George Ayala, NGO Delegate for North America, describes how laws can negatively impact the gay and men who have sex with men communities and offers recommendations in order to enable an environment that affords full health and human rights to all people.
Honorable Member States, members of the UNAIDS Secretariat, Civil Society Observers, and my fellow Delegates to the NGO Delegation of the PCB –
Gay men and other men who have sex with men bear a disproportionate burden of the HIV epidemic in virtually all world regions that reliably collect and report data. Thirty years into the HIV epidemic, global discourse has begun to discuss “the end of AIDS.” This day will not be possible unless attention, resources, political will are targeted at those populations most-at-risk for HIV.
Around the world a common set of laws and policies have been identified that undermine the HIV response among gay men and other MSM.
First, laws negatively impact on PROVISION and QUALITY of HIV programs for gay men and other MSM in multiple ways. For example:
- Rejection of applications for legal registration of NGOs focused on LGBT issues, affecting their ability to secure resources and legitimacy.
- Condoms and HIV education materials are routinely seized as evidence for prosecution
- Criminal laws against consensual sex between men undermine effective HIV program delivery; hinder the development of effective health policies for gay men and other MSM; and result in the exclusion of gay men and other MSM from decision-making arenas
Secondly, laws used to prosecute gay men and other MSM undermine ACCESS to and UTILIZATION of HIV programs in numerous ways. For example:
- Criminal prosecution legitimizes high levels of stigma and discrimination against gay men and other MSM, gay trans men, MSM who use drugs and MSM involved in sex work in communities and healthcare settings
- Violence and other human rights violations against gay men and other MSM are committed with impunity
- Hostile environments contribute to disproportionately high rates of depression, stress, anxiety, substance abuse, and suicide among gay men and other MSM, complicating HIV prevention responses
The situation is typically worse for transgender people, particularly transgender women and transgender sex workers. When the data is available, we see HIV prevalence rates among transgender women ranging from 13% to 56% in parts of Asia to rates as troublesome as 78% among incarcerated transgender communities in Brazil. Seroprevalence among transgender women is equally unacceptably high in developed nations. In the United States, HIV prevalence rates among transgender people are seven times the national average, and again an overwhelming majority of them are transgender women and transgender sex workers. More research is needed to understand HIV risk among transgender men who have sex with men.
Transgender women who engage in sex work face multiple episodes of stigma and harassment from law enforcement officials. Condoms intended for their own protection are used as evidence to warrant arrest, harassment and subsequent prosecution and incarceration. Laws against sex work therefore serve to fuel the HIV epidemic among transgender sex workers. In prisons, transgender women are typically housed in male prison facilities and face higher levels of sexual abuse, rape and violence targeted at them by both the correctional staff and fellow prison inmates, increasing greatly their risk for and vulnerability to HIV.
Clearly, the law plays a SIGNIFICANT role in the global AIDS response among transgender communities.
Transgender women and transgender sex workers are deeply impacted by HIV and yet continue to remain invisible in many high-level policy discussions. The UNAIDS Strategy 2011-2015 clearly identifies the need to target human rights-based HIV-related efforts to reach transgender communities as a key population.
A protective and enabling legal environment is one that affords full health and human rights to all people. It also includes the provision of competent, sensitive medical and HIV services, zero-tolerance to discrimination or violence at any level targeted at gay men and other MSM or transgender people, as well as anti-discrimination laws on the basis of sexual orientation or gender identity, and legal recognition of an individual’s preferred gender identity.
Policy makers, parliamentarians and advocates should take necessary steps to:
[These recommendations can be found on the MSMGF HIV & the Law webpage]:
1) Repeal laws that criminalize or punish consensual same-sex behaviors among adults, preferred gender identities and non-conforming gender expressions so that everyone, irrespective of sexual orientation, sexual identity, gender identity or gender expression can realize their basic health and human rights, including access to HIV-related and other health services without fear of ridicule, blackmail, harassment, arrest or violence.
2) Repeal laws that criminalize HIV non-disclosure, exposure or transmission, which are often used as proxies for human rights abuses against gay men and other MSM and which have absolutely no public health value
As well as:
[These recommendations were included in the MSMGF’s Specialist Submission to the Global Commission on HIV and the Law]:
3. Address the inappropriate enforcement of laws that hinder access to HIV services for gay men and other MSM through coordination, education and training with the judiciary and law enforcement officials
4. Establish laws that protect the health and rights of gay men and other MSM, and bring perpetrators of violence and other human rights abuses against gay men and other MSM to justice
5. Implement know-your-rights campaigns, and create enabling environments in which individuals can lay claim to their rights
6. Integrate the law as a core pillar in all National AIDS Reponses, and adopt a rights-based approach to the HIV response
In addition, the MSMGF strongly recommends that we:
7. Create an annual review process to monitor and evaluate progress of UN Members States in working toward legal reform and the creation of enabling environments for the HIV response.