BETWEEN CONSTITUTIONAL NORMATIVITY AND JURISDICTIONAL EXPANSION: JUDICIALIZATION, JUDICIAL ACTIVISM, AND THE LEGAL-INSTITUTIONAL CONSTRUCTION OF TRANSSEXUALITY AND TRANSGENDERISM WITHIN THE FRAMEWORK OF THE FUNDAMENTAL RIGHT TO HEALTH

Abstract

The right to health is established as a fundamental prerogative of an inalienable nature, imposing upon the State the legal duty to guarantee, promote, and effectively implement it through public policies and positive provisions universally accessible, without any discrimination based on social class, ethnic origin, gender identity, or sexual orientation. It constitutes a direct expression of the principles of human dignity and substantive equality, which stand as structural pillars of the constitutional order inaugurated by the 1988 Federal Constitution, ensuring to all individuals, without distinction, the full enjoyment of the rights to life, health, and well-being. In this context, it becomes imperative to recognize the inclusion of historically marginalized groups—such as transgender individuals, transvestites, Black populations, and refugees—within the sphere of effective protection of fundamental rights, thereby overcoming exclusionary paradigms that have historically marked State action. However, the realization of these rights has encountered obstacles arising from the insufficiency, omission, or inefficiency of public policies implemented by the Executive Branch, thus leading to the increasing involvement of the Judiciary. In this regard, the Judiciary, in light of the principle of the inalienability of judicial review and broad access to justice, cannot refrain from adjudicating violations or threats to fundamental rights, assuming a prominent role in the protection of claims concerning health, decent work, and social inclusion. Within this framework, the phenomenon of the judicialization of public policies emerges, particularly with respect to ensuring the rights of transgender and transvestite populations, whose demands are frequently brought before the courts through the actions of civil society representative entities. The judicialization of the human rights of these minorities thus operates as a mechanism for restoring guarantees historically denied, functioning as an institutional form of resistance in the face of State inaction. Nevertheless, such judicial intervention raises a significant constitutional question: is the Judiciary legitimately empowered, within the framework of contemporary constitutionalism, to actively intervene in the realization of fundamental rights of vulnerable groups when the other branches of government prove to be absent, inert, or ineffective? The 1988 Constitution, by establishing as one of its fundamental objectives the promotion of the well-being of all, free from any form of discrimination—as set forth in Article 3, item IV—provides the normative foundation for judicial action aimed at ensuring the effectiveness of fundamental rights. It is within this context of tension between socially conservative forces and the progressive affirmation of minority human rights that the present study is situated. Through a bibliographical review and from a critical constitutional perspective, it seeks to analyze the contours and limits of judicial action in the enforcement of the rights of transgender and transvestite populations.