The discrimination, criminalization, and marginalization that the MSM and TG communities currently face in most countries of the region greatly undermine the HIV responses that are targeted towards them, said experts addressing the symposium on Overcoming Legal Barriers to Comprehensive Prevention among MSM and TG People in Asia and the Pacific. The symposium that was organized by the United Nations Development Programme (UNDP) and the Asia Pacific Coalition on Male Sexual Health (ACPOM), revolved around the specific legal barriers that prevent the access of vulnerable groups like MSM and TG to HIV prevention, treatment, and care programmes in the region. The distinguished speakers who represented academic, legal, legislative, and NGO fraternities acknowledged the urgent need to create enabling legal environments for MSM and TG communities to access the rights and benefits that the general population in their countries enjoyed.
 
A statement issued by APCOM during the symposium quoted the Asian AIDS Commission report which said that the central reasons for the rise of HIV infection among MSM and TG are the legal, social, and cultural impediments that they face in most countries in the region. APCOM’s chairperson Shivananda Khan highlighted the organization’s vision for the Lesbian Gay and Transgender (LGBT) communities across Asia, as “the need for them to be recognized and given their legitimate rights, so that they can play a full role as citizens of their countries”. Decriminalization: The HIV Angle  One of the most compelling arguments presented at the symposium in favor of decriminalizing private same sex activity between consenting adults is that such reforms will encourage them to come out into the open. The speakers pointed out that if these vulnerable communities remain underground in order to avoid legal implications, the HIV epidemic among them will reach unmanageable proportions. Prevention efforts can be successful only when the legal environment is conducive to the delivery of safe practice messages and tools, and care and support services to an open, visible, and accessible community.

Stressing on this need, panelist Prof. Vitit Muntarbhorn of Chulalongkorn University, Thailand said: “One of the key challenges in overcoming barriers to the prevention of HIV is promoting the formulation of humane laws and policies which enable people to participate in addressing the disease in a cooperative manner, rather than stigmatizing them and driving them underground”.

There is also an urgent need to deliver prevention, treatment, and care programmes to a much broader base of MSMs and TGs which, according to recent data from the Asia Pacific region, reach only about 8% of them. The inaccessibility, clubbed with their high vulnerability and risk of contracting HIV, compounds the problem many folds. Thus, legal reform in terms of decriminalizing same sex practices is a necessary step in addressing the rise of the epidemic among the MSM and TG communities.

Decriminalization: The Human Rights Angle

Apart from the legal barriers that prevent the mainstreaming of MSM and TG communities, the stigma and discrimination caused by social and cultural mores shut them out from the larger society. There are complexities associated with MSM and TG communities coming out and speaking in the open, but by not doing so they are conspiring in reinforcing the society’s discrimination against them.  Symposium panelist Justice Michael Kirby, honorable Judge of the High Court of Australia, also said, “The hostile environment alienates them and puts them out of contact with their societies. Many MSMs hide their sexualities because of the discrimination they will face if they open up. If every MSM stood up, society cannot denigrate against them. But this is not immediately possible, and hence we have to think of more practical strategies, especially in terms of removing criminal sanctions that exist against them.”     

Although progress in legal reforms is being made in some Asia Pacific countries, Justice Kirby observed that an indication of the enormity of the task that still lies ahead is that 20 countries in the region, and 41 out of 53 commonwealth countries still criminalize homosexual behaviour even fifty years after legal reforms were made in Britain, the country where the laws were first formulated.

Hon. Dame Carol Kidu, Minister for Community Development, Papua New Guinea said,” In my country there are many documented cases of police brutality, harassment and blackmail against MSM, although cases are rarely taken to court. Because of the stigma associated with male to male sex in Papua New Guinea, much of this activity takes place furtively. The need to maintain secrecy around male to male sex, due to the threat of criminal sanctions, heightens the vulnerability of these men and their families to HIV infection.” 

Thus, the decriminalization of MSMs and TGs not only mainstreams their existence and prevents their harassment, but it will also allow them to seek and access health and information services which they desperately need in order to protect themselves and their families from HIV.

The positive developments of the recent past

The speakers recounted some of the positive developments that took place in the recent past, the momentum created by which should be sustained and scaled up to cover all the countries in the region. The recent judgment of the Delhi High Court repealing section 377 of the Indian Penal Code, which criminalized private sexual activity between consenting adults of the same sex, was hailed by all. Also cited among the positive developments were the judgments in Nepal and Pakistan which recognized the rights of TGs, and the case of Indonesia which now allows identity documents to be changed so as to reflect a person’s preferred gender.

Symposium speaker Mr. John Godwin, HIV and development consultant, cited other important milestones as the AIDS Commission report in Asia; the review of legal frameworks on human rights relating to sexual diversity in many middle and low income countries; the 2008 UN Declaration on Human Rights, Sexual Orientation & Gender Identity; the UNAIDS Action Framework on Universal Access for MSM and TG communities; the Global Fund’s Strategy on Sexual Orientation and Gender Identities; the Asia Pacific Forum of National Human Rights Institutions’ statement on MSM and TG rights; the Hong Kong Health Department’s response to HIV among MSM; and the Regional Consensus Meeting involving the UN, ASEAN, USAID and APCOM on developing a comprehensive package of services to reduce HIV among MSM and TG communities.

The Future Course of Action

The speakers emphasized the need for coordinated and sustained action at various levels in order to address the problems faced by MSMs and TGs. At one level, Justice Kirby underlined the need for decriminalization by pointing out the historical failure in the attempts to change private pleasure-seeking behaviour and identities of people by enforcing draconian laws. At another level, he stressed on the need for aid and advocacy agencies to get into the minds of people who are most at risk, engage them in discussions about policies and strategies, and to influence them to adopt safer sex behaviour.

Justice Kirby further outlined a three pronged strategy of advocating legislative changes by engaging politicians, community groups and civil society; engaging international courts and tribunals that can work with and lobby for local and national law reforms; and for building programmes that focus on prevention of HIV by targeting vulnerable groups like MSMs and TGs, since the rising costs of treatment and care are squeezing budgets especially in the context of the global financial crisis.

Calling for concrete action, Dame Kidu of Papua New Guinea said: “It is time to change the law. The challenge will be to move away from polarized moralistic arguments to dialogue based on facts, human rights, and access to services for all.” Prof. Muntarbhorn outlined five targets for the future which included universal access to HIV prevention, treatment, and care as part of universal access to human rights; decriminalization of laws on HIV transmission, and other laws which incriminate those who live with HIV (PLHIV) and MSMs; ending of the discrimination and stigmatization of PLHIV and persons professing their gender identity and sexual orientation; sensitization of law enforcers and others who have influence on laws, policies and practices; and fostering enabling environments in the social, cultural, economic, legal and political contexts for PLHIV, MSMs, and TGs.     

Providing a brighter perspective, Anand Grover, prominent Indian lawyer and activist of rights for MSMs & TGs, pointed out that the HIV epidemic has given us an umbrella to talk about issues like those affecting MSMs, TGs, and other vulnerable groups, which all stakeholders have to leverage well in order to win the battle against discrimination and criminalization.     

Chairs:
Jeff O’Malley, Director, HIV/AIDS Practice, UNDP
Shivananda Khan, Chairperson, APCOM

Panelists:
Hon. Michael Kirby, Australia
Anand Grover, Director of the Lawyers Collective HIV/AIDS Unit and UN Special Rapporteur on Health
Hon. Dame Carol Kidu, Member of Parliament and Minister for Community Development, Papua New Guinea 
Prof. Vitit Muntarbhorn , Professor of Law, Chulalongkorn University, Thailand
John Godwin, HIV and Development Consultant

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