Shobha Shukla, India: May 2011
A report from the UN Special Rapporteur calls upon nation states to decriminalise consensual same-sex conduct, repeal discriminatory laws relating to sexual orientation and gender identity, repeal laws criminalising sex work, and provide human rights education for health professionals. Criminalisation is not only a breach of a State’s duty to prevent discrimination, it also creates an atmosphere where affected people are disempowered, unable to achieve full realisation of their human rights.
According to a recent UNDP report, India has 30.5 million men who have sex with men (MSM), and over a million Hijra and transgender people. The national HIV prevalence in MSM is estimated at 7.41%, with 24% testing positive in the state of Goa and 18.8% in Mumbai. While MSM in India are at high risk of acquiring and transmitting HIV, only about 4% are able to access appropriate services. The situation is more serious for transgender populations. Here, HIV prevalence can be as high as 42% in Mumbai, and 49% in Delhi. This has been attributed to low levels of awareness, unsafe sexual practices, inadequate services and social marginalisation.
The same report confirms that MSM and transgender people are highly stigmatised in India, with many reporting discrimination when accessing health care services, education, employment and justice. There is also violence perpetrated by police and health care workers. This is a gross violation of human rights.
The new Pehchān programme, implemented by the India HIV/AIDS Alliance and six state partners with Round 9 grant support from the Global Fund For AIDS, TB and Malaria (the Global Fund), is designed to strengthen community-based organisations for MSM, transgender and Hijra populations to address barriers in the delivery of HIV prevention services in a way that protects human rights and prevents violations.
Heterosexuals living with HIV in India also face stigma and discrimination, but for MSMs and transgender populations there is double jeopardy. They are at increased risk of contracting HIV, and face poor access to services. In order to prevent and control HIV, we must protect and promote the human rights of the most vulnerable and marginalised people.
Community organisations and civil society consider overwhelmingly that the Global Fund should urge recipient countries, including India, to introduce appropriate legislation, which decriminalises same sex relationships. Once appropriate laws are in place, steps can be taken at the country level for their proper implementation. Another suggestion was to withhold funding from countries with a record of human rights violations.
The Naz Foundation International (NFI) is headed by Shivananda Khan, and is the recipient of another Global Fund Round 9 grant that supports a regional community-strengthening programme to reduce the spread of HIV among MSM and transgender people.
Shivananda Khan considers the main stumbling block to be legislation. He wonders, “How do we talk of human rights for MSM when, in many countries there are no human rights in general for anybody? The Global Fund needs to engage more strongly at the government level, with its partners [including the World Bank, and World Health Organisation] to ensure that the government recognises the problem, and makes changes in the political and legal environment of the country. The Global Fund will have to engage policymakers and urge them to repeal punitive laws, and lift the ban on homosexuality by decriminalising the whole process.”
In India, one positive development was the landmark judgement by the Delhi High Court, ruling same sex behaviour in consenting adults as legal. But even after two years, a Supreme Court decision (which will be binding in all states) is still awaited. However, Shivananda feels that for the common person on the street there is little change. Socio-cultural conditioning creates rigid mindsets, which are difficult to change overnight. It is not only that we need effective legislation. We also need to address issues around policing in public places, where most transgender people and MSM meet and interact. Here, the police often harass lesbians, gays, bisexuals and transgender people, and blackmail them.
So a lot of work has to be done nationally, once laws change, for all sections of society, to enable them to understand that human rights are there for all, (including MSM and transgender populations), irrespective of who they are and what they do. The Global Fund, ably supported by other agencies - the government, media, and community-based organizations, can together bring about a positive change. It has to be a combined effort, and not an individual one.
Arif Jafar, Country Director, Maan AIDS Foundation, one of the six Pehchān implementing partners, feels that unless legal reforms are done for all high risk populations - be it MSM, injecting drug users (IDUs) or sex workers - we cannot talk about human rights. He cites the example of ‘a guy from Bangalore’ living at a time when homosexuality was not decriminalised. He was taken to a psychiatrist to ‘cure’ his homosexuality. When he approached the Human Rights Commission about this inappropriate approach they expressed inability to intervene and call it a human rights issue – the practice was then criminal in the eyes of the law. So there must be proper laws in place.
Loon Gangte of the Delhi Network of people living with HIV (DNP+) says, “We have learnt by now that in health, if it is not a rights-based intervention then it leads us nowhere. The Global Fund should be investing in human rights. Mere distribution of commodities will not help if we don’t look into the human rights perspective of the community. Because the Global Fund has money, it has the power to lobby against the criminalisation of certain groups, and insist on legal reforms.”
Shaleen Rakesh and Abhina Aher of India HIV/AIDS Alliance, which implements Pehchān, strongly feel that community-oriented programmes of the Global Fund should have a strong human rights component. According to Abhina Aher, “for MSM and transgender people the issue of health is less of a priority as compared to issues of harassment, violence, stigma and discrimination.” She wants the Global Fund to make country coordinating mechanisms (CCMs) stronger by giving them an agenda that works beyond reduction of vulnerability and addresses human rights as well.
Shaleen Rakesh wants “the Global Fund to be more specific in its approach and make budgeted interventions in the area of human rights. It should support specific programming to address human rights barriers and violations. In fact, all proposals should [include] human rights and stigma reduction elements as an integral part of Global Fund grant applications.”
Anand Grover, UN Special Rapporteur on Right to Health, and a senior Supreme Court lawyer heading the HIV/AIDS Unit of Lawyers’ Collective, would like the Global Fund itself to ‘think of walking the human rights talk’. He is forthright in saying, “There is no clarity on human rights within the Global Fund,and there are [many] different lobbies. I think human rights have to be applicable to the Global Fund itself.”
He continues, “We should start thinking of a Global Fund which requires contributions from developing countries, low- and middle- income countries and developed countries. Governments should be told that if they want money from the Fund, they must follow a human rights framework. In this way the Global Fund can be made as leverage to promote human rights.”
An enabling legal and policy environment is absolutely essential in order to achieve universal access to HIV/TB prevention, treatment, care and support. In the words of Helen Clark, Administrator, UNDP, “Every day, stigma and discrimination in all their forms bear down on women and men living with HIV, including sex workers, people who use drugs, MSM, and transgender people. Many individuals most at risk of HIV infection have been left in the shadows and marginalised, rather than being openly and usefully engaged. To halt and reverse the spread [of HIV], we need rational responses, which shrug off the yoke of prejudice and stigma. We need responses which are built on the solid foundations of equality and dignity for all, and which protect and promote the rights of those who are living with HIV and those who are typically marginalised.”
Disclaimer: The views expressed in this note are those of the Key Correspondent and the persons interviewed by them. Whilst the material will contribute to information shared in Sao Paulo at the in-person consultation on the 2011 Partnership Forum, the material is not published as an official communication of the Global Fund to Fight AIDS, Tuberculosis and Malaria.
