The Torturer’s Fist Or The Healer’s Hand? New Report Assesses HIV And The Law

On Monday the Global Commission on HIV and the Law released its first report: Risks, Rights, and Health. This landmark report details the role human rights violations and discriminatory laws play in driving the HIV epidemic in countries around the world, particularly for marginalized populations such as gay and transgender people, migrants, and sex workers.

The report acknowledges that the practice of writing, passing, and enforcing laws can seem abstract and distant. But as many people living with HIV know all too well, the law is neither abstract nor distant; it directly shapes the circumstances in which people live their daily lives, and it too often hurts more than it helps.

The authors of the report, who include U.S. Representative Barbara Lee, the most pro-LGBT member of Congress, describe being frequently overwhelmed by how “archaic, insensitive laws are violating human rights, challenging rational public health responses, and eroding social fabric.” The commission heard from more than 1,000 people in over 140 countries, including many of the 78 countries that criminalize homosexuality and many countries with laws that prohibit and punish gender nonconformity.

Laws that dehumanize and criminalize gay and transgender people, men who have sex with men, sex workers, and people living with HIV cannot stop AIDS. The report emphasizes that the most effective laws for combatting the spread of HIV are not based on repression and discrimination. Rather, they are laws that explicitly protect the human rights of people living with HIV and groups of people at high risk of contracting the virus.

Among other evidence of the link between discriminatory laws and the continuing spread of HIV, the report cites two opposing cases involving gay rights: Lawrence v. Texas, the U.S. Supreme Court ruling that overturned America’s remaining sodomy laws, and the proposed Ugandan law that punishes same-sex sexual contact with death. According to the report, countries must recognize that decriminalizing homosexuality is an essential step in fighting the HIV epidemic.

Other major recommendations include:

• Amend nondiscrimination laws to include protections on the basis of sexual orientation and gender identity.
• Remove legal barriers to the formation of community groups by or for gay, lesbian, bisexual, and transgender people and men who have sex with men.
• Ensure that transgender people can access identity documents that affirm their gender without requiring medical procedures such as sterilization or sex reassignment surgery.
• Ensure that all people have access to comprehensive, affordable, and affirming health care services, including HIV prevention, testing, and treatment services.

The report also directly addresses the role that religion and faith communities must play in helping to end discrimination against people living with HIV, gay and transgender people, and others who are driven to the margins of society by stigma and prejudice:

Religious institutions must be inspired by their best spirits and their ideals of love, compassion, and service to others — common to all of the world’s spiritual traditions. If they do not, they will stand on the side of what can only be called evil: condemning others to illness and death because of their sexualities or identities, their occupations, or even their frailties.

In the fight against HIV and the struggle to secure the right to health and other human rights for all people, religion may yet be able to change some hearts and minds. And in Martin Luther King, Jr.’s famous phrase regarding those whose hearts will not be changed, “The law may not change the heart, but it can restrain the heartless.” By cutting through taboos and unflinchingly describing the human consequences of legal marginalization, this report provides a powerful tool for creating laws that both protect public health and promote human rights.