A Human Rights Analysis of HIV in the Yogyakarta Principles


Kathmandu (Pahichan) May 22 – The past ten years have witnessed tremendous advances for HIV and lesbian, gay, bisexual, trans, and intersex (LGBTI) rights globally, including the creation of an Independent Expert on Sexual Orientation and Gender Identity (SOGI) mandate at the UN Office of the High Commissioner on Human Rights. However, this progress does not outweigh horrific instances of violence committed throughout the world, such as the targeted persecution of gay and bisexual men in Chechnya, violent crackdowns on HIV service providers for gay men and transwomen in Tanzania, and other injustices.

In this context, the Asia Pacific Forum of National Human Rights Institutions (APF) and the United Nations Development Programme (UNDP) co-sponsored a two-day conference in Bangkok to explore the gaps in the Yogyakarta Principles (YP) and assess their impact in promoting and protecting the human rights of LGBTI people. I was proud to represent the Global Forum on MSM & HIV (MSMGF) at the conference, which was attended by over 80 representatives from global, regional, and national civil society organizations, UN agencies working on LGBTI, human rights, and development issues, governments, academia and research institutions, and National Human Rights Institutions (NHRIs) in Asia and the Pacific.

Background

In 2006, a group of international human rights experts convened in Yogyakarta, Indonesia, to outline a set of principles relating to SOGI in the context of international human rights law. The resulting 29 “Yogyakarta Principles” are not legally binding, but rather offer a creative legal interpretation that aims to implore States to respond to human rights violations based on SOGI, commensurate to other human rights obligations. Additionally, the YP were meant to provide a basis for multilateral institutions, NHRIs, and civil society to contextualize well-documented abuses targeting people based on SOGI in the international human rights framework.

In November 2010, An Activist’s Guide to the Yogyakarta Principles was created to facilitate a deeper understanding of the YP and to encourage their use and promotion. The Activist Guide contains sixteen case studies to illustrate applications of the YP, ranging from challenging oppressive legal standards, to developing new policies, to educating the public and building a movement. Indeed, the YP have served increasing utility over time and were even cited in the landmark judgment by the Supreme Court of India that held that transgender people are entitled to be recognized as a “third gender.”

A Drafting Committee has now been formed to pen a “YP+10” document to supplement the Yogyakarta Principles, and it is expected to be released in September 2017. There was consensus at the Conference that the YP+10 document must include updated language about sex characteristics that will enable more entry points for States, civil society, and other stakeholders to address rights violations impacting intersex people. There was also a strong desire among participants for the YP to be more accessible to civil society, for example highlighting which Principles are relevant to various treaty bodies and special procedure mandates, and providing additional case studies beyond those highlighted in the Activist Guide, especially citations of the Principles in court decisions.

MSMGF looks forward to the YP+10 document and using Yogyakarta Principles to inform our human rights work. In order for the YP+10 to be fully utilized by HIV activists, it must take into account the many ways gay, bisexual and other men who have sex with men and transgender women are singled out, humiliated, made fun of, blackmailed, and denied access to basic HIV services they seek.  The YP+10 must also explicitly recognize the linkage between HIV-related stigma, homophobia, and transphobia. At the moment, HIV is only mentioned twice in the YP, with regard to Right to Treatment with Humanity While in Detention and Protection from Medical Abuses. Sadly, the reality is that HIV-related human rights violations occur in many more instances than within medical settings.

Indeed, even among some LGBTI human rights activists, HIV is misunderstood as merely a public health challenge, and the social determinants of negative HIV-related health outcomes are not analyzed at a structural level. At the Conference in Bangkok, more than one attendee made remarks to me that blamed individuals for their HIV status. Gay men and transgender women shoulder disproportionate HIV disease burden in nearly every part of the world. The social and cultural drivers of health disparities like HIV include homophobia, transphobia, poverty, and sex negativity. We must be clear that the same far-reaching impacts of stigma, discrimination, violence, criminalization, and exclusion responsible for human rights violations against the LGBTI community at large are similarly responsible for the decimation of the gay and trans community by AIDS.  

In order to explicate this point, and to help guide a human rights analysis of HIV in the YP, I offer five examples of how the YP+10 document should be formulated to benefit the work of HIV activists throughout the globe—many of whom also recognize that an HIV and human rights approach is the only entry point to even mentioning sexual minorities with government.

1. Addressing Violence and Threats to Sexual and Reproductive Health and Rights

LGBTI people, human rights defenders, and civil society organizations that serve key populations[1] are targeted in violent attacks by both State and non-State actors across the globe. Often these abuses take place with impunity, and responses from authorities to investigate and hold perpetrators accountable are inadequate or nonexistent.

It is essential to recognize that chronic and acute forms of violence inhibit access to life-saving HIV prevention, testing, and treatment services for gay and bisexual men and transwomen. Targeted campaigns against HIV programming for gay men and other key populations, such as in Tanzania, exacerbate stigma and discrimination experienced by HIV-affected communities, creating huge disincentives for individuals to seek medical attention and multiplying other stressors in health systems.

National programs to address SOGI-based violence must contain elements on prevention, remedy, and accountability in a way that respects the safety and privacy of the LGBTI community.

Gender-based violence and threats to sexual and reproductive health and rights are also directly linked to negative HIV outcomes. Transgender and cisgender women and girls who are vulnerable to gender-based violence are known to be at higher risk for HIV transmission. Cuts to family planning efforts in low income countries has also been known to adversely affect the HIV response.

The YP+10 document should name the detrimental effect on HIV services resulting from anti-LGBTI violence, gender-based violence, and threats to sexual and reproductive health and rights.

2. Community-Led Services: Revisiting Right to Freedom of Peaceful Assembly and Association & Right to Highest Attainable Standard of Health

An essential component of an effective, equitable, and sustainable HIV response is the community response. Community-led organizations enable to deliver life-saving prevention, treatment, care, and support services are essential for safely reaching, serving, and supporting LGBTI people. Data from the Global Men’s Health & Rights survey explicates the necessity of accessing services from community-led organizations; this claim has been echoed by the UNAIDS Programme Coordinating Board in the study, An Unlikely Ending:  Ending AIDS by 2030 Without Sustainable Funding for the Community-Led Response.

Indeed, in recognition of the disproportionate burden that gay and bisexual men and transwomen shoulder for the HIV epidemic in nearly every context where data is available, maintaining targeted programming with community ownership is essential.

The YP+10 document must therefore explicate the right of peaceful association to include by extension service providers working with gay, bisexual and transgender communities. In the context of shrinking civil society space and policies around the globe that raise obstacles for LGBTI community groups to register, access funding, and operate smoothly, the YP+10 should reiterate the necessity of these groups not only for the LGBTI community but for the HIV response as well.

3. Right to Equality and Non-Discrimination: in Work, Housing, Movement

Discrimination based on HIV status is often used as a proxy to isolate, marginalize, and exclude gay and bisexual men and transgender women. From forced HIV testing and publicizing of results without consent, to criminalization of HIV transmission, to denial of housing and accommodation, to banning HIV positive people from crossing borders, to denial of health services, States regularly promulgate laws, policies, and practices that differentially treat people living with HIV. We know from experience and data that gay and bisexual men and transgender women are disproportionately targeted.

The Yogyakarta Principles must be vigilant in its interpretation of fundamental rights to include the rights of people living with HIV.

4. Right to Privacy

Throughout the world, gay and bisexual men and trans women are forced to comply with mandatory HIV testing when involved in the justice system, despite the World Health Organization’s 2015 Guidelines on HIV Testing and Counseling, which states that “Mandatory, compulsory or coercive HIV testing is never appropriate.”

Publicizing test results is used to intentionally shame, humiliate, and ostracize the gay and trans communities, fostering a narrative of control and oppression. The HIV status of 14 detained men were recently released to local media in Surabaya, Indonesia, sending a chilling effect to people who may be in need of vital HIV services but are now going underground. This incident prompted widespread outcry from activists.

The YP+10 document must specifically implore States to prevent the disclosure of HIV status without informed consent.

5. Right to Education

Comprehensive sexual education that respectfully and factually delineates HIV transmission risk, while remaining sex positive, is an essential tool in HIV prevention. Individuals can only make informed decisions about their sexual lives after receiving full, nonjudgmental information about HIV risk. Sex education curricula must both enhance understanding of diverse sexual orientations and gender identities and provide comprehensive, sex-positive sexual health information on HIV. 

The value of the Yogyakarta Principles resides in their ability to inform a human rights analysis of international law and State obligations. In 2006, the interpretation focused on sexual orientation and gender identity, offering a tool for civil society, NHRIs, and courts to utilize in the promotion and protection of LGBTI rights. The Activist Guide provided further clarification and useful examples of how the YP promote a variety of LGBTI related issues. As we now revisit the YP and consider how they can become even more effective, we must insist on a holistic human rights analysis that includes the rights of LGBTI people living with HIV, as well as other key populations—sex workers and drug users. This means thinking beyond behavioral and medical interventions and assessing the structural determinants that cause disproportionate burden of HIV in these groups.

This is crucial because in many parts of the world, addressing the human rights of LGBTI people is only possible via HIV-related work. MSMGF has used public health arguments as a wedge to crack open the sometimes-difficult discussions about sexual health and rights. Several LGBTI rights movements were born out of and/or sustained the HIV response, because in many instances gay men and transwomen were among the first responders.

At MSMGF, we envision a HIV movement that works in coalition and solidarity with the needs of all LGBTI people and other key populations that are targeted with punitive laws and social stigma. The HIV movement, and particularly gay and bisexual men within the HIV response, have too often neglected the severity of gender-based violence and sexual and reproductive health and rights violations that threaten the bodily autonomy and integrity of members of our community, especially lesbian, bisexual and other women who have sex with women and trans men. The structural analysis of the HIV disease must also extend to recognize the violence inflicted by patriarchy, racial supremacy, and colonialism on people across the world.

I look forward to joining forces with LGBTI activists and organizations to combat homophobia, transphobia, sexism, xenophobia, and all other forces that oppress and marginalize. The Yogyakarta Principles, born in the context of sexual rights and feminist bodily integrity, have the potential to encompass all those who transgress sexual and gender norms. But only an intersectional approach to rights and activism, that includes people living with HIV and begins on the margins, will unlock the Principles’ full potential.

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