Decriminalization and Destigmatization in Hostile Environments

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Decriminalization and Destigmatization in Hostile
Environments

• Joel Gustave Nana
• Executive Officer
• African Men for Sexual Health and Rights (AMSHeR)

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Outline

• Introduction
• Four Cases to Start
• Overview of Legal Status of Same-sex practices
  across the world
• Impact of Stigmatization and Criminalization on
  Access to HIV Services
• Challenges for Decriminalisation and
  Destigmatization
• Opportunities for Decriminalisation and
  Destigmatisation
• Conclusion and Recommendations

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1. Introduction a. Four Cases
to Start
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In December 2008, 66 Countries supported a
declaration on sexual orientation, gende identity
and human rights at the UNGA. Meanwhile 65 other
countries, lead by Syria, developed a counter
statement
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In a breakthrough judgment on July 2, 2009, the
Delhi High Court ruled that sex between
consenting adults is not a criminal act.
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Sizakele Sigasa and Salome Masooa, two South
African lesbians and HIV activists, were brutally
raped and killed in a Johannesburg Township on
07/07/07
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Two men were killed on March 26, 2009 in Sadr
City area of Baghdad by the police after they had
been disowned by their families for gay
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b. Overview of the Legal of MSM, WSW and TG
around the world

• 80 countries in the world currently sustain some
  form of laws that criminalize same-sex practices
• 5 Countries and parts of Nigeria and Somalia
  criminalize same-sex practices with death penalty
• No international Human Rights Treaty explicitly
  mentions sexual orientation and gender identity
  as grounds for protection from human rights
  violations (Not even the ICECSR or ICCPR despite
  the recurrence of the issue before their
  monitoring body)
• The International Covenant on Economic Cultural
  and Social Rights (ICECSR) has, till date, not
  been ratified by 69 countries including the US
  who only signed
• The International Covenant on Civil and Political
  Rights has been ratified by 165 countries and
  signed by 72.

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2. Impact of Stigma and Criminalization on
Universal Access to HIV Services by MSM, WSW and
TG persons

• Absence of PTC programmes and services tailored
  to meet the needs of MSM, WSW and TG persons
• Fear to provide, access (or be seen accessing)
  such services where they exist
• Dearth of evidence and investigators (willing to
  investigate) on MSM, WSW, TG and HIV related
  issues
• Greater fluidity between the HIV epidemics in
  prisons and the epidemics (in MSM, WSW and TG
  communities) out of prisons due to constant
  arrests and detentions
• Greater risk behaviour Due to fear, people
  engage more and more in sex in places where the
  likelihood of protection is very weak and the
  likelihood of contamination is high,
• Other limitations of human rights and legal
  barriers can also impede on the access to PTC
  services by MSM, WSW and TG persons. Such
  limitation include the limitation on the rights
  to assemble freely (Senegal), the limitation on
  the freedom of speech and on the freedom to seek,
  generate and disseminate information (Uganda,
  Nigeria)

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3. Challenges to Decriminalisation and
Destigmatisation of SOGI

• Cultural Relativism International human rights
  treaties are sometimes read and applied through
  some peoples understanding of culture
  (un-Africanness of homosexuality, sexism,
  patriarchy)
• Religion Often interpreted to promote hatred of
  MSM, WSW and TG persons
• Political Will (1) Homosexuality has become a
  good distraction. It keeps people from discussing
  the real issues affecting their countries. (2)
  There is no strong political will to change the
  state of things at the global level despite the
  movement at the UN to decriminalize consenting
  same-sex behaviour
• Ignorance Most people, including policymakers,
  religious leaders, academics and journalists who
  often make homophobic statements and take drastic
  measures against MSM, WSW and TG persons often do
  so by ignorance
• The Closet In most countries there is no
  publicly known out gay, lesbian or transgender
  person. In these countries, most views on LGBT
  people are based on stereotype which could have
  been debunked if some people have come out openly.

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4. Opportunities for Decriminalization and
Destigmatization
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a. Opportunities for Destigmatization

• Growing movement of visible and assertive LGBTI
  persons, using various avenues to sensitize,
  educate and inform populations on sexual
  orientation and gender identity related issues
  worldwide.
• Various Forums are considerably opening up to
  MSM, WSW and TG issues (for example ICASA, ICAAP,
  IAS, UN for MSM and some level TG issues and HIV,
  UNHRS)
• growing interest on both the intersection and
  interactions between gender, HIV, human rights
  and Sexual orientation and Gender identity
  (social science researchers)
• Greater evidence on MSM, WSW and TG persons and
  HIV and/or human rights
• Increasing global attention to MSM, TG (and to a
  lesser extend WSW) in the context of the fight
  against HIV (UNDP, GFATM)
• Increasing number of countries considering
  MSM/WSW/TG in their national strategic plan for
  the fight against HIV and/or on their CCM
• Participation of LGBT groups in civil society
  forums in their respective countries

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b. Opportunities for Decriminalization

• Existence of local remedies to challenge the
  constitutionality of homosexuality
• Availability of various international, regional
  and sub-regional human rights mechanisms where
  redress for human rights violations could be
  sought and decriminalization strategies could be
  implemented (ACHPR, UPR, CCPR CECSR MB, special
  procedures, urgent appeals)
• Well documented facts on the impact of such laws
  on the life of MSM, WSW and TG persons, as well
  as on public health (Amnesty, HRW, IGLHRC and
  local groups)
• Readiness of local groups and greater
  sophistication and professionalism in their ways
  of working and in their choice of staff
• Greater involvement of MSM, WSW and TG in the
  civil society of their respective countries.

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5. Case Study South Africa

• Fierce activism
• Right time but was it right?
• Decrminalisation v Destigmatisation
• Lessons learned
• Moving Forward

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Conclusion and Recommendations

• More litteracy work
• Documentation
• Targeted advocacy