GENEVA, 11 June 2019— UNAIDS applauds the landmark decision of the High Court of Botswana to declare unconstitutional key provisions of Sections 164 and 167 of the Botswana Penal Code. Those provisions criminalized certain private sexual acts and have led to discrimination and violence against lesbian, gay, bisexual and transgender (LGBT) people in Botswana.

“This is a historic ruling for lesbian, gay, bisexual and transgender (LGBT) people in Botswana,” said Gunilla Carlsson, UNAIDS Executive Director, a.i. “It restores privacy, respect and dignity to the country’s LGBT people, and it is a day to celebrate pride, compassion and love. I commend the activists, civil society organizations and community groups that have campaigned so hard for this moment.”

UNAIDS has been working with LGBT groups, civil society organizations and other partners to promote a more enabling legal environment in the country. In recent years, the courts in Botswana have taken a lead in protecting and promoting the human rights of marginalized groups.

Criminalization of consensual same-sex sexual relations is a violation of human rights and legitimizes stigma, discrimination and violence against LGBT people. Criminalization stops people from accessing and using HIV prevention, testing and treatment services and increases their risk of acquiring HIV.

Globally, the risk of acquiring HIV is 28 times higher among gay men and other men who have sex with men than among the general population and 13 times higher for transgender women. Prohibitive legal and policy environments and a lack of tailored services for key populations increase their vulnerability to HIV. UNAIDS urges countries to ensure the full respect of the human rights of all people, regardless of their sexual orientation, through repealing laws that prohibit sex between consenting adults in private, enforcing laws to protect people from violence and discrimination, addressing homophobia and transphobia and ensuring that crucial health services are made available.

“I hope that this decision reflects a move towards a more humane, compassionate and rights-based approach towards same-sex relations worldwide. It should encourage other countries to repeal unjust laws that criminalize same-sex sexual relations and block people’s access to essential services, including to health care,” said Ms Carlsson.

Consensual same-sex sexual relations remain criminalized in at least 67 countries and territories worldwide.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

“The job has just begun. We have come a long way, but we still have a lot to do.” That was the message from Ajit Prakash Shah, who delivered the Delhi High Court judgement in 2009 that led the way to the eventual annulling in 2018 of Section 377 of the Indian Penal Code, which criminalized same-sex sexual relations.

The retired Chief Justice of Delhi High Court was speaking at a meeting hosted by UNAIDS and partners in New Delhi, India, on 15 and 16 May on the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people in India.

“Our aim is to mobilize and organize the community so they can together help each other,” said Bilali Camara, UNAIDS Country Director for India.

The speakers noted that despite recent legal judgements―including the annulling of Section 377 and the decision by the Supreme Court of India in 2014 on the rights of transgender people―the situation for LGBTI people in India had not changed drastically. However, it was noted that there is a perception that there is an increasing understanding of the issues of transgender people among the general public.

“The reason for the spike in crimes against lesbian, gay, bisexual, transgender and intersex people is partly due to a lot of cases now being reported, while earlier they were not being reported. The National AIDS Control Organisation has worked with communities that at one time in history fell onto the other side of the law. It has built models that have worked and are being replicated around India,” said Shree Alok Saxena, the Joint Secretary of the National AIDS Control Organisation.

Marietou Satin, Deputy Director of USAID, India, said, “Excluding any section of society is not only a moral evil, but it also impacts a country as a whole. You are denying a large population from being productive members of society. By including them, you are also investing in your economy. They have a right to contribute. For that, people need access to jobs and safety in the workplace.”

The meeting also saw the establishment of an LGBTI taskforce to provide strategic advice to UNAIDS and the United Nations Development Programme in India on current and emerging LGBTI issues in India, and on policy, programmes and services to address those issues.

The participants noted the need end discrimination, sensitize political leaders and policy-makers and ensure that the LGBTI community has access to all services, including health and education, and employment.

GENEVA, 4 April 2019—UNAIDS and UNFPA, the United Nations sexual and reproductive health agency, are seriously concerned by new criminal law provisions that came into force yesterday, 3 April 2019, in Brunei Darussalam. The provisions, which impose the death penalty for same-sex sexual activity, adultery and for having a child outside of marriage, breach a number of international human rights norms, including the right to be free from torture and from cruel, inhumane or degrading treatment. The provisions will have a significant negative impact on overall health and well-being.  

“These extreme and unjustified punishments will drive people underground and out of reach of life-saving HIV treatment and prevention services,” said Michel Sidibé, Executive Director of UNAIDS. “I strongly urge Brunei Darussalam to suspend or repeal the amendments to the Syariah Penal Code and I offer UNAIDS’ support to ensure that laws are grounded in human rights, based on evidence and protect the most vulnerable.”

Laws that punish sexual orientation, same sex relations and reproductive health care are discriminatory, and have a disproportionate impact on women, creating barriers to accessing health information and services, which in turn increases vulnerability to HIV and other health concerns. Impeding access to sexual and reproductive health and rights, including HIV services, negatively affects public health.

“Every person, without any distinction on any grounds, has an equal right to live free from violence, persecution, discrimination and stigma of any kind. Human rights are universal. Cultural, religious and moral practices and beliefs, and social attitudes must not be invoked to justify human rights violations against any group regardless of gender or sexual orientation,” stated Natalia Kanem, Executive Director of UNFPA.

Criminalization of same-sex sexual conduct has been shown to increase stigma and give license to discrimination, violence and harassment. Evidence shows that where communities are criminalized, they are more vulnerable to violence, less likely to access necessary HIV and other health services, and less able to protect themselves against HIV infection. Criminalizing people also works against reaching the Sustainable Development Goals agreed by the United Nations General Assembly.     

UNAIDS and UNFPA are concerned by increasing conservative and discriminatory policies and rhetoric in a number of countries, which may potentially give rise to violence, stigma and discrimination against people on the basis of gender, gender identity and sexual orientation. Recent discussions with governments in the Asia–Pacific region and beyond have highlighted the need to put evidence-informed and human rights-based laws and policies in place. 

Last December, Brunei Darussalam called for more and better data on its key affected and higher-risk populations in order to ensure more effective outreach. The production of those data, which would help improve Brunei Darussalam’s health-care provisions for key affected and higher-risk populations, will be undermined by the Syariah Penal Code.

UNAIDS and UNFPA support the calls of the United Nations High Commissioner for Human Rights and the open letter of the five United Nations human rights mandate holders to suspend the implementation of the revised penal code and urge all governments to protect the human rights of all people. This includes repealing criminal laws against adult consensual sexual conduct and decisions on reproduction, implementing laws to protect all people from violence and discrimination and ensuring that adequate health services, including sexual and reproductive health services, are accessible, affordable and acceptable to address their needs.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners towards ending the AIDS epidemic by 2030 as part of the Sustainable Development Goals. Learn more at unaids.org and connect with us on Facebook, Twitter, Instagram and YouTube.

UNFPA

UNFPA is the United Nations sexual and reproductive health agency. Our mission is to deliver a world where every pregnancy is wanted, every childbirth is safe and every young person's potential is fulfilled. Learn more at www.unfpa.org.

On the night of 6 February 2009 in Georgetown, Guyana, seven transgender women were rounded up by the police and detained for the weekend. The following Monday, in the Georgetown Magistrates Court, they learned that they had been charged with cross-dressing. They pleaded guilty, were convicted and were each ordered to pay a fine. But not before being admonished by the Magistrate that they were “confused about their sexuality.”

With support from the Faculty of Law University of the West Indies Rights Advocacy Project, U-RAP, the group challenged the nineteenth century Guyanese law that bars men from dressing like women, and women from dressing like men “for an improper purpose”. On 13 November 2018, Guyana’s final court of appeal, the Caribbean Court of Justice (CCJ), ruled unanimously that the law violates the Constitution of Guyana and is therefore void.

“No one should have his or her dignity trampled on, or human rights denied, merely on account of a difference,” CCJ President, Adrian Saunders, said.

For U-RAP Co-Coordinator and law lecturer Tracy Robinson, this was a step towards addressing the unequal power and unequal life chances of many Caribbean people. 

"Laws do not apply evenly to everyone: those with the least resources and those marginalized are at greatest risk. Trans women are not the only ones who face lives which are cut short by state action and state inaction. There are many other instances in which we leave out and exclude those who are integral and part of our societies,” Ms Robinson said.

HIV is one manifestation of the way vulnerable communities are left behind. In the region, HIV prevalence among key populations is much higher than among adults generally. For example, among transgender women in Guyana—one of the few Caribbean countries with data on this population—the HIV prevalence is 8.4%, compared with 1.7% among all adults. Relevant Caribbean data indicate that HIV prevalence among gay men and other men who have sex with men ranges between 1.3% and 32.8%. The combination of discriminatory laws, stigma and discrimination and the relative lack of friendly services for members of key populations drives people underground, blocking them from HIV prevention and treatment services.

But in some countries, partners are acting to challenge the constitutionality of discriminatory laws held over from the colonial era. Through a case also supported by U-RAP, Caleb Orozco challenged the law in Belize that made “carnal intercourse against the order of nature,” which includes anal sex, a crime punishable by up to 10 years imprisonment. On 10 August 2016, Belize became just the second independent Commonwealth Caribbean country to decriminalize sex between men, and the first to do so through its courts.

And in Trinidad and Tobago the High Court ruled in favour of Jason Jones on 12 April 2018, finding that sexual activity between consenting adults should not be criminalized. This ruling was cited in the landmark Indian Supreme Court decision in 2018 decriminalizing gay sex.

UNAIDS is contributing to community engagement and communication around these issues, including supporting public forums in Belize and Trinidad and Tobago and the sensitization of journalists reporting on the transgender community in Guyana.

For the litigants, these victories are one step forward in a long journey towards equity.

“It forces communication between families and their lesbian, gay, bisexual and transgender relatives. It encourages people who are lesbian, gay, bisexual or transgender to come out the closet. It forces institutions to think about their administrative practices and the discrimination they justified based on that law. It forces homophobic people to acknowledge that the constitution covers everyone,” Mr Orozco said.

Litigant and co-founder of Guyana Trans United, Gulliver Quincy McEwan, said “It was very important for us to be heard and get justice.”

Unjust laws can prevent people from accessing the services they need to prevent or treat HIV, and people who use drugs need help and care, not punishment—these are two of the messages from the new Model Drug Law for West Africa. Launched on11 September in Dakar, Senegal, the model drug law aims to guide policy-makers in the region on how to better frame their drug laws.

It is increasingly recognized that the current drug laws are not effective and result in enormous costs. The model drug law shows how countries can modify their laws in order protect the health and welfare of people while at the same time allowing law enforcement to focus on the most serious drug offences.

“The risk of acquiring HIV is 23 times higher among people who inject drugs, yet they still face human rights abuses, punitive legal environments and are left out of health and HIV programming,” said Michel Sidibé, Executive Director of UNAIDS. “It is essential that countries take a human rights-based approach that is grounded in scientific evidence and includes critical harm reduction services to protect the health and welfare of people who inject drugs and their communities.”

Drawn up by the West Africa Commission on Drugs, a group convened by Kofi Annan comprising experts from western Africa, the model drug law notes that barriers to accessing health services for people who use drugs need to be removed. People who inject drugs are one of the groups at highest risk of exposure to HIV, but they remain marginalized and often out of reach of health and social services.

The model drug law suggests removing criminal penalties for people who use drugs and making harm reduction measures available. It has been shown that harm reduction works—when harm reduction services are made available, new HIV infections fall sharply. For drug use, and possession of drugs for personal use, the model drug law sets out alternatives to conviction and punishment.

“Our current drug laws stigmatize and penalize drug users. However, pushing them to the fringes of society or locking them up in ever increasing numbers will not solve the problem. On the contrary, it worsens health issues and puts enormous pressure on the already over-stretched criminal justice systems,” said Olusegun Obasanjo, former President of Nigeria and Chair of the West Africa Commission on Drugs.

The model drug law also seeks to enhance access to essential medicines such as morphine and other opioids to manage pain. Many people in western Africa are denied the pain-relieving medicines that they need because doctors and other health professionals are not prescribing opioids for fear of prosecution. The model drug law suggests special protection for medical staff to help remove barriers to accessing pain relief.

Experience around the world has shown that it is possible to change drug laws for the better. The new model drug law is a step towards making such changes in western Africa.

People have a fundamental human right to make decisions about their lives and bodies. These rights relate to personal choices on, among other things, health care and treatment. For sexual and reproductive rights, key issues include the right of people to decide when, whether and with whom to have sex, to have children and to get married and their ability to express their gender and sexuality.

Leading legal experts from around the world recently met to lay the foundations for a set of principles to address the misuse and abuse of criminal laws that affect basic human rights and impact on health and equality. The principles will be developed in the coming months and will guide civil society and policy-makers in the development and use of laws that guarantee human rights and protect public health.

Tim Martineau, UNAIDS Deputy Executive Director, Programme, a.i., noted at the outset of the meeting that, “While there is significant progress in HIV prevention, treatment and care, there is a big discrepancy in HIV prevention in relation to key populations, who are more vulnerable to HIV infection in many respects because of a lack of legal protection and the unjust criminalization of their behaviour.”

The legal experts focused on criminalization related to sexuality, reproduction, personal drug use and the overly broad criminalization of HIV nondisclosure, exposure and transmission. Around the world, same-sex sexual practices are criminalized in 73 countries, with 13 states imposing the death penalty. Sex work is criminalized in approximatively 116 countries globally and some 72 countries criminalize HIV non-disclosure, exposure or transmission. Criminal laws often increase stigma against already marginalized and excluded groups and have been linked to discrimination and the denial of critical health services. Criminalization also creates an environment in which people are less likely to seek police assistance when their rights have been violated.

Kate Gilmore, the United Nations Deputy High Commissioner for Human Rights, emphasized that the criminal law plays an essential role in the recognition, protection and enforcement of rights, including by tackling impunity for violations of those rights. “Our purpose here is to raise the shield of criminal law by lowering its sword, ensuring better protection through criminal law by reducing the abuse of it.”

Sam Zarifi, the Secretary General of the International Commission of Jurists, said, “The misuse of the criminal law affects the most marginalized people and, in particular, the dispossessed and disenfranchised.”

The meeting was held on 3 and 4 May and was led by the International Commission of Jurists, in partnership with UNAIDS and the Office of the United Nations High Commissioner for Human Rights.

The President of Nigeria, Goodluck Jonathan, has signed a new antidiscrimination bill into law that protects the rights and dignity of people living with HIV.

The HIV/AIDS Anti-Discrimination Act 2014 makes it illegal to discriminate against people based on their HIV status. It also prohibits any employer, individual or organization from requiring a person to take an HIV test as a precondition for employment or access to services.

It is hoped that the new law will create a more supportive environment, allowing people living with HIV to carry on their lives as normally as possible. More than three million people are living with HIV in Nigeria.

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UNAIDS Executive Director Michel Sidibé congratulated the President of the Comoros, Ikililou Dhoinine, on the leadership he has shown in the AIDS response and on a new law his country recently adopted that further protects people living with HIV. Their meeting took place in Moroni on 24 July 2014.

President Dhoinine highlighted that the new law confirms that there are no restrictions on entry, stay or residence for people living with HIV and guarantees access to antiretroviral treatment for all, showing his and his country’s commitment to strengthening the protection of people living with HIV.

President Dhoinine and Mr Sidibé also discussed the role that the Comoros can play in the regional HIV response as a State member of the Indian Ocean Commission. Mr Sidibé encouraged President Dhoinine to advocate national ownership, regional solidarity and increased domestic investment to sustain the AIDS response.

During his three-day visit to the country, Mr Sidibé met with the Vice-President, the President of the National Assembly and the First Lady. Mr. Sidibé also visited a prenatal care centre and met with civil society representatives.

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