The Brazilian Data Protection Law for LGBTQIA+ People: Gender identity and sexual orientation as sensitive personal data

Abstract

Data protection laws are an advancement in protecting individuals but are not without criticism. Although discrimination on the grounds of "sexual orientation" and "gender identity" systemically violate LGBTQIA+’s fundamental rights and freedoms, the Brazilian National Congress failed to explicitly list either personal information as sensitive in the Brazilian General Data Protection Law. Exploring the hermeneutical flexibility of this law, this article argues that both "sexual orientation" and "gender identity" are under the sensitive data list. The aliases used in this protection are "sex life" and "race." A human rights-based interpretation of the former leads to the conclusion that "sex life" encompasses "sexual orientation" and/or "gender identity" due to, inter alia, human dignity and non-discrimination imperatives. In turn, Brazil's Supreme Court decisions have considered discrimination over "sexual orientation" and/or "gender identity" to be a form of social racism. Thus, while not explicitly listed, both "sexual orientation" and "gender identity" compose the list of sensitive data under LGPD.