On 14 November 2023, the HIV Policy Lab of the Center for Global Health Policy and Politics, O’Neill Institute for National and Global Health Law (Georgetown University) in collaboration with the United Nations Development Programme (UNDP) and GNP+issued a report on the “Progress and the Peril: HIV and the Global De/Criminalization of Same-sex sex”.
Dr. Matthew Kavanagh, Director, Center for Global Health Policy and Politics, O’Neill Institute for National and Global Health Law (Georgetown University) presented the report at the symposium organised by the Young Queer Alliance held on 07 December 2023 to commemorate the Human Rights Day and the 75th Anniversary of the Universal Declaration of Human Rights.
While providing caution amidst a dangerous countertrend toward harsher criminalization and anti-LGBTI+ legislation in some countries, the report includes case studies on decriminalization in Angola, Mauritius, Singapore, Botswana, India, Cook Islands, Gabon and Antigua and Barbuda, demonstrating that progress is possible across a range of contexts.
The data and case studies from the report suggest important lessons for the AIDS response. They underscore the impact of investing in policy-change and law-reform efforts of decriminalisation. These efforts will be critical to deliver on HIV-related SDGs, the 10-10-10 targets of the 2021 Political Declaration on HIV and AIDS and the commitment to reach those furthest behind.
Criminalisation of Same-sex Sex
The HIV Policy Lab (HIVPL) emphasizes that law is a key factor in shaping how states respond to people facing a pandemic – the law impacts who faces the highest risk of infection and death. A decade ago, the Global Commission on HIV and the Law joined AIDS movement calls for countries to revisit their approach to same-sex sexuality as criminalisation undermines the AIDS response.
In its report, first, the HIVPL measured the de jure content of the law, as written, and whether national law refrains from criminalising consensual same-sex sexual acts; and second, it measured whether a country avoided prosecuting people for same-sex sexual activity.
Accordingly, the HIVPL found that 13 countries – 7% of the world – removed criminalising laws since 2017. Currently, 63% (24.6 million) of people living with HIV worldwide now live in countries where same-sex sex is legal. 24 criminalising countries in 2023 showed a de facto policy of non-enforcement, with no reported recent prosecutions. It is noteworthy that all the 13 countries which have fully decriminalised same-sex sex adopted a non-enforcement policy before the law reform, therefore, showing an important path to change.
HIV, Inequality, and Criminalisation
The Report further establishes that the HIV prevalence among gay men and other men who have sex with men, as compared to all adults, is 11 times higher whereas for transgender people, the figure is 14 times higher.
When comparing criminalising and non-criminalising countries in selected African countries, HIV prevalence between Gay and Bisexual men and other Men who have Sex with Men (GBMSM) is 7.2 times higher as compared to all adults in those countries whereas for criminalising countries, HIV prevalence among GBMSM is 24.8 times higher.
Likewise, knowledge of one’s HIV status in non-criminalising countries is 11.3% higher than in criminalising countries and viral suppression in non-criminalising countries is 8.1% higher than in criminalising countries.
While recognising the possible political and legal determinants in specific countries, these statistics provide a summary of evidence base and normative imperative toward decriminalisation from a public health and human rights perspective.
Inclusion beyond criminalisation
Evidence further establishes that the negative public health impact of criminalisation is magnified where law and enforcement policy are combined, having for impact to worsen stigma, discrimination, and fear, driving people away from health services.
Although a number of countries such as Uganda, Iraq and Ghana, among others, are fervently increasing criminal penalties using “family” or “children” as entry points, another important policy endeavour among countries has been to use the law to protect Lesbian, Gay, Bisexual, Trans, Queer, Intersex and Asexual (LGBTQIA+) people against discrimination and rights violations.
In 78 of the 129 countries that do not criminalise consensual same-sex sex has anti-discrimination protections on the basis of sexual orientation, 50 countries include anti-discriminatory protection on the basis of gender identity and 49 countries have non-discrimination protections on the basis of both gender identity and sexual orientation.
LGBTQIA+ rights as a Public Health Response
Protection of human rights is deeply rooted in the global AIDS response over the decades now to effectively stopping HIV transmission and AIDS mortality.
Clear policies and investments in reforming laws for decriminalisation and inclusion delivers results. Delivering on the Sustainable Development Goals and the promise to leave no one behind will require move investment in government-to-government learning with advocacy from civil society.
Although some 79 countries have decriminalised same-sex sex, only bout half of them have clear non-discrimination laws and policies as well as independent human rights institutions. Increased investments in community-based and community-led services are a priority to advance public health efforts against AIDS.
Young Queer Alliance
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