Laws affecting HIV responses among MSM and transgender people in Asia Pacific: a consultative study John Godwin Edmund Settle (UNDP), Shivananda Khan (APCOM) XVIII International AIDS Conference Vienna, 20 July 2010

UNDP APCOM study Objectives Describe & assess laws affecting HIV responses for MSM & TG in Asia Pacific Document impact of laws & law enforcement on HIV responses Build consensus on recommendations Method Review of legislation, cases, articles, grey literature Consultations August 2009 – June 2010 Analysis Report  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 (July 2010)  to be presented to Global Commission on HIV and the Law

Consultative approach Consultation process Engaged CBOs, UN, donors, governments Built capacity Identified champions, provided advocacy opportunities Generated consensus & ownership in recommendations Regional : Bali, Fiji, Bangkok, Hong Kong National (UN): Sri Lanka, PNG Community Advisory Committee: Regional networks (APCOM, APN+, APTN, PSDN) & individual activists Technical Panel: lawyers, parliamentarian, former judge, academics, UN

Key findings Punitive laws & law enforcement practices exist in majority of countries Male-to-male sex illegal: 19 countries Cross-dressing illegal: 4 countries Many other countries selectively enforce public order, sex work, obscenity offences Governments increasingly include MSM in national HIV policies 22 countries list MSM as priority - 8 of these also criminalize male-to-male sex Law & justice sector lags behind health sector response Poor coordination, contradictory approaches

Punitive laws Countries that criminalize have English common law or Islamic Sharia traditions 16 ex-British colonies  Bangladesh, Brunei, Malaysia, Maldives, Myanmar, Pakistan, Singapore, Sri Lanka  Cook Ids., Kiribati, Nauru, PNG, Samoa, Solomon Islands, Tonga, Tuvalu 3 countries influenced by common law  Afghanistan, Bhutan, Palau Sharia: death penalty (Afghanistan, NW Pakistan) whipping (Aceh (Indo.), Afghanistan, Brunei, Maldives, Malaysia, NW Pakistan) Sodomy offences rarely enforced... but provide basis for extortion, harassment, violence Civil law countries have no sodomy offences, but other offences apply

Punitive police practices Selective law enforcement Cambodia:Trafficking law China:Public order, sex work laws Fiji: Prostitution offences India:Immoral Traffic Prevention Act, breach of peace Indonesia: Public Disturbance Law, sex work offences Malaysia:Minor Offences Act Philippines:Anti-Vagrancy Law, Anti-Trafficking Law Singapore: Soliciting, Obscenity Sri Lanka: Vagrants Ordinance Police abuses widespread across the region  Extortion, harassment, detention, assault, sexual assault, humiliating searches

Reported direct impacts of punitive laws HIV prevention outreach workers harassed, threatened or detained by police India, Nepal, Sri Lanka, Bangladesh, China Condoms confiscated as evidence of illegality Thailand, Malaysia, Mongolia, Bangladesh, India, Nepal, Cambodia, Philippines, PNG HIV education materials censored Singapore, China, India Police raids on events where HIV education takes place Singapore, China

Reported indirect impacts of punitive laws Adds to stigma, MSM & TG difficult to reach Contributes to low self-esteem, MSM & TG fail to protect themselves & partners Few resources are invested in MSM & TG services or research MSM &TG under-represented in policy and management e.g. CCMs, NACs Lends legitimacy to discriminatory & unethical health care practices Assaults & non-consensual treatment Aversion therapy Lack of protections from discrimination in education & employment Many MSM & TG turn to sex work for income

Legal protections Constitutional protections for sexual minorities (8/48 countries) Judges apply equality, non-discrimination, privacy rights to MSM &/or TG Fiji ( ), Hong Kong, India, Nepal, Pakistan (TG), Philippines, Pitcairn Ids., South Korea (TG) Anti-discrimination laws: sexual orientation (8/48), transgender (2/48) Fiji Hong Kong (public sector) Philippines (police & social work) South Korea Taiwan (education & employment) Timor Leste (employment) Australia & New Zealand (comprehensive, includes TG) Laws enabling TG to change sex or recognised as 3 rd sex (9/48) China, Indonesia, Japan, India, Pakistan, Singapore, Sth Korea, Australia, NZ Tamil Nadu (India) TG Welfare Board – protective model

Recommendations Long haul of law reform Decriminalization of sex between consenting adults & cross dressing Anti-discrimination laws: transgender & sexual orientation Protections from vilification & hate crimes Constitutional equality & privacy rights Legal recognition of gender reassignment & ‘3 rd sex’ status

Recommendations Tailor agenda to local contexts Solutions must be locally driven & owned, within a framework of universal human rights principles Advocacy & leadership Generate social climate for change Networks of CBOs, Judges, Parliamentarians, religious leaders Engage national & regional human rights institutions Align justice sector with national HIV plans Capacity building of police, judges, lawyers, legislators Legal aid & legal literacy for MSM & TG Police partnerships with communities e.g. TN India, PNG

Acknowledgements Advisory Panels Consultation participants UNDP, UNAIDS reviewers Presentation co-authors  Edmund Settle, HIV Policy Specialist, UNDP Asia Pacific Region  Shivananda Khan OBE, APCOM

Acknowledgements Technical Advisory Panel Hon. Dame Carol KiduMinister for Community Development (PNG) Hon. Michael KirbyRetired Judge of the High Court of Australia (Australia) Prof. Dennis AltmanLa Trobe University (Australia) Prof. Douglas Sanders Chulalongkorn University (Thailand) George Hwang Human Rights Lawyer, MARUAH - Singapore Working Group for ASEAN Human Rights Mechanism (Singapore) Prof. Vitit Muntarbhorn Faculty of Law, Chulalongkorn University (Thailand) Dr. Mandeep DhaliwalCluster Leader, Human Rights, Gender & Sexual Diversity, UNDP

Acknowledgements Community Advisory Panel Alexander Su’a Pacific Sexual Diversity Network (Samoa) Andrew TanMalaysian AIDS Council (Malaysia), APN+ member; APCOM Executive Committee Member Ashok Row Kavi Technical Officer, Sexual Minorities, UNAIDS (India) Dede OetomoGAYa Nusantara (Indonesia); APCOM Executive Committee Member Hua BoonyapisomparnTransgender Activist (Thailand); APCOM Board Member Jonas Bagas Convenor, Project Equality (Philippines) Roshan De Silva Independent Activist (Sri Lanka) Stuart Koe Chief Executive Officer, Fridae.com (Singapore) Suben Manisha Dhakal Blue Diamond Society (Nepal) Zhen LiChina MSM Forum & CIDA Civil Society Programme Coordinator (China); APCOM Executive Committee Member Shivananda Khan Chief Executive, Naz Foundation International, Regional Office (India); APCOM Chair

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