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Rights at the Root: Opportunities for State Leadership on Gender, Sexual Orientation and Gender Identity

Part of MSM, HIV and the Road to Universal Access: How Far Have We Come?

August 2008

This text is taken from an address by Joanne Csete, director of programs at the Firelight Foundation, at a side event titled Full Enjoyment of Human Rights by All: Vulnerable Groups, Social Exclusion, and Progress Towards Universal Access, which was held during the UN General Assembly High-Level Meeting on HIV/AIDS, June 9, 2008. The side event was cosponsored by aids2031, amfAR, the Global Forum on MSM & HIV, UNAIDS, and UNDP.

I offer these brief remarks in honor of those courageous colleagues who work to eliminate human rights violations based on sexual orientation and gender identity but who could not be here today because they live in countries where governments do not approve of them, their lovers, their organizations, or their participation in international meetings.

A statement of good intentions about human rights will surely figure in the report from the upcoming high-level session as it has in statements from other General Assembly meetings on HIV/AIDS. Previous declarations from this body have recognized, as in the words of the 2001 UNGASS Declaration of Commitment on HIV/AIDS, that "the full realization of human rights and fundamental freedoms for all is an essential element in a global response to the HIV/AIDS pandemic."

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Unfortunately, when it comes to human rights and HIV, somewhere between the declarations and the practice, many governments fall into a hole. Nothing makes that hole wider or deeper than when sex and sexuality are introduced into policy debates because that so often means the inclusion also of every irrational taboo, moralistic finger-pointing, and cultural stereotype that society can muster.

But we must find our way to rational policy debates on these questions, because we face nothing short of a human rights catastrophe caused by heinous and widespread abuses based on sex, gender, sexual orientation, gender identity, and sex as livelihood. Hatred, ignorance and moral judgmentalism are fueling a horrific war against men who have sex with men (MSM), whether they identify as gay or not; lesbians, bisexual, and transgender people; women facing social, economic and legal subordination; and people in sex work; and all of these people can find common cause in the struggle for sexand gender-related rights. This is a war with far too many fronts, waged through violence -- even murder -- torture, social exclusion, discrimination of all kinds, and hate speech. It is waged too often with impunity and with the active collaboration of the law and agents of the state. Abuses of people on the grounds of their sexual orientation and gender identity should by now be seen as shameful, and it is disturbing that this body of nations has brought so little leadership to stopping them. And it is not just stopping abuses that must be the concern of UN member states, but also safeguarding the sex- and gender-related human rights of all people to a degree that is manifest in their physical and mental health, their full participation in all aspects of life, and the assurance of their inherent dignity. Whether it is the man who has sex with another man but cannot love openly or live openly with that man, the already hyper-criminalized sex worker arrested for the high crime of possessing condoms, the woman in a violent heterosexual union who does not have the right by law to initiate divorce, the transgender person who even in the best of circumstances has to fight for the correct notation of his or her gender on a passport and in the worst of circumstances faces violence and disdain (and probably no passport) -- the reality of all of these and many more terrible abuses must finally figure in national and multilateral AIDS responses and in social and economic policy more broadly.

The opportunities for leadership and action by states in this regard are many:

First, in the reform of unjust laws: From the recent report from the International Lesbian and Gay Alliance, we know that some 86 UN member states criminalize consensual same-sex acts among adults; in 21 of those countries, people convicted of this ostensible crime can serve prison sentences of more than 10 years; and in seven of those countries, they may be sentenced to death. In any country with such unjust statutes, we can count on arbitrary persecution of lesbians, gay men, bisexual, and transgender people, including by the police.

If anyone is at a loss on how to reform such laws, much of the homework has been done for legislators in the form of the Yogyakarta Principles, the outstanding consensus statement of a year ago now endorsed by many nations and welcomed by the high commissioner for human rights. Changing laws, of course, is only one step, as we heard from the Brazil case, but it is an essential one. Secondly, there are important opportunities for leadership obviously through national AIDS responses and also around the table at the Country Coordinating Mechanism (CCM). The Country Coordinating Mechanism, though created for other things, is still a potential platform for human rights leadership, including in respecting the Global Fund rule that NGO representatives to the CCM should be those that legitimately represent affected communities, chosen by those communities without state interference -- and not just those NGOs that are inoffensive to government. If expressions of gender identity and sexual orientation are criminalized, it will be difficult to ensure this kind of representation in the CCM, but the effort can and must be made.

Similarly, with respect to national AIDS commissions -- and beyond. Governments should find ethical and humane ways to generate the kind of data Professor Chris Beyrer presented and must understand that in many cases human rights violations are the other side of the coin of this epidemiologic situation. Ministries of health, of education, of labor, of the interior should all be concerned about the corrosive effect on society of repressing people's right to be who they are sexually and of forcing people to endure secrecy, exclusion, and abuse on these grounds. And organizations that bring to civic life the legitimate assertion of LGBT rights, the rights of women, and the rights of sex workers must be able to flourish; if governments cannot welcome them, they must at least get out of their way.

And in the UN, we may be at a crucial moment of opportunity, with increased consideration of sexual orientation and gender identity in the Human Rights Council and, one hopes, a chance for the General Assembly to show that an expansive vision of justice and human dignity is indeed a central pillar of its work. Precedents are there from other multilateral bodies. Just 10 days ago, the Organization of American States adopted an important resolution highlighting its concern about acts of violence and other human rights violations committed against people because of their sexual orientation and gender identity, a most welcome step.

The government of France recently announced that it plans later this year to lead the General Assembly toward an assertion of human rights of all people regardless of sexual orientation or gender identity. And so we may learn, finally, what it takes to hear clearly from the General Assembly that whom people love and their private expressions of sexuality are not crimes; and that whether enshrined in the law or not, human rights abuse against people because of their sexual orientation or gender identity can never be acceptable. In the meantime, we thirst for an outcry from the UN when heads of member states make outrageous public threats to homosexuals and transgender people, or when national leaders who are lauded for their work in the fight against AIDS themselves commit hate speech against gays and lesbians -- an unacceptable incongruity -- or when gays, lesbians and transgender people are murdered brutally because of who they are. The UN must shine a global spotlight on these atrocities and call them by their name. As the secretary-general considers the appointment of a new high commissioner of human rights, he should choose someone who will bring leadership to this struggle. And UN mechanisms throughout the system must do more to make it easier for LGBT rights groups, sex worker rights groups, and women's rights organizations to participate fully in UN processes.

We have heard the case made here for refocusing HIV services on MSM, and every country should have a plan and a budget to pursue that goal. Our concern about human rights leads to two important conclusions about how that goal should be pursued.

First, if the refocusing of AIDS responses on MSM has the effect of facilitating or sharpening the focus of stigma and other abuse against LGBT people, then that refocusing will serve neither public health nor human rights ends. In any country, an AIDS response that is not explicit in its support of human rights without regard to sexuality and gender can easily become complicit in human rights abuses. And there are far too many documented cases in which knowing one's HIV status or attending an HIV conference has opened the door for persecution or prosecution of people because of their sexual orientation.

Governments have some choices here. They can do as they please but be sure to call it "a rights-based approach" -- this is a popular strategy, as you know -- or they can work to give real meaning to the notion of rights-based action. They can ensure that MSM, lesbians, transgender people, women subordinated in society and law, and people in sex work have a real voice in decisionmaking at all levels. They can not just allow, but support, organizations working in this area to bring leadership to program and policy design, implementation, and evaluation. They can ensure that significant resources are invested in working with judges, prosecutors, police, and private sector leaders in respect for the rights of people outside the sexual and gender mainstream. In places where criminalization remains a barrier, political leaders can distinguish themselves by denouncing unjust laws. And, if the approach is really rights-based, it will be remembered that those who suffer the greatest abuses based on sex, gender and sexuality are those who also live in poverty or face racial, ethnic or disability-based discrimination or live with addictions that criminalize them further. Program strategies must be mindful of these compound abuses.

Secondly, it would be a missed opportunity if the refocusing of HIV/AIDS responses on MSM would mean a focus only on issues related directly to HIV or on the human rights only of those people judged to be at the highest clinical risk of HIV. We have a chance to go beyond AIDS and contribute to a larger movement for promotion, protection, and fulfillment of human rights in this sphere. At this moment in history, there is a growing awareness in many societies of the dangers of allowing fundamentalism and moralizing to trump tolerance and scientific evidence in the policy arena. In spite of the actions of repressive states, this is a moment of promising and productive advances in the mobilization of well-informed and courageous civil society groups, ready in any forum to assert and defend the rights of all. I hope that the political leaders who will grace these chambers in the coming days will show by their words and actions that the time of intolerance and moral judgmentalism in AIDS policy -- in all policy -- is over. Millions of people persecuted for their sex, gender, gender identity, sexual orientation, or status as sex workers are reclaiming their rights and their lives. The high-level meeting is an occasion for government and civil society leaders to be loudly and clearly on the record as supporters of this movement toward justice for all.





  
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This article was provided by amfAR, The Foundation for AIDS Research. Visit amfAR's website to find out more about their activities and publications.
 

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