Marking a significant step towards achieving the country’s universal access goals, Fiji passed a law decriminalizing consensual homosexuality through the Fiji National Crimes Decree on 1 February 2010. With this legislation Fiji becomes the first Pacific Island nation with colonial-era sodomy laws to formally decriminalize sex between men*.

The new Crimes Decree removes all clauses about “sodomy” and “unnatural acts” and uses gender neutral language in the remainder of the sexual offences section.

“We’d like to congratulate the Government of Fiji on taking a bold step by removing the punitive law,” said Stuart Watson, the Pacific Coordinator of UNAIDS.

“This reform is an important milestone towards achieving a rights-respecting legal framework, not only for men who have sex with men but the entire community in Fiji.”

HIV, the law and human rights in the Pacific

In 2007 the UNAIDS Secretariat and UNDP reviewed the legislation of 15 Pacific Island countries relevant to HIV issues, including discrimination, ethics, access to treatment and privacy and confidentiality. The Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu were included in this project.

Following this review, UNAIDS’ Pacific office along with the UNDP Pacific Center, and the Regional Rights Resource Team (RRRT) convened a meeting in New Zealand with Attorney Generals and Ministers of Health from the countries. Together with leading international and regional experts they discussed HIV, the law and human rights to relation to the specific national laws in the region that impact the response to HIV. The aim was to better support effective and rights-based legal responses to the epidemic.

The participants reaffirmed the importance of implementing “The Pacific Regional Strategy on HIV/AIDS 2007-2008”, endorsed by Pacific Heads of Governments in Samoa in 2004. This regional strategy is an all-encompassing plan that highlights the importance of human rights in any HIV intervention.

Call for review, reform and enactment of appropriate legislation

The Attorney Generals and Ministers of Health then called for the review, reform and enactment of appropriate legislation that reinforces universal human rights to protect and ensure the dignity of all people affected by HIV; that promotes an integrated response to HIV taking into account the interrelation between sexual and reproductive rights and prevention of HIV; and further protects the rights of people in communities regardless of gender, sexuality, sexual or gender identity, or other defining characteristic.

As a result of this initial UN-sponsored consultation, the Republic of the Fiji Islands requested technical assistance from UNAIDS and WHO to help draft comprehensive rights-based HIV legislation for the country. Parallel to the drafting and community consultation process for the national HIV Decree, and based on the High court’s ruling, the colonial era law criminalizing sex between men was removed. This became law on 1 February 2010 through the Fiji National Crimes Decree.

HIV in the Pacific

The 2009 AIDS Epidemic Update notes that there is generally a very low HIV prevalence in the Pacific compared with other regions. In these small island nations adult HIV prevalence tends to be well below 0.1%. National epidemics are overwhelmingly driven by sexual HIV transmission, although the specific populations most affected vary substantially within the region.

According to the Report of the Commission on AIDS in the Pacific the extent to which HIV is transmitted by sex between men in the Pacific is not known. Since most sex between men in the Pacific is hidden, illegal and denied, it is not addressed appropriately in most national HIV plans.

Behavioural surveillance identifies male-to-male sex among youth in Solomon Islands, Vanuatu and Samoa, as well as police and military in Fiji Islands, STI clinic patients in Fiji Islands and Samoa, and seafarers in Kiribati. Despite a possible link between unprotected sex between men and relatively high rates of HIV infection in Papua New Guinea, Fiji, New Caledonia, French Polynesia and Guam, none of these countries has conducted recent behavioural surveillance surveys or qualitative studies about the characteristics of these men, or initiated targeted campaigns to encourage them to use safer sexual practices.

Major obstacles to making such campaigns effective remain, both with the social stigma and the illegal status of homosexual activity. Not only are men ashamed of or embarrassed about disclosing their sexual activity, they are also deterred from finding out what they need to know to reduce their risk or to buy condoms.

Stuart Watson, believes that legal reform will enable better outreach to these communities.

“The change in law is a huge step towards being able to approach all communities with education programmes and prevention resources. This would enable better access to HIV prevention services for all, reducing HIV and sexually transmitted infection risk,” said Mr Watson.

* Male to male relationships are not legal and are punishable by imprisonment in the following 9 Pacific island nations: Cook Islands, Kiribati, Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu.
A further 13 countries and territories in the Pacific do not criminalize men who have sex with men.

Map of countries, territories and areas that have some form of HIV-related restrictions on entry, stay or residence.  

UNAIDS strongly welcomes the elimination of travel restrictions based on HIV status by the Republic of Korea, effective 1 January 2010. It also commends the United States for full implementation of the final rule that removes entry restrictions which means that travellers living with HIV can freely enter the United States of America as of today.

United Nations Secretary-General Ban Ki-moon congratulated President Lee Myung-bak on the Republic of Korea’s decision. “I applaud President Lee for his country’s leadership in ending restrictions towards people living with HIV that have no public health benefit,” said Secretary-General Ban Ki-moon.

“I repeat my call to all other countries with such discriminatory restrictions to take steps to remove them at the earliest.”

The Secretary-General also congratulated President Barack Obama when the US policy change was announced in October 2009. Today's removal of HIV-related entry, stay and residence restrictions, or "travel ban" as it was known, in the United States overturns a policy that had been in place since 1987.

UNAIDS Executive Director Michel Sidibé also hailed the United States and the Republic of Korea for ending entry restrictions towards people living with HIV, calling the policy changes "a victory for human rights on two sides of the globe."

"I call for global freedom of movement for people living with HIV in 2010, the year when countries have committed to achieve universal access to HIV prevention, treatment, care and support," said UNAIDS Executive Director Michel Sidibé.

"Let no country obstruct someone because of their HIV status. Such discrimination has no place in today's highly mobile world," Mr Sidibé continued.

Some 57 countries, territories and areas have some form of HIV-specific restriction on entry, stay and residence that is based on HIV status. These include those that completely ban entry of HIV positive people for any reason or length of stay; and/or are applied to visa applications for very short stays (e.g. tourist visas); and/or are applied to visa applications for longer stays (visas for residency, immigration, asylum or resettlement, study, international employment, and consular service). Such restrictions, strongly opposed by UNAIDS, are discriminatory and do not protect public health.

Some 30 judges from the highest national and regional courts from 15 countries in sub-Saharan Africa met in South Africa on 10-12 December to discuss the role of the judiciary in the AIDS response.

The meeting, convened by the Joint United Nations Programme on HIV/AIDS together with the United Nations Development Programme, the International Association of Women Judges and the International Commission of Jurists included discussions around the latest scientific and juridical developments relevant to the legal response to HIV. In addition to the judges, participants included people living with HIV, representatives of sex workers and men who have sex with men, members of regional parliamentary institutions and non-governmental organisations working on HIV and the law in the region.

The meeting was also convened to respond to concerns that national law and law enforcement across the African continent do not consistently protect people most at risk of HIV infection and those living with HIV.

“Across Africa, laws exist today that f uel discrimination, prevent effective national responses to HIV and violate human rights,” said Michel Sidibé, Executive Director of UNAIDS who delivered the keynote address at the meeting. “Countries must use their legal systems to protect people most vulnerable to HIV and ensure they have access to essential HIV services.”

During the meeting the judges agreed upon a statement of principles aimed at guiding and inspiring members of the judiciary throughout Africa in the context of the epidemic. The statement of principles addresses the following issues: i) the role of the law in responding to the HIV epidemic; ii) Science and evidence-informed decision making; iii) stigma and discrimination; iv) protecting and empowering women: the links between HIV, gender based violence and property rights; v) protecting and empowering marginalised and criminalised communities; vi) ensuring proper application of criminal law; and vii) court proceedings and access to justice.

Over the past 25 years, knowledge about HIV and how to prevent and treat it has evolved significantly within scientific, medical, epidemiological, social and economic disciplines and many important HIV related human rights and legal commitments have been made. However, national law and law enforcement have not always kept pace with these developments and in some cases have even worked against them.

Some interpretation of the law relevant to HIV is still based on outdated paradigms that were formed prior to the availability of HIV treatment which has enabled people living to lead long and productive lives. Recent studies also demonstrate that the risk of transmission is considerably reduced if people living with HIV are following a correct and consistent antiretroviral treatment regimen and do not have other sexually transmitted diseases.

Of particular concern is the recent trend in Africa towards the overly broad criminalisation of HIV transmission and exposure and over the criminalisation of people most affected by HIV, such as men who have sex with men, sex workers, and people who use drugs.

“Criminalisation is radically incompatible with a public health strategy that seeks to encourage people to come forward to find out their HIV status,” said Justice Cameron, a Judge on the Constitutional Court of South Africa.

On a positive note, in some countries, jurisprudence relating to HIV has had a transformative and beneficial impact on the national AIDS response and on public perception of HIV. This includes judgments that declare that discrimination in employment, access to education, medical insurance is unlawful, as well as those that assert the rights to confidentiality and access to medicines for all including prisoners.

At the meeting, participants further discussed the importance of the leadership role of the judiciary in upholding human rights for all, filing against bad laws, ensuring access to the courts for the most vulnerable and giving meaning to constitutional protection in peoples’ everyday lives.

Justice Georgina T. Wood, Chief Justice of Ghana stressed that, “Judges have a key role to play in ensuring that the rights of people living with and vulnerable to HIV are upheld.”

A version of this story was first published at www.unfpa.org

This portrait of father and son from El Salvador is one of 38 images depicting positive images in the “Influential Men photography exhibit”
Credit: David Isaksson

It should have been one of the happiest nights of their lives. A young soldier and his new wife were alone for the first time on their wedding night. Much to the husband’s surprise, there was no blood after they consummated the marriage. They knew the kind of danger this result could bring if anyone found out. Elder women from the village would want to see the sheets, and if there was no blood, the young bride could be hurt, or even killed, for tarnishing her family’s honour.

But several months earlier, the soldier had participated in a training session on sexual and reproductive health, gender equality and the prevention of gender-based violence. He learned that a woman can be a virgin and not bleed during intercourse, and that there may be more to a woman’s honour than her virginity. The soldier cut his finger and let it bleed onto the sheets to save his wife from danger.

The soldier reported this story to the trainers, and it trickled up to the leadership in the Ministry of Health, the Turkish Armed Forces and the United Nations Population Fund (UNFPA). It has stayed with them as a reminder that just one day of education can change – and perhaps save – a person’s life.

Comprehensive training on reproductive health for the Turkish Armed Forces is one of the programmes described in the new publication, Partnering with men to end gender-based violence
Credit Nezih Tavlas

The training session was part of an ambitious effort to educate every young man in Turkey on the importance of sexual and reproductive health, gender equality and the prevention of gender-based violence. It was organized by UNFPA, in partnership with the Ministry of Health and the Turkish Armed Forces.

With no formal curriculum in schools on sexual health, the training was the first time many soldiers learned how to use a condom or gave thought to gender-based violence. To date, 3 million men have been trained, and the project has been made permanent by a decree from the Turkish Armed Forces. Many of the soldiers say the training changed their beliefs about a woman’s right to make her own choices and to live free from violence.

The story is from one of five case studies featured in a new UNFPA publication, Partnering with Men to End Gender-based Violence: Practices that work from Eastern Europe and Central Asia. Other studies document experience in working with non-governmental organisations in the Ukraine, communities in Armenia, institutions in Romania and police officers in Turkey. The studies provide a step-by-step analysis of how projects to address gender-based violence were carried out and the process through which they were implemented.

“If there is one key lesson to be learned from these case studies, it is the value of partnership between men and women,” says Thea Fierens, UNFPA regional director for Eastern Europe and Central Asia. “It is not women or men working alone to end gender-based violence that yields the best results. Rather, it is the partnerships between them that have the greatest impact and reach. Each case study, in its own way, exemplifies this point, and provides a portal – even if only a small one – into what a world free from violence would look like.”

For UNAIDS stopping violence against women and girls is an issue of major concern and has been highlighted as one of nine priority areas outlined in the UNAIDS Outcome Framework 2009-11.

Alongside the featured publication, UNFPA has commissioned an exhibition of photographs, entitled ‘Influential men’, which highlights the power of positive male role models. It aims to raise awareness of the importance of including and engaging men and boys in creating a world in which every individual is treated with dignity and respect.

Click here to view a photo gallery of the exhibition.

UNAIDS Executive Director, Michel Sidibé in Shanghai, China on 23 November 2009. Credit: UNAIDS

UNAIDS Executive Director Michel Sidibé, during his visit to China, commended the People’s Republic of China on rises in domestic spending for HIV prevention and care in spite of a global financial crisis where other countries are weighing the risks of making cuts.

Speaking during the opening of the Fifth Conference for the International Cooperation Programme on AIDS in Shanghai, Mr Sidibé congratulated the country, saying, “China’s progress can invigorate an AIDS response that teaches and inspires the world.”

Also on the panel with Mr Sidibé were China’s Health Minister, Dr Chen Zhu; Mayor of Shanghai, Han Zheng; Vice Director of the Department of International Cooperation, Dr Ren Minghui; Dr Wu Zunyou from the National Centre for HIV/AIDS Control and Prevention (China) and UNFPA's Dr Bernard Coquelin.

Earlier during his visit Mr Sidibé held a bilateral meeting with Health Minister Dr Chen Zhu and acknowledged the country’s progress on the AIDS response.

While HIV prevalence in China is estimated to be less than 0.1 per cent of the total population, the epidemic continues to grow – the majority of new infections are related to injecting drug use and sexual transmission.

China’s senior leaders, including President Hu Jintao and Premier Wen Jiabao, have over the years shown commitment towards addressing the AIDS epidemic. The national budget for HIV prevention and care rose from RMB 390 million (US$48.75 million) in 2003 to RMB 983 million (US$144.13 million) in 2008. The Global Fund to Fight AIDS, TB and Malaria has recently approved a disbursement of US$ 500 million to China to scale up its programmes for HIV prevention, treatment and care.

Mr Sidibé added, “The world eagerly anticipates China’s enhanced role in global governance—and its leadership in the global response to AIDS.”  It has accomplished some of the lowest child and maternal death rates and lowest prevalence of HIV, TB and malaria.

Its “Four Frees and One Care” policy provides free voluntary counselling and testing, free antiretroviral treatment, free services to prevent mother-to-child transmission, free schooling for children orphaned by AIDS, and care for people with HIV in 127 sites nationwide.

Also, China now has more drug replacement clinics and needle social marketing programmes than any other country in Asia.

Speaking about China’s national AIDS programme, Mr Sidibé noted, “This scale of transformation gives me and many others hope that China can make breathtaking strides in other areas of universal access, if the will is there. And I believe it is.”

Mr Sidibé called for human rights, equity and the involvement of the civil society and affected communities in all aspects of the AIDS response.
Earlier in the day Mr Sidibé launched two publications UNAIDS Outlook 2010 and 2009 AIDS Epidemic Update at a press conference. Dr Chen Zhu, Chinese Minister of Health; Dr Hiroki Nakatani, Assistant Director General, AIDS, TB, Malaria and Neglected Tropical Diseases, WHO; and Ms Zhao Chunki, Social worker also participated in the press conference which was webcast live from Shanghai.
The Executive Director plans to meet with China’s Vice Premier, Mr Li Keqiang, as well as launch the highlights of the China Stigma Index that documents the stigma and discrimination experienced by people living with HIV in China.

Later in the week, Mr Sidibé’s will also participate in the launch of two campaign materials on awareness about AIDS: a poster and a public service announcement featuring Chinese basketball star Yao Ming and a group of people living with HIV.

Participants of the Study Tour in Kolkata with staff and Board Members of the NGO, SCIR.

National police officers and National AIDS Programme heads from Cambodia, Maldives, Mongolia, Philippines, and Sri Lanka visited India last mnth to get a firsthand experience of law enforcement initiatives on interventions related to high risk populations.

Organised by the UNAIDS India office with support from the Regional Support Team of Asia-Pacific, the 16 participants visited and interacted with programme staff of police-initiated and supported projects in Kolkata and New Delhi. The purpose of the Study Tour was to learn the approaches of and lessons learned from law enforcement efforts for sex workers and injecting drug users and their vital role in creating a supportive environment for HIV interventions.

In Delhi, the participants visited Shakti Vahini, a non-governmental organization (NGO) working with sex workers on GB Road, one of Delhi’s oldest red light areas. Personal interactions with sex workers provided them with first-person stories of the realities of brothel-based sex work and the relationships the workers have built with the district police. The Tihar Prison, India’s largest prison, showcased the prison’s innovative and comprehensive programme for recovering injecting drug users, a model programme now being promoted in other prisons in India.

The Toll-free Hotline run by the Central Reserve Police Force (CRPF) - which has a national workforce of a million workers – was of great interest to the group. With the assistance of software developed especially for the project, the Hotline takes calls from police personnel from all parts of India on HIV, sexually transmitted infections, drug and substance abuse and provides addresses of counselling centres and welfare schemes of CRPF. The Helpline has responded to thousands of calls for information and for referrals to counselling services.

In West Bengal, the group travelled from Kolkata to Asansol, a large industrial town with a settlement of sex workers. The project DISHA Jana Kalyan Kendra began its work in 1995 with a collaboration with the district police force with the aim of improving the health and socio-economic conditions of sex workers in the town. In addition to providing health services, vocational and job skills training, and pre-school education for children of sex workers, DISHA has worked with the police in reducing criminality in the community.

In Kolkata, the Study Tour participants visited the NGO Society for Community Intervention and Research (SCIR) to observe their work with people who inject drugs (IDUs). The NGO works in the community of Tiljala, the largest slum settlement in Kolkata. It offers educational programmes for children, livelihood training for IDUs as well as an oral substitution treatment programme.

The projects covered in the Study Tour gave a novel perspective on the role of the police sector not only as law enforcers but also as community enablers. Given the legal and judicial frameworks in the countries represented by the participants, these innovations gave rise to challenges on how they may be replicated in their countries. The Study Tour, as a South-South learning opportunity, demonstrated encouraging prospects of police leadership to break new ground.

Geneva/New York, 31 October 2009 — UNAIDS welcomes President Obama’s announcement of the final rule removing entry restrictions based on HIV status from US policy.  The removal of HIV-related travel restrictions in the US overturns a policy that had been in place since 1987. Such restrictions, strongly opposed by UNAIDS, are discriminatory and do not protect public health.

“I congratulate President Obama on announcing the removal of the travel restrictions for people living with HIV from entering the United States,” said United Nations Secretary-General Ban Ki-moon. “I urge all other countries with such restrictions to take steps to remove them at the earliest.”

The United Nations Secretary-General has made the removal of stigma and discrimination faced by people living with HIV a personal issue. He called for the removal of travel restrictions for the first time in his address to the General Assembly during the High Level Meeting on AIDS in 2008. “That they should be discriminated against, including through restrictions on their ability to travel between countries, should fill us all with shame,” said Secretary-General Ban in a speech to the Global AIDS Conference in August last year.

At his request, several countries including his home country, the Republic of Korea, are in the last stages of removing travel restrictions. Other countries that are considering removal of travel restrictions include China and Ukraine. In 2008, the UNAIDS board strongly encouraged all countries to eliminate HIV-specific restrictions on entry, stay and residence and ensure that people living with HIV are no longer excluded, detained or deported on the basis of HIV status.
“Placing travel restrictions on people living with HIV has no public health justification. It is also a violation of human rights,” said Michel Sidibé, Executive Director of UNAIDS. “We hope that other countries that still have travel restrictions will remove them at the earliest.”

Nearly 59 countries impose some form of travel restrictions on people living with HIV. The International Guidelines on HIV/AIDS and Human Rights state that any restriction on liberty of movement or choice of residence based on suspected or real HIV status alone, including HIV screening of international travellers, is discriminatory. Travel restrictions do not have an economic justification either. People living with HIV can now lead long and productive working lives, a fact that modifies the economic argument underlying blanket restrictions; concern about migrants’ drain on health resources must be weighed with their potential contribution.

(from right) Oscar Fernandes, Convener – Parliamentarians’ Forum on HIV/AIDS; UNAIDS Executive Director Michel Sidibé (centre); Dr Charles Gilks UCC India. New Delhi, 9 October 2009
Credit: UNAIDS

UNAIDS Executive Director Michel Sidibé attended an event in Delhi today to recognize the activists whose efforts contributed towards the recent annulment of Section 377 of the Indian Penal Code. The law, which criminalized consensual sex between men and transgendered people, was overturned in a historical judgment by the Delhi High Court on 2 July 2009.

Mr Sidibé congratulated India’s lesbian, gay, bisexual and transgendered communities for their solidarity leading up to the court judgment, declaring it “a victory for tolerance, fairness and equality”.

Mr Sidibé also called on the activist communities to mobilize in the response to HIV and act as a voice for the voiceless for those who are most vulnerable to HIV. “If such laws are removed, India’s HIV prevention programme could serve as a model in the future for other countries around the world,” Mr Sidibé said.

In his address to the award reception, Mr Sidibé also strongly advocated for the removal of punitive laws specifically against sex work and drug use which are detrimental to the AIDS response. He said criminalization risks pushing at communities already at higher risk “into the dark shadows and undermines our efforts to ensure universal access to HIV prevention, care and support services”.

Section 377

The High Court ruling came after a long legal battle in which India’s lesbian, gay, bisexual and transgendered communities made a united effort in order to make their voices heard.

In its court affidavit against Section 377, India’s National AIDS Control Organization had contended that the law hampered HIV prevention efforts. It cited that only 6% of all men who have sex with men have access to HIV prevention, treatment, care and support services, as most of them are reluctant to reveal their same sex behaviour due to fear of extortion, harassment, and violence at the hands of law enforcement authorities. It was noted that Section 377 encouraged people to remain hidden, making it difficult for them to access essential HIV, health and social services.

According to Justices Shah and Muralidhar, the Constitution of India recognizes, protects and celebrates diversity, and they declared Section 377 as a violation of the rights to privacy, liberty, health and equality enshrined in this Constitution.

The event was held to recognize the activist communities whose efforts contributed towards the recent annulment of Section 377 of the Indian Penal Code. New Delhi, 9 October 2009
Credit: UNAIDS

Though the decision was largely seen as a victory for men who have sex with men and transgendered people, it has been hailed as a victory for all – regardless of sexual orientation and gender identity. The judgment is noteworthy and progressive in terms of its rejection of a hetero-normative and homogenous conception of sexuality. The judgment held that morality cannot be held as a ground for restriction of fundamental human rights.

There are around 80 countries worldwide with laws which criminalise same sex behaviour. Through collaborating with civil society as well as other stakeholders UNAIDS works towards removing punitive laws, polices and practices that hamper the AIDS response. This in one of the nine priority areas in the UNAIDS outcome framework 2006-2011.

Representatives from the sexual minority communities in New Delhi also explored with Mr Sidibé ways of successfully engaging with government and health authorities in the wake of the court ruling.

UNAIDS organized a satellite session at ICAAP 09 entitled "Addressing the legal barriers and criminalization of at-risk populations". Credit: UNAIDS/O.O'Hanlon

Legal barriers and criminalization are blocking the empowerment of groups at high risk of HIV infection such as injecting drug users, sex workers and men who have sex with men by denying or obstructing the rights to live healthy and safe lives. To explore and address this global social issue, UNAIDS organized a satellite session at ICAAP on Wednesday 12 August.

Legislation can be a powerful tool in the response to AIDS. When based on human rights standards, and appropriately implemented and enforced, the law can support positive public health outcomes and enable individuals and communities to realize their rights. Many areas of law are critical to an effective AIDS response: public health law, anti-discrimination and equality of women, domestic relations and prevention of sexual violence, intellectual property, social security, laws governing drug use, sex work, prisons.

The ICAAP session brought together representatives from executive, legislative, judicial and law enforcement sectors to find out ways to break down law barriers and criminalization of most-at-risk populations in multiple contexts in Asia and the Pacific. This satellite symposium was an opportunity for legislators, law enforcers and people who have been affected to discuss possible and effective solutions.

“The regional situation regarding criminalization of most-at-risk populations and risky behaviours is not optimistic,” said Anand Grover, UN special rapporteur on the right to health, who is also the chair of the symposium. “The importance of human rights and their protection has become a core principle of the United Nations and in the world today.”

Besides exploring the implications of legal barriers and criminalization on HIV prevention efforts, participants also discussed the critical role played by law enforcers in determining the legal environment and in influencing access to HIV services. The enforcement of legal provisions, or perceived legal directives, by law enforcers is often done in ways that infringe on the human rights of affected populations and serve as additional barriers to access HIV prevention and treatment.

All the participants agreed that there is hesitation in changing existing legal provisions, and a degree of discomfort with possible outcomes. Also, the time required for changes is long, and time is a major factor in effective action against HIV. Thus, while working on change as a long-term solution, it is important to find space and opportunity for constructive action within existing structures.

According to Justices Shah and Muralidhar, the Constitution of India recognizes, protects and celebrates diversity.

The Delhi High Court declared section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private as violative of the rights to privacy, liberty, health and equality enshrined in the Constitution of India. Though the decision was largely seen as a victory for the men who sex with men and transgender people, it is a victory for all – regardless of sexual orientation and gender identity. The judgment is noteworthy and progressive in terms of its rejection of a hetero-normative and homogenous conception of sexuality. According to Justices Shah and Muralidhar, the Constitution of India recognizes, protects and celebrates diversity.

Justice Edwin Cameron of South Africa’s Constitutional Court speaking at a meeting of men who have sex with men in Kathmandu, Nepal said, “Admittance of gays and lesbians is the ultimate measure of a society’s capacity to view humanity in its fullness and of its commitment to equality, justice, secularism, and humane co-existence.” This judgement has propelled India’s AIDS response and human rights movement a giant leap forward in this direction.

"The Delhi High Court has restored the dignity and human rights of millions of men who have sex with men and transgendered people in India,” said UNAIDS Executive Director Mr Michel Sidibé. “Oppressive laws such as Section 377, drive people underground making it much harder to reach them with HIV prevention, treatment and care services.”

Justices Shah and Muralidhar’s judgment is evidence informed and grounded in human rights drawing its argument from case law from India and around the world, international declarations and commitments, scientific studies and UNAIDS policies.

In its affidavit before the judges, India’s National AIDS Control Organization (NACO), taking a opposite stand from that of the interior ministry contended that section 377 has hampered HIV prevention efforts. NACO cited that only 6% of all men who have sex with men have access to HIV prevention, treatment, care and support services, as most of them are reluctant to reveal their same sex behaviour due to fear of extortion, harassment, and violence at the hands of law enforcement authorities. It was noted that section 377 encourages people to remain hidden - making it difficult for them to access essential HIV, health and social services.

According to Jeffrey O’Malley, Director of UNDP’s HIV Practice, “Inappropriate criminalization is a major impediment to achieving universal access. This landmark judgment emphasizes the importance of improving the human rights situation for men who have sex with men and transgender people across the globe. We hope that other countries will follow suit. The realization of human rights for all is not only fundamental to our common humanity, it also is imperative for an effective AIDS response and generating broader health and development benefits.”

According to Justices Shah and Muralidhar, the criminalization of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. The judges referred to Article 12 of the Universal Declaration of Human Rights which states, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

The judges concluded that to stigmatize or to criminalize homosexual only on account of their sexual orientation would be against constitutional morality. The judgment held that morality cannot be held as a ground for restriction of fundamental human rights. Justices Shah and Muralidhar concluded that “while it could be “a compelling state interest” to regulate by law, the area for the protection of children and others incapable of giving a valid consent or the area of non-consensual sex, enforcement of public morality does not amount to a “compelling state interest” to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others.” The judges quoted a leading Indian luminary, Justice Krishna Iyer who said, “... The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority by three quick readings of a Bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate.”

In their conclusion, the judges drew from one of the key principles of the Indian Constitution—inclusiveness. “If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants' or 'different' are not on that score excluded or ostracised. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. Justices Shah and Muralidhar held that Indian “constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the lesbians, gay, bisexuals, and transgender people are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”

In the 2006 United Nations Political Declaration on HIV/AIDS, governments committed to removing legal barriers and passing laws to protect vulnerable populations. Evidence shows that countries which have laws to protect men who have sex with men, injecting drug users and sex workers have provided better access to HIV prevention, treatment, care and support. UNAIDS along with UNDP, the lead Cosponsor, focusing on expanding and strengthening policies and programmes for men who have sex with men, transgender people and HIV, will support countries in removing laws that block effective AIDS response and increasing access to HIV prevention, treatment, care and support.

UNAIDS urges all governments to ensure full respect for the human rights of men who have sex with men, lesbians and transgender people through repealing laws that prohibit sexual acts between consenting adults in private; enforcing laws to protect these groups from violence and discrimination; promoting campaigns that address homophobia, transphobia and stigma, and ensuring that essential health and social services and support are available and accessible.