From the outset of the epidemic, the response to HIV has been affected not only by its association with sex but in particular by the stigmatization, marginalization and criminalization of men who have sex with men (MSM) and other sexual minorities in many countries. Because of a fear of being identified as gay, some people may not seek (or may not seek early enough) testing for HIV, or care, support and treatment for HIV-related illnesses. Furthermore, to the extent that HIV has been seen as primarily as a disease affecting such communities, it has undermined governments’ willingness to mobilize resources and demonstrate political leadership in fighting the disease. As a result, sexual minorities have often been left at increased vulnerability to contracting HIV — consider, for example, the unwillingness in school systems to provide accurate, non-judgemental information about youth sexuality that helps young people, and especially young gay men, protect themselves against HIV. Indeed, in some cases, the emergence of HIV has been used as another excuse to target such minorities for yet more repression under the misguided guise of “protecting public health.” Paradoxically, support for HIV prevention and care efforts have sometimes provided funding and community-organizing opportunities that have strengthened the struggle for the human rights of sexual minorities.
For a wide range of epidemiological, cultural, legal, socio-economic and political reasons, the sexual health and rights of lesbians have often been ignored, including the ways in which they may be at risk of HIV and face barriers to care. Despite the disproportionate impact of HIV on transgender people in countries around the world, their frequent marginalization has been replicated in the response to HIV as well, with relatively little in the way of policy or programming addressing their needs regarding HIV prevention or care. Similarly, the distinct identity and the sexual health needs of bisexual people have been often ignored, including in relation to HIV prevention and care.
International human rights treaties such as the International Covenant on Civil and Political Rights have been found to prohibit the discriminatory criminalization of consensual sex between adults of the same sex, and specious rationalizations that such prohibitions are necessary or effective as an HIV prevention measure have been rejected as unfounded (e.g., Toonen v. Australia, UN Human Rights Committee, 1992). Many domestic courts have reached the same conclusion under national constitutions or human rights laws. Nonetheless, such prohibitions remain in place in the domestic law of several dozen countries, and in some cases punishable with the death penalty. Indeed, abundant evidence demonstrates that criminalizing gay men and other sexual minorities undermines HIV prevention by impeding effective education initiatives and hindering access to appropriate health services. The International Guidelines on HIV/AIDS and Human Rights produced by UNAIDS and the Office of the UN High Commissioner for Human Rights (OHCHR), and repeatedly endorsed by UN Member States, recommend that criminal laws be reviewed and reformed to ensure that they are consistent with international human rights obligations and are not misused in the context of HIV or targeted against vulnerable groups — more particularly, UNAIDS and OHCHR recommend that governments repeal laws criminalizing consensual sex between adults of the same sex.
Beyond removing the threat of criminal prosecution and harsh penalties, international human rights law insists on the equal, universal enjoyment of all fundamental human rights of all people, including protection against discrimination. In 2006, international human rights experts adopted the Yogyakarta Principles, outlining how legally-binding international human rights standards apply in the context of sexual orientation and gender identity. Ensuring effective legal protection against discrimination, and the full and equal enjoyment of all fundamental human rights, is central to overcoming the marginalization and stigma against sexual minorities that continues to impede effective responses to HIV, not just affecting those minorities but undermining the health of all.