Legal environments, human rights and HIV responses among men who have sex with men and transgender people in Asia and the Pacific: an agenda for action

Legal environments, human rights and HIV responses among men who have sex with men and transgender people in Asia and the Pacific: an agenda for action

Human rights among men who have sex with men and transgender people in Asia and the Pacific

This study, commissioned by the United Nations Development Programme (UNDP) and the Asia Pacific Coalition on Male Sexual Health (APCOM), posits that some 19 of 48 countries in the Asia Pacific region continue to criminalise male-to-male sex. In light of the above, the authors argue, HIV prevalence has reached alarming levels among men who have sex with men and transgender populations in many countries of the region.

Specifically, key findings of the study are:

  • a range of laws are selectively enforced against men who have sex with men and transgender people in many countries of the region.
  • even in the absence of criminalisation, the arbitrary and inappropriate enforcement of other legal provisions often violate the rights of men who have sex with men and transgender persons, thereby obstructing advocacy, outreach, and delivery of HIV and health services.
  • legislation and law enforcement often lags behind national HIV policies, with the result that the coverage and effectiveness of programmes for men who have sex with men and transgender persons are undermined.
  • punitive laws exist across the Asia Pacific Region along with selective, discriminatory enforcement practices continues to reduce the effectiveness of national HIV responses.
  • many national HIV policies now accord a priority to men who have sex with men, even though the legal environment remains repressive.
  • also, the study highlights some recent examples of protective laws, judicial and policy actions to improve the legal environment for men who have sex with men and transgender people, including important court judgments in Nepal, India, Pakistan, Philippines, and Fiji among others.
  • drawing from the above findings, the authors conclude that in the context of HIV and human rights, there is urgent need to continually and vigorously defend and promote rights based HIV, health and development policies and programme responses.
  • developing strategic partnerships and alliances between affected communities, the legal profession, human rights bodies, parliamentarians, policy makers and the media is critical.
  • men who have sex with men and transgender people are a key population requiring urgent attention in national HIV programmes.
  • if countries fail to address the legal and human rights context of HIV, this already critical situation is likely to become worse.
  • comprehensive and rights-based HIV responses among men who have sex with men and transgender people can occur only when a conducive and enabling legal environment is created.
  • finally, repressive legal environments institutionalise discrimination, limit funding and in effect obstruct the participation of men who have sex with men and transgender people in protecting themselves and their families, friends and communities from HIV.
Recommendations are aimed at governments,  key regional institutions, as well as at donors and multilateral organisations, and relate to improvements to the legal environment for HIV responses, and to health sector HIV services and increased social protection as detailed below:
  • community empowerment and advocacy for improved legal environments and access to justice.
  • support to the judiciary and improvements to law enforcement practices of public security officers and police.
  • decriminalization and law reform to protect the human rights of MSM and transgender people, such legal reforms to be achieved by legislative and judicial action.
  • incorporating actions to address the legal environment and improving access to justice in national policies and plans.
  • research and monitoring of the legal environment and access to justice.
  • improvements to HIV prevention, treatment, care and support services to ensure equitable access, and to ensure services are responsive to the specific needs of MSM and transgender people.
  • public education programmes and use of the public media to raise awareness of the human rights of MSM and transgender people and to combat stigma.
  • employment programmes, income-support and inclusion in social protection schemes.
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