Dear Editor,
On July 2, 2009, the High Court of Delhi, New Delhi, India made history by ruling that consensual sexual acts of adults in private should no longer be criminalized. In so doing, it took a major step forward in the fight against AIDS.
This ruling concerned Section 377 of the India Penal Code which punished “carnal intercourse against the order of nature” and could require imprisonment of homosexuals, lesbians and transgendered people for 10 years to life. One of the decisive arguments put before the high court was the impact of the law in impeding efforts to counter HIV.
The ruling was historical for three reasons. First, it restored the dignity and human rights of millions of men and women in India. Second, it reinterpreted a 150 year old British law that was first institutionalized in British colonies in Delhi itself. This law subsequently spread across the globe where it still goes unchallenged in many countries in the British Commonwealth.
Third, this ruling means that millions of men and women in India now have much more opportunity to access the information and health care they need to avoid HIV infection, or live successfully with HIV if already infected.
In 2006, governments agreed to achieve universal access to HIV prevention, treatment, care and support by 2010. They also agreed to intensify efforts to eliminate all forms of discrimination against vulnerable groups in the response to AIDS. They did so because they knew that only such action would halt and begin to reverse the spread of global AIDS epidemic, both a critical issue facing our planet and a critical aspect of Millennium Development Goal 6.
Last year, UNAIDS commissioned a major study of the legal and policy situation concerning homosexuality and discrimination. It makes disturbing reading. There are still 80 countries worldwide where homosexuality is prohibited, and of those 49 where the situation is “highly prohibitive”; that is where penalties include the death sentence or long prison sentences.
Some 84 out of 132 reporting governments admitted they still had laws that present obstacles to effective HIV prevention, treatment, care and support for vulnerable populations. Laws that criminalize homosexuals represent one of the worst barriers to effective HIV responses, as well
as a pernicious form of discrimination that has no place in the twenty-first century.
Based on national reports on AIDS, countries which fail to protect men who have sex with men against discrimination are less likely to reach these populations with HIV prevention programmes. In some regions, such as the Caribbean, one can discern a clear pattern. In countries where homosexuality is criminalized, HIV prevalence among men who have sex with men ranges from 20-30%. In contrast, in countries where these laws were repealed or never introduced, the HIV prevalence ranges from under 1% to around 10%. We also know that where homosexuality is criminalized, a large percentage of men also have wives and girlfriends-in part to hide their sexual orientation. These women can also be at risk of HIV infection.
The evidence is clear: in countries which protect men who have sex with men from discrimination, there is nearly double the access to HIV prevention services than in countries where there is no such protection. The results are even better where governments actively work with gay communities. Like any human beings, men who have sex with men and transgender men and women enjoy the full panoply of human rights and should be able to organize to realize them.
Where gays have used their rights to fight for HIV information, education and treatment, they have become a force for health and community empowerment, sometimes leading a country’s HIV response.
Bad laws are only part of the problem. Attitudes and impunity are the other. Homophobia and transphobia result in murder, violence, harassment, and vilification. In countries where systematic information is collected the results are stark: every two or three days a person is killed in Brazil in violence connected with his or her sexuality. Mexico has also documented high rates of homophobic violence. In reporting these cases, Mexico and Brazil are also committing to do something about the problem. Rates in other countries are inevitably much higher.
We simply cannot accept a world where discrimination based on sexual orientation and gender identity is the cause of murder, discrimination or death by a treatable disease. India’s court decision is a clarion call for legislators and courts the world over to play their part in effective AIDS responses. UNAIDS applauds this decision and hopes it represents a watershed moment in sweeping away unhelpful laws which impede public health and instead usher in an era of dignity and truly universal access to HIV prevention and treatment.
Yours faithfully,
Michel Sidibé
Executive Director
Joint United Nations Programme
on HIV/AIDS (UNAIDS)
