By Kesaundra Alves
Kesaundra Alves is an attorney-at-law who specializes in public health law in Guyana and the Caribbean region. She holds a Bachelor of Laws Degree from the University of Guyana and a Master of Laws Degree in Heath Law, Ethics and Policy from Dalhousie University in Canada. She is serving her third, one-year term as the Chairperson of the Board of Directors of Georgetown Public Hospital Cooperation.
HIV. Human Immunodeficiency Virus. Prior to the 1980s, HIV was an unidentified disease though it is sure to have existed before for some indeterminable period. However, that all changed in 1981, when a number of gay men and injecting drug users mainly concentrated in California and New York began to present with a rare form of pneumonia and an unusually aggressive type of cancer called Kaposi’s Sarcoma. By the end of that year, more than 100 persons who presented with this severe immune deficiency had died, mostly gay men. A new disease dubbed the “gay cancer” and the “gay plague” had emerged.
By mid-1982, a group of cases among gay men in Southern California suggested that sex was the mode of transmission of this immune deficiency and the research community initially called the syndrome “gay-related immune deficiency” or GRID. The spread of the disease continued and by September of 1982, the US Centers for Disease Control coined the term Acquired Immuno-Deficiency Syndrome (AIDS) for the disease.
AIDS became a hot topic in the media with the so-called “four-H club”, the only four groups of persons originally thought to be at risk of contracting HIV, being constantly highlighted – persons who received contaminated blood transfusions, homosexual men, injecting drug-users and Haitians or people of Haitian origin. Of course, with research, the fact became known that heterosexuals and others were at risk of contracting HIV, but by then HIV and AIDS had become synonymous with homosexuality, drug-use, immigrants, Black people, criminality and immorality. This is what we call today “HIV-related stigma and discrimination” and it remains one of the greatest barriers to HIV prevention, testing, care, treatment and support.
According to Georgetown University Law Professor and author Lawrence Gostin in his 2004 book ‘The AIDS Pandemic: Complacency, Injustice and Unful-filled Expectations’:
HIV is not just another medical condition – like malaria, influenza, or tuberculosis. It is a force more powerful than all nuclear blasts. It brings together the dynamics of life-threatening illnesses, sex and drugs topped too often with death. Fear has propelled many of those with the power to respond into cowardly silence, hypocritical condemnation, or banal words not followed by action.
In Guyana, limited understanding and fear of HIV and AIDS led to the promulgation of a discriminatory law which remains on the books today, though not enforced. Guyana’s 1934 Public Health Ordinance was amended in 1989 to specifically make AIDS a notifiable disease. By virtue of this amendment, notification regarding a person living with the disease must be sent directly to the Ministry of Public Health, and it would basically appear from reading this amendment that everyone who knows someone who has HIV or AIDS is required to report. In accordance with section 22, the burden of notification falls on a wide category of persons including the attending physician, family of the person infected, every person in charge of the patient and even by an occupier of the building in which the infected person lives. This was a clear infringement of many rights to which persons living with HIV were entitled.
In addition to this, in Guyana, as it is with most of the Commonwealth Caribbean, we have laws which criminalise sex work, buggery and attempted buggery and “gross indecency” between men – all of which have remained on the law books since the colonial era. Until recently, cross-dressing was also a crime. But in November 2018, the Caribbean Court of Justice declared this summary offence unconstitutional and struck it down – effectively de-criminalizing and substantively removing the cross-dressing law. Sexual and gender minorities also lack protection under the Constitution’s protection from discrimination clause which makes no reference to sexual orientation and gender identity as grounds on which discrimination is prohibited. Guyana’s 1977 Prevention of Discrimination Act which prohibits discrimination on a number of grounds also fails to extend that protection to persons on the basis of sexual orientation and gender identity.
There are also immigration laws throughout the Caribbean that discriminate against some key populations and persons living with HIV. Sex workers and homosexuals are to be denied entry under the Immigration Acts of Trinidad and Tobago and Belize. Persons suffering from a communicable or contagious or infectious disease are prohibited immigrants in all countries, with Trinidad and Tobago and The Bahamas specifically defining HIV as an infectious disease.
This is the legal framework within which key populations and persons living with HIV exist. As it was then, the evidence today still shows that HIV is borne disproportionately by people and communities already suffering from poverty, hunger, homelessness, inadequate health care, stigma and discrimination. HIV thrives in the least developed countries of the world and occurs in greater prevalence in marginalized groups and communities, such as injecting drug users, sex workers, transgender persons and men who have sex with men (MSM). It is within this context that HIV and the response to it have become, inevitably and irreversibly, entwined with issues of law and human rights.
We are all presumed to be “born free and equal in dignity and rights” [Article 1 of the Universal Declaration of Human Rights (UDHR)] and with the entitlement to human rights including the right to the highest attainable standard of physical and mental health. The right to health encompasses not only a right to healthcare but the right to the underlying preconditions of health including the right to health-related information. The United Nations Commission on Human Rights (UNCHR) has affirmed that sexual and reproductive health is included in the right to the enjoyment of the highest attainable standard of physical and mental health. Hence, States should also be taking positive measures to ensure people’s sexual rights: “including their rights to access sexual and reproductive health services; to seek, receive and impart information in relation to sexuality and reproduction and to sexuality education”. To ensure rights to education and health, governments must impart information, supply appropriate means, and reduce societal exploitation and powerlessness.
Seven of the main international human rights conventions are incorporated into Guyana’s laws through Article 154A (1) of our Constitution and these all embody the right to highest attainable standard of health. Each of these core human rights documents lays down legally binding obligations. States are responsible for not violating rights directly, as well as for ensuring the conditions that enable people to realise their rights as fully as possible. It is understood that for every human right, a government has responsibilities at three levels: (1) they must respect the right; (2) they must protect the right; (3) they must fulfil the right. These human rights are to apply to all persons without discrimination. Any limitations placed on these human rights must be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
It is also important to note, as elaborated by the Committee on Economic, Social and Cultural Rights that “the right to health is closely related to and dependent upon the realisation of other human rights”. Therefore, the right to health cannot stand on its own in isolation from other human rights. There is a general co-dependence among human rights and therefore a failure to safeguard one leads to a failure to realise another.
Criminalised and socially marginalised persons are unlikely to be regular users of government health services. Further, the existence of these laws informs how public health policy in relation to HIV is shaped. There is even stigmatization of persons and groups rendering HIV-related support to these groups, which can make people hesitant to engage in the provision of these services. In an article by Professors Ken Morrison and David Patterson, they note that Dr. Arif Bulkan (who now sits on the UN Human Rights Committee, and who authored the 2004 National Assessment on HIV/AIDS Law, Ethics and Human Rights in Guyana) explained that “criminalization encourages secrecy, which in turn prevents the exchange of information. Whereas heterosexual young men and women freely discuss heterosexual practices and may learn about safe behaviours, such opportunities are lost in relation to homosexual behaviour.”
Notably, there are laws and policies in Guyana that support access to HIV prevention, care, treatment and support. In relation to equal access to health care and protection of workers living with HIV, there exists some legal protection in Guyana. The 2008 Regulations made under The Health Facilities Licensing Act 2007 provides in section 13 that all persons seeking service at a health facility shall be treated equally regardless of age, place of birth, race, creed, nationality, gender and sexual orientation. HIV and AIDS are also specifically addressed in the 2013 Regulations made under the Occupational Safety and Health Act, Cap 99:10. The Regulations provide that a workplace with more than five regular employees must have a written policy on HIV and AIDS which must be in consonance with the National HIV and AIDS Workplace Policy (section 3). The Regulations also provide that no employer shall require any person to undergo any form of testing for HIV as a precondition to an offer of employment (section 5) or during their employment (section 6). Further, an employer cannot require any employee to disclose information regarding their HIV status (section 6) and an employer cannot terminate the services of any employee on the grounds of that employee’s HIV status or perceived HIV status (section 7).
In June 2016, Guyana and other member states of the United Nations re-affirmed their commitment to end AIDS during the seventieth session of the General Assembly attended by Heads of State and Government or their representatives. They adopted the 2016 United Nations General Assembly Political Declaration on Ending AIDS as a public health threat. The Political Declaration recognizes that progress in protecting and promoting the human rights of people living with, at risk of and affected by HIV has been far from adequate, and that human rights violations remain a major obstacle in the response to HIV. Member States pledged to review and reform legislation that may create barriers or reinforce stigma and discrimination and to promote access to non-discriminatory health-care services, including for populations at higher risk of HIV, specifically sex workers; MSM; people who inject drugs; transgender people; and prisoners.
In Guyana and the Caribbean region, we have many laws that need to be repealed, some that need to be amended and others that need to be enforced in order to stop HIV-related stigma and discrimination and move the world closer to ending AIDS. We must challenge ourselves to act against discriminatory laws. Let’s all act now to create positive change for our present and future generations.