O Direito à igualdade e não-discriminação das mulheres na política: a decisão da ADI 5617/DF e a doutrina das categorias suspeitas

Abstract

In Brazil, the pursuit of women’s political participation relies on a series of measures directed to promote better conditions for women to compete for representative positions. Among them, it is possible to highlight the gender quotas instituted by Law n. 9.504/97 (Elections Law) and the party funding percentual destinated for the financing of women’s election campaigns, provided in the 9th article of the Law n. 13.165/2015. However, under the dissonance between the minimal percentual reserved for female applications (30%), and the minimal percentual reserved for female campaigns (5%), the Federal Supreme Court, through ADI 5617/DF, declared the unconstitutionality of the stipulated percentual, comparing it to the minimal percentual of vacancies reserved for women, that is, 30%. In this scope, the present paper aims at answering the following research problem: did the Federal Supreme Court, with the objective of promoting the guard of the right to equality and non-discrimination of women in politics, in the ADI5617/DF judgment, use the suspect classification doctrine and carry out a strict scrutiny of analysis of the proportionality for the declaration of the unconstitutionality of the 9th article of the Law n. 13.165/2015? To answer this research problem, the deductive approach method and the analytical procedure method will be used. The specific objectives of the research are: 1st – to trace a historical panorama concerning the women’s fight for equality in politics, as well as to analyze the affirmative actions of the “gender quotas in politics” destined for the promotion of equality and non-discrimination of women in the political debate fields; 2nd – to develop a brief conceptualization on the theory of the suspect classification and the notion of strict scrutiny, demonstrating how these institutes operate in the moment of analysis of the rules’ (un)constitutionality; 3rd – to verify if there were the recognition of the notion of “suspect classification” by the Supreme Federal Court in the judgment of the Direct Action of Unconstitutionality 5617/DF and if the “strict scrutiny” theory was applied for the declaration of the unconstitutionality of the 9th article of the Law n. 13.165/2015. It is possible to state that this decision does not incorporate the “suspect classification” notion in relation to women, as well as it does not use the notion of strict scrutiny of analysis of the unconstitutionality of the questioned acts.