THE “SUSPECT CLASSIFICATION” DOCTRINE AND THE NOTION OF “STRICT SCRUTINY” IN THE FEDERAL SUPREME COURT’S CASE-LAW: ANALYSIS OF THE DIRECT ACTION OF UNCONSTITUTIONALITY 5.543/DF (BLOOD DONATION BY HOMOSEXUALS)

Abstract

Repeatedly the constitutional jurisdiction is activated to ascertain the constitutionality of rules in face of the allegation that they violate disproportionately and excessively the fundamental rights of certain unassisted portions of society. That way, from the analysis of the Federal Supreme Court’s decision in the Direct Action of Unconstitutionality (ADI) 5.543, which declared unconstitutional the acts that considered men who have sex with other men temporarily
ineligible to donate blood, it is asked: is it possible to state that the highest Brazilian court adopted the notion of suspect classification concerning homosexual and bisexual men when applying a stricter analysis of the proportionality in relation to the notion of equality and of non-discrimination of this group? To answer the proposed research problem, the deductive approach method and the analytical procedure method will be used, roviding initially a brief analysis of the foundations used for the declaration of unconstitutionality of the rules that restricted the donation. Next, the suspect  classification and the strict scrutiny doctrines will be explored, demonstrating how these institutes helped to promote and guard the right to equality and non-discrimination in the ADI 5.543 case. Finally, the mention of strict scrutiny in the respective decision and the possible recognition 
of the notion of suspect classification will be analyzed, to protect the right to equality. The conclusion was that, even though indirectly, the
Federal Supreme Court recognizes the notion of suspect classification concerning minority groups that have better chances to be discriminated, as it is the case of homosexual and bisexual men, however, it did not give the case of blood donation by MSM’s a more strict proportionality analysis.
Key-words: ADI 5.543/DF. Suspect classification. Strict scrutiny. Right to equality and non-discrimination. Sexual minorities