

Despite existing limitations, certain institutional rules and the existence of judges receptive to third-party participants have created significant legal opportunities for amicus curiae involvement.

Among the 24 cases studied, we found participation in six, all corresponding to cases from 2015 onwards. In these cases, fifty actors from seven different sectors were involved: universities and academic centres (26), state actors (8), legal advocacy and human rights organizations (7), LGBTQ organizations (6), unions (1), private law firms (1), and private citizens (1) (Graph 5).

Graph 5 -
The Amici Curiae Participation

Universities, especially law schools and their legal clinics, have been major repeat players in legal mobilization. Their active participation can be partly explained by their legal resources but also by the fact that the CCC has encouraged their involvement through direct invitations to intervene (Jaramillo, 2024; Romero Tobón, 2016). This is also the case for legal advocacy organizations. For example, universities such as the Universidad de los Andes and Universidad del Rosario, along with civil society organizations such as Colombia Diversa and Comisión Colombiana de Juristas (Colombian Commission of Jurists), have frequently been invited by the CCC to present their opinions in various litigation cases, including those explicitly related to LGBTQ rights.

Similar dynamics are observed with state actors. While the CCC often requests information from state authorities on a mandatory basis, at other times the request is more of a voluntary invitation to participate in the legal debate. All the state actors shown in Graph 5 intervened voluntarily, with the exception of the Procuraduría General (Inspector General’s Office), which is legally required to participate in public action cases. However, we included this actor because, in addition to its mandatory intervention in case C-085/16, it also participated in T-478/2015.

Interestingly, alongside the usual suspects, some grassroots organizations have also acted as amici curiae. The lack of sophisticated legal formalities helps explain why actors with fewer legal resources were able to participate. In addition, these types of actors (one-shotters) often team up with repeat players to engage in legal mobilization, as was the case with Hombres en Desorden, a trans organization that co-filed an amicus brief with Colombia Diversa.

A total of 57 amicus curiae briefs were submitted to the Court. The case with the highest participation was T-478/2015, which received 32 amicus briefs. Several of these briefs were submitted by actors within Colombia Diversa’s network, the organization coordinating the litigation. Regarding the position expressed, only six interventions were unfavourable: five in C-085/2016 and one in T-478/2015. However, even in the first case, some of the briefs did not oppose the rights in question (e.g., the right to sex education), but rather contested specific demands made by the plaintiff.

Strictly speaking, the only two actors who opposed sex education or LGBTQ rights were the Academia Colombiana de Jurisprudencia (Colombian Academy of Jurisprudence-ACJ) and the Inspector General’s Office. The former is a repeat player who has typically adopted a conservative position on SRR (see also Lehoucq, 2021). The Procuraduría, in turn, became one of the most influential and vocal actors against LGBTQ people and SRR during the time it was headed by Alejandro Ordóñez-“a fiercely conservative Catholic”, as described by Albarracín and Lamaitre (2018, p. 33). During his term as Inspector General (2009-2016), Ordóñez used his office’s vast resources and political power to encourage conservative-religious mobilization and to attempt, sometimes successfully, to block legal and political advances favouring sexual and gender minorities (Malagón Penen, 2015; Rodríguez Peñaranda, 2021).

Despite the presence of strong repeat players, legal mobilization against CSE was noticeably lower. Similarly to the case of Brazil, the anti-gender movement in Colombia has been more active and organized in the political field than in the judicial arena. The LOS-particularly the availability of liberal judges and a solid legal framework recognizing fundamental rights-helps to explain why conservative groups did not find the CCC to be an appealing venue for advancing their political goals.

4. A Comparative Look at the Cases

Brazil and Colombia are standout cases of rights expansion processes through courts, especially when it comes to LGBTQ rights. When it comes to CSE, the similarities between the cases lie in the protective positions the courts have had about the CSE issue. The differences, however, are notable. While both courts demonstrate a willingness to address CSE and display a stance in favour of it, differences in the LOS and in the interplay between the LOS and the broader socio-political context-especially concerning the configuration of power and access to the judicial arena-help to elucidate the disparate moments these countries face with regard to legal mobilization around CSE.

While Brazil has not been able to establish CSE programs through legislation, Colombia has issued different laws and other norms to implement sex education programs, protect LGBTQ students, and use sex education to prevent child abuse. The gender ideology frame played an important role in the Brazilian political debate and-mobilized by relevant conservative actors in the political arena-contributed to a stalemate situation at the federal legislative level and to advances against CSE at the state and municipality levels. In Colombia, although gender ideology was also mobilized by conservative-religious groups, without enough allies among the political and judicial elites, its use did not have the same power to prevent legal progress for CSE.¹⁶

These conflicts in the political arena influence the differences in the cases brought before the constitutional court in each country. In Brazil, the decisions are resisting conservative advances in the legislative arena, whereas in Colombia they are developing CSE and protecting the rights of LGBTQ students. While the vast majority of the Colombian cases address the concrete rights of the parties involved and focus on respecting sexual orientation and gender identity, the Brazilian cases are abstract constitutional review cases that involve norms aimed at turning gender and sexuality into forbidden topics. Additionally, the Colombian Court decided the first cases on these issues in the 1990s, whereas all the decisions from the Brazilian Court have been issued from 2017 onwards, with a peak in 2020-a year marked by the covid-19 pandemic and a clash between the STF and then-President Jair Bolsonaro, openly against SRR.

Moreover, in line with Hilson’s (2002) argument, we found that the relationship between legal and political opportunities influenced the choice to resort to the courts. In Brazil, pro-CSE actors-facing setbacks in the political arena, a deadlocked federal legislative arena and defeats at other legislative levels-turned to the STF, which had already shown an inclination to decide in favour of LGBTQ rights. Mobilizing the STF paid off, as in all nine cases we analysed, the court recognized the unconstitutionality of regulations that sought to limit CSE in schools.

The institutional design of constitutional courts in Brazil and Colombia also has accentuated differences, especially in terms of access. Both countries adopt hybrid constitutionality review models, conducting both concrete and abstract constitutional reviews. However, when it comes to who can bring cases directly to the constitutional courts, in Brazil, standing is restricted to a list of specific actors, further limited by some court interpretations, while in Colombia, access is open to all, with very few formalities (Caldeira, 2020; Uprimny; García Villegas, 2004). The criteria adopted in Brazil by the legislation and the STF’s interpretation can be restrictive even to amici curiae. Requirements include national coverage, representativity, thematic relevance, representation by lawyers, and adherence to formal rules, in addition to the court’s unpredictable schedule (Almeida, 2019; Côrtes, 2018; Gomes, 2020).

The restrictions actors face in the Brazilian context, as well as the patterns they must follow, have an isomorphic effect on legal mobilization through courts. Briefs must keep strong legal features rather than serving as instruments for the voices of organized civil society movements to be heard in the constitutional debate. In the Brazilian legal culture, it is expected that amicus curiae interveners present a legal discourse, and this is incorporated even by civil society organizations when mobilizing the STF (Côrtes, 2018).

The Brazilian conservative actors, despite being well-organized in the political arena and capable of achieving results at the municipal and state legislative levels, are not as successful when it comes to the debates before the STF. The actors in favour of CSE, on the other hand, are more numerous and often associate in clusters to provide their contribution and overcome the access limitations. As the possibilities for civil society organizations to bring abstract review cases to STF are also limited, mobilization for CSE has been more focused on taking opportunities created when official actors and political parties bring cases to the Court, allowing them to join the debate and mobilize against the conservative advances in the legislative arena.

Regarding official actors and the importance of understanding who holds positions of power, we highlight the roles played by the Inspector General’s Office in Colombia and the Public Prosecutor’s Office in Brazil. While headed by the conservative Catholic Alejandro Ordóñez, the Inspector General’s Office became one of the few actors against CSE to join the constitutional debates in Colombia and one of the most influential actors in this debate in general, by using the office’s resources and political power to do so. The Brazilian Public Prosecutor’s Office, in turn, played an opposite, yet extremely relevant role, being responsible for filing most of the abstract constitutional review complaints arguing for the unconstitutionality of laws that aimed at prohibiting CSE in schools.

Nevertheless, in Colombia, the LOS created favourable conditions for those seeking to bring their cases to court and act as amicus curiae. With regard to the former, the judicial system established broad standing rules, allowing anyone, regardless of institutional affiliation or professional qualifications, to bring a claim directly before the CCC or, in the case of tutelas, to have their claim reviewed by this court. This broad and easy access, coupled with “rights-friendly judges” (Wilson; Gianella, 2019, p. 141), imposed a relatively low resource threshold for legal mobilization, especially for tutelas.

Thus, individuals and civil society organizations did not need to form alliances with political parties, authorities, or other powerful repeat players in order to go to court. In the case of CSE, this led to a more decentralized and unstructured legal mobilization, based mostly on individual claims brought by one-shotters rather than litigation by well-supported structures. As Wilson and Gianella (2019) argue, such individual and uncoordinated mobilization can be counterproductive for social movement organizations, as forming alliances and building strong support structures is crucial for the success of rights struggles in the long run. However, this more individual, decentralized mobilization can also positively broaden the rights agenda by leading courts to address demands that have not historically been central to the LGBTQ movement’s agenda (Jaramillo, forthcoming).

Civil society actors have also found considerable opportunities to participate as amicus curiae. However, similarly to what occurs in Brazil, short deadlines, an unpredictable judicial agenda, and the common perception of amicus curiae briefs as sophisticated legal documents have created de facto barriers. Thus, while grassroots organizations and other actors with fewer resources have managed to participate in judicial debates, it is primarily legal experts-such as law schools and legal advocacy organizations-who have played a leading role.

Conclusion

In this article, we approached the legal mobilization around CSE in Brazil and Colombia by focusing on the LOS and actors who choose to bring cases to the countries’ constitutional courts or participate as amici curiae. We argue that the legal opportunity structure in the countries, especially the configuration of power and the accessibility of the courts, has shaped their legal conflicts on CSE.

Our findings are consistent with previous studies on legal mobilization and legal change that show that a favourable LOS can foster litigation strategies. Institutional rules that provide affordable and easy access to the courts, for example, can act as an incentive for more active and extensive use of litigation (Albarracín Caballero, 2011; De Fazio, 2012; Wilson; Rodríguez-Cordero, 2006; Uprimny; García Villegas, 2014). On the other hand, remarkably open courts enable litigation regardless of well-developed strategies and coordination (Wilson; Gianella, 2019), while access barriers do not necessarily prevent actors from litigating, as they can mobilize, associate, and create strategies to forge opportunities (Andersen, 2005).

In our study, both countries have mechanisms that enabled legal mobilization around SRR and CSE. Nonetheless, the differences in the level of accessibility, particularly the more flexible standing rules of the CCC, make this court notably more open to civil society participation as compared to the STF. This applies both to who can bring cases before the court and who can participate as amicus curiae.

Further, while the openness of the Colombian Court led to plural yet decentralised and uncoordinated mobilization, in Brazil, a set of institutional features created significant access barriers, leading to more isomorphic legal characteristics in complaints and interventions. Particularly in Brazil, where the obstacles were more prominent, the existence of allies and the use of organizational associative capacity were relevant for developing litigation strategies.

However, access is not all that matters. Other studies highlight the configuration of power within the judiciary as a key factor, especially in understanding the ideological spectrum of the actors who approach the courts (Jaramillo Sierra; Alfonso Sierra, 2008; Lehoucq, 2021). In both Brazil and Colombia, the pro-CSE sectors have found in the more liberal and rights-oriented orientation of the judges an incentive to resort to the courts to defend their objectives. For the same reason, in both cases, this configuration has influenced conservative groups to be less inclined to use litigation actively, instead focusing their efforts on the political arena, where they have found more political opportunities to advance their objectives.

Moreover, although both courts have made decisions in favour of CSE, the interplay between the configuration of power in the political arena and the superior courts has played an important role in the cases that have been decided. In Brazil, the strong influence of the conservative mobilization against the so-called gender ideology in political arenas, particularly during the Bolsonaro administration, enabled conservative advances at the municipal and state levels, making resistance to these conservative advances a priority for the legal mobilization before the STF. In Colombia, on the other hand, conservative strategies could not stop advances in favour of CSE, leading legal mobilization to focus mostly on securing incremental rights for students. Therefore, while in Brazil the Court has taken on a resistance role, the Colombian Court has assumed a role in expanding rights.

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• 1
  The authors would like to thank Larissa Cristina Margarido and Lívia Gonçalves Buzolin for their useful comments on an earlier draft of this article, the journal’s anonymous reviewers for their careful reading and insightful comments, and the South-South network, an inspiring collective of young scholars, for the collaborative work on this special issue. Ana de Mello Cortes’ work is funded by a grant from the Portuguese Foundation for Science and Technology (Grant Number 2020.06798.BD).
• 2
  This refers to the period analysed in the article. We are aware of the developments that took place in between this article’s acceptance and its publication, but they are outside of the article’s scope.
• 3
  The notation “E”~N means that the mechanism will return documents in which the terms in an expression E appear in any order, as long as there are no more than N words between them. “E” means that the search mechanism will return documents in which the exact expression E appears. “OR” means that the search mechanism will return documents containing any of the specified expressions. The symbol $ replaces none, one, or more characters (which can be any characters) at the beginning, middle, or end of a word.
• 4
  By analysing the decisions issued by a single judge on procedural issues, it was possible to identify that some appeal cases related to CSE reached the STF but were dismissed due to procedural reasons.
• 5
  When there is more than one decision, the year of the latest decision on the case is considered.
• 6
  The President of the Republic; the Executive Committee of the Federal Senate; the Executive Committee of the Chamber of Deputies; the Executive Committee of a Legislative Assembly or the Legislative Chamber of the Federal District; the Governor of a State or the Federal District; the Prosecutor-General of the Republic; the Federal Council of the Brazilian Bar Association; a political party represented in the National Congress; a union confederation or a national class entity.
• 7
  The Court has determined that an entity must be present in at least nine states of the federation to prove its national scope, although exceptions can be made for entities of national significance.
• 8
  Although they do not require payment of fees, they involve costs related to hiring lawyers and travelling to follow the cases (Almeida, 2019).
• 9
  Currently, amicus curiae briefs can be submitted until the case is put on the agenda to be decided. The interested organization is responsible for monitoring cases that may receive interventions. The problem, in this case, is the unpredictability of the STF’s agenda, as some cases are decided within days while others take years (Almeida, 2019).
• 10
  We also monitor a case (ADPF 522) that is not part of this sample, as it does not yet have a decision on the merits. However, it already has eighteen organizations accepted as amici curiae.
• 11
  Official or governmental actors can join, and sometimes are called to do so (for example, the state/municipality involved in the issue and the Attorney General in Direct Actions for the Declaration of Unconstitutionality). In the cases addressed here, although official actors participated, they did not do so as amici curiae.
• 12
  CLADEM: Committee for Latin America and the Caribbean for the Defense of Women’s Rights; Themis: Gender, Justice and Human Rights; Citizenship, Study, Research, Information, and Action; Maria da Penha Institute; Feminist Centre for Studies and Advisory Services; Tamo Juntas Association: free legal aid for women victims of violence.
• 13
  Educative Action Association; City School Apprentice Association; Centre for Studies on Education and Society; Institute of the National Campaign for the Right to Education; ANPAE: National Association for Education Policy and Administration.
• 14
  We use the same coding employed by the Court: “T” indicates rulings from tutelas and “C” signifies rulings from constitutionality cases. The numbers after the slash indicate the year the decision was issued.
• 15
  It is important to note that this law was enacted with the aim of preventing sexual violence and providing comprehensive care for sexually abused children and adolescents. The “sex education class” was considered one of the measures that could contribute to addressing this problem.
• 16
  In this paragraph, as well as throughout the article in general, we refer to formal changes in the legal framework, as our focus does not include evaluating the implementation of laws or court decisions.

• Como citar este artigo
  CORTES, Ana de Mello; JARAMILLO, Juliana. Legal Opportunity Structure and Legal Battles Over Sex Education and LGBTQ Students in Brazil and Colombia. Revista Direito GV, São Paulo, v. 20, e2432, 2024. https://doi.org/10.1590/2317-6172202432

• Editores responsáveis
  Catarina Helena Cortada Barbieri (Editora-chefe). Desk review.

• Pedro Salomon Bezerra Mouallem (Editor-chefe). Duas decisões editoriais, incluindo a decisão final.

• Lívia Gonçalves Buzolin e Siri Gloppen (Editoras convidadas)

Publication Dates

• Publication in this collection
  25 Oct 2024
• Date of issue
  2024

History

• Received
  09 Oct 2023
• Accepted
  30 Apr 2024