The state of human rights in relation to key populations, HIV and sexual and reproductive health
Key Dingake | Friday February 8, 2019 12:31
As we celebrate the UDHR anniversary, we also need to take stock to reflect on humanity’s journey on this incredible path of realising human rights for all. In doing so, we must acknowledge that whilst the rhetoric has been on the inalienable rights of all members of the human family, the reality on the ground has been different, often characterised by the violation of rights of sexual minorities and other marginalised groups.
Increasingly, humanity accepts the proposition that a fair, prosperous, secure and sustainable future is not possible if the rights of every person are not recognised in practice and in law. Perhaps no other public health epidemic has tried this assertion as well as the proclamation of “the equal and inalienable rights of all members of the human family” by the UDHR, as has HIV. HIV is not just a public health matter, it is also a human rights and social justice challenge perpetuated by stigma and discrimination and the failure to guarantee the rights of those most at risk of the disease. As a result, HIV continues to be a major global public health concern, having claimed more than 35 million lives so far. In 2017, 940,000 people died from HIV-related causes globally. There were approximately 37 million people living with HIV at the end of 2017 globally, including 1.8 million people who became newly infected in 2017; [2.World Health Organization (WHO). Geneva: WHO; 2018. HIV/AIDS. ]
Key populations are groups who are at increased risk of HIV infection, irrespective of epidemic type or local context.
According to UNAIDS, key populations include gay, bisexual and other men who have sex with men, people who inject drugs, people in prisons and other closed settings, sex workers and their clients, and transgender people. They often have legal and social issues related to their behaviours that increase their vulnerability to HIV and reduce access to testing and treatment programmes. These behaviours are often criminalised, making it difficult for people to freely access health services for fear of arrests. Young people, due to specific higher risk behaviours, such as inconsistent use of condoms, are often regarded as part of key or vulnerable populations. What these populations have in common is that in many jurisdictions, they are marginalised, criminalised or in conflict with the criminal justice system, and subject to serious violations of the rights enshrined in the Universal Declaration of Human Rights – equality, dignity, non-discrimination, life, liberty, security of the persons, effective remedy, fair trial, freedom from torture, cruel, inhuman and degrading treatment and punishment, arbitrary arrest and detention, freedom of movement, expression, assembly and association, and so on.
Key populations are “key” for a reason. Men who have sex with men, sex workers, transgender people and people who inject drugs not only face HIV risks 14–50 times the general population but are often confronted with double, triple, or quadruple compounded stigma and discrimination, which severely affects their ability to access HIV prevention and treatment resources. [3 Osborne K. ]
Human rights
for key populations:
The situation is perpetuated primarily by discriminatory and punitive legal and policy frameworks that undermine an effective HIV response for key populations, including in countries that have made tremendous progress in addressing HIV within other non-stigmatised and marginalised populations. In 2012, the Global Commission on HIV and the Law, in its landmark report, HIV and the Law: Risks, Rights and Health, presented concrete evidence of the link between punitive and discriminatory legal systems and HIV vulnerability.
For people who inject drugs, among the greatest risks of drug use is heightened exposure to HIV infection. Although sharing infected needles and syringes is the most widespread route of HIV transmission amongst drug users, other drug-taking practices can also put people at risk. Sharing of other drug paraphernalia may also share HIV, and different kinds of drugs can lead to higher rates of sexual risk-taking.
Punitive laws enforced against people who use drugs but do no harm to others fuel the spread of HIV and keep users from accessing services for HIV and health care. Between 2011 and 2014, there was a 33% rise in new HIV infections among people who inject drugs. Around 14% of the 12 million people who inject drugs worldwide are now living with HIV. UNAIDS estimates that people who inject drugs are up to 24 times more likely to be living with HIV than people in the general population.
[5 UNAIDS. Stopping the rise of new infections among people who inject drugs. Geneva: UNAIDS; 2017].
For the 12 million people who inject drugs, including the 1.6 million of them living with HIV, the promise of the UDHR should translate into reform of the approach to drug use. Instead of punishing people who use drugs but do no harm to others, States should offer them access to effective HIV and health services, including harm reduction and voluntary, evidence-based treatment for drug dependence; and decriminalise the possession of drugs for personal use.
Sex workers continue to face criminalisation, violence, discrimination and other forms of human rights violations which increase their risk of acquiring HIV. Sex workers – female, male and transgender adults who have consensual sex in exchange for money or goods, either regularly or occasionally – are among the populations that are being left behind in the HIV response. HIV prevalence among sex workers is 10 times higher than in the general population, yet sex workers are poorly served by HIV services. Many of the human rights challenges, vulnerabilities and barriers encountered by sex workers in accessing HIV services are due to criminalisation and the restrictive laws, regulations and practices they face. Selling and/or buying sex is partially or fully criminalised in at least 39 countries. In many more countries, some aspect of sex work is criminalised, and in other countries, general criminal law is applied to criminalise sex work (for example, laws against loitering and vagrancy). Punitive environments have been shown to limit the availability, access and uptake of HIV prevention, treatment, care and support for sex workers and their clients.
For millions of sex workers around the world, the promise of the UDHR should translate to states reforming their approach to sex work, from one that punishes consenting adults engaged in sex work, to ensuring safe working conditions and providing access to effective HIV and health services and commodities to sex workers and their clients. States must also repeal laws prohibiting consensual sex work and end police harassment and violence against sex workers.
Globally, men who have sex with men are 28 times more likely to acquire HIV than the general population.
In 2017, men who have sex with men accounted for 57% of new HIV infections in Western Europe and North America, 41% in Latin America and the Caribbean, 25% in Asia and the Pacific and the Caribbean, 20% in eastern Europe and central Asia and the Middle East and North Africa, and an estimated 12% in western and central Africa.
About 70 countries still criminalise consensual same-sex conduct, affecting the rights of gay, bisexual and other men who have sex with men. In 13 countries, including Iran, Sudan, Saudi Arabia, Yemen and parts of Nigeria and Somalia, homosexuality may be punishable by the death penalty. As a result, men who have sex with men are less likely to access HIV services for fear of their sexual orientation and identity being revealed.
In 17 countries, “homosexual propaganda” is banned, or “morality laws” actively target public promotion or expression of same-sex realities. Such laws have been introduced in recent years in countries including Russia, Lithuania and Nigeria.
The practical implication of these laws is that information; education and health communications around homosexuality and HIV are prohibited and often criminalised, thus depriving the population of life-saving information for HIV prevention, treatment and care.
A huge proportion of men who have sex with men worldwide have reported experiencing violence due to their sexual orientation. This is especially evident in patriarchal societies such as those in Latin America.
In some areas, public officials or even healthcare workers are committing these offences. The fear of being identified as homosexual deters many men from accessing HIV services, avoiding healthcare check-ups and treatment to keep their sexual orientation secret.
For men who have sex with men, the UDHR needs to translate into states reforming their approach towards sexual diversity. Instead of punishing consensual adult same-sex conduct, they should offer effective HIV and health services and commodities. States must also repeal all laws that punish consensual same-sex intimacy and prevent discrimination based on sexual orientation.
On September 5 2018, the Supreme Court in India ruled that gay sex is no longer a crime in India. The Court held that outlawing gay sex is irrational and indefensible. Before the Supreme Court decision, gay sex was criminalised under Section 377 of the Indian Penal Code, a relic of colonial era laws that outlawed sexual activities “against the order of nature”. This move towards equality came at the right time – when the world is celebrating the 70th Anniversary of Universal Declaration of Human Rights.
According to the WHO report, Transgender people and HIV, transgender people are 49 times more likely to acquire HIV than all adults of reproductive age.
From a young age, they often face stigma, discrimination and social rejection in their homes and communities for expressing their gender identity. Discrimination, violence and criminalisation prevent transgender people from getting the health services, including HIV services, they need to stay healthy.
There are an estimated 25-million transgender people living around the world. The term transgender refers to people whose gender identity and expression are different to social expectations of their biological sex at birth. They may see themselves as male, female, gender non-conforming, or one on a spectrum of other genders. Transgender people have diverse sexual orientation and behaviours. Across the world, transgender people experience high levels of stigma, discrimination, gender-based violence and abuse, marginalisation and social exclusion. This makes them less likely or able to access services, damages their health and wellbeing and puts them at higher risk of HIV. Overlapping social, cultural, legal and economic factors contribute to pushing transgender people to society’s margins.
According to UNAIDS, 17 out of 117 reporting countries have laws that criminalise transgender people.
Such punitive measures hinder transgender people’s ability to access information about HIV risk and prevention. The criminalisation of same-sex sexual activity can also affect transgender people. For example, if a transgender woman is legally recognised as a man because she was assigned male at birth, sex with a birth-assigned man would be illegal. She may risk prosecution if she discusses her own sexual history with a healthcare professional. Laws such as these can legitimise acts of stigma, discrimination and violence against individuals.
This can put transgender people at greater risk of sexual abuse, violence and HIV infection. The vulnerability of transgender people in many countries is exacerbated by incomplete reference to them in legal and policy frameworks that can result in weak legal protection. For transgender persons, the UDHR needs to translate into States reforming their approach towards sexual diversity. Instead of punishing transgender people, they should offer effective HIV and health services and commodities. States must also repeal all laws that punish cross-dressing and prevent discrimination based on gender identity and expression.
States must also ensure transgender people are able to have their affirmed gender recognised in identification documents, without the need for prior medical procedures such as sterilisation, sex reassignment surgery or hormonal therapy.
Every year, 30 million people spend time in prisons or other closed settings and more than 10.2 million are incarcerated at any given time.
At least 90% of prisoners worldwide are adult men, who tend to be economically poor and socially marginalised. It is estimated that 3.8% of the global prison population are living with HIV and 2.8% have active tuberculosis. However, prevalence differs greatly between regions with HIV prevalence greater than 10% reported in 20 low-income and middle-income countries.
The UDHR recognised that all human beings have certain inalienable rights, and this obviously includes prisoners. The adoption of UDHR was followed by the adoption of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR specifically provides that: “all persons deprived of their liberty should be treated with humanity and with respect for the inherent dignity of the human person”.
Young people who are also members of these key population groups have added vulnerabilities just because of their age. For example, age-restrictive laws and policies limit independent access to sexual and reproductive health services such as HIV and pregnancy testing, contraceptives, abortion services and pre- and post-exposure prophylaxis.
Mandatory parental consent and notification requirements also prevent younger people from accessing the relevant information, education and sexual and reproductive health services they require. Additionally, young people often have limited access to sexual and reproductive health services and commodities in places such as schools, detention centres, reform schools and prisons.
The UDHR, in so far as it proclaims the rights of every person, is applicable to young people. Only when human dignity and equality are respected as proclaimed by UDHR can humanity fully realise the rights of every person and mount an effective response to HIV.
The rights to equality or equal protection of the law are often denied or not fully protected when the legislative framework in some countries is inconsistent in legislating the age of consent to sex.
For instance, in some jurisdictions, the age of consent to sex is lower than the age at which young people can independently access sexual reproductive health services, including condoms. These inconsistencies in legal and policy frameworks can have adverse effects on young people in relation to HIV prevention, diagnosis and treatment.
It is a sad reality of our time that realisation of human rights, especially of key populations, is still denied in law and practice in many parts of the world. We must acknowledge that much as we have reason to celebrate the 70th anniversary of UDHR, we also need, to attend, as a matter of urgency, the continuing violation of rights of key populations. (Taylor and Francis Online)