High Level Dialogue on Punitive Laws, Human Rights and HIV Prevention among MSM in Asia and the Pacific

By June 1, 2010 Advocacy

A significant number of men having sex with men in the Asia-Pacific region do not have access to HIV prevention and care services as HIV prevalence has reached alarming levels in many countries. If countries fail to address the legal context of the epidemic, this already critical situation is likely to become worse. The implementation of effective, human rights-based national HIV responses requires governments to consider the effect of laws and law enforcement practices on the health of men who have sex with men (MSM) and transgender persons.

This warning came as a key finding in the forthcoming report on “Legal environments, human rights and HIV responses among MSM and transgender people in Asia and the Pacific: An agenda for action”. This report and its key findings were reviewed during the “High-Level Dialogue on Punitive Laws, Human Rights and HIV Prevention among MSM in the Asia-Pacific Region” convened by the United Nations Development Programme (UNDP), APCOM and the Center for Comparative and Public Law (CCPL) at the Faculty of Law, The University of Hong Kong. This event coincided with the International Day Against Homophobia – May 17th, 2010.

The report’s findings and follow up discussion showed that 19 of 48 countries in the Asia Pacific region criminalize male to male sex, and these laws often taken on the force of vigilantism, often leading to abuse and human rights violations. Even in the absence of criminalization, other provisions of law often violate the rights of MSM and transgender persons along with arbitrary and inappropriate enforcement, thereby obstructing HIV interventions, advocacy and outreach, and service delivery. This very debate was at the heart of the recent landmark ruling by the Delhi High Court that Section 377 of the Indian Penal Code unfairly discriminates against men who have sex with men and consenting adults in general.

Over the course of the discussion, the panelists contend how legislation and law enforcement often lags behind national HIV policies, with the result that the reach and effectiveness of programmes for MSM and transgender persons are undermined. This indicates the need for greater coordination between health and justice sectors within government. There has been growing awareness among national policy makers of the need to identify MSM as a key population to be addressed by national HIV programmes. The panelist emphasized that developing strategic partnerships and alliances between affected communities, the legal profession, human rights bodies, parliamentarians and policy makers is critical.

Finally, the discussion highlighted that there are some recent examples of protective laws, judicial and policy actions to improve the legal environment for MSM and transgender people, including important court judgments in Nepal, India, Pakistan, Philippines, Fiji, South Korea and Hong Kong. However, these are exceptional developments and action is required to improve the legal environment in all countries.

This High Level Dialogue concludes the expert and community consultations which have occurred over the past year to inform and guide the content and recommendations of the study. These consultations included the 9th ICAAP Symposium – Overcoming legal barriers to comprehensive prevention among men who have sex with men and transgender people in Asia and the Pacific and two community consultations in Suva, Fiji and Bangkok, Thailand last December. The UN teams in Papua New Guinea and Sri Lanka also hosted local reviews.

The preliminary findings reviewed at the High-level Dialogue are from a study commissioned by UNDP and APCOM. The study considered published research, legislation, legal cases, grey literature, and drew from the regional consultations with community representatives and legal experts. The final report of the study’s findings will be delivered at the XVIII International AIDS Conference, Vienna, at the session on Criminalizing Homosexual Behaviour: Human Rights Violation and Obstacles to Effective HIV/AIDS Prevention, 20 July 2010.