A series of ground-breaking briefing notes were produced by the Human Dignity Trust in the second half of 2015. These notes aim to illustrate the link between the criminalisation of lesbian, gay, bisexual and transgender (LGBT) people and various aspects of good governance. They also offer information and guidance to governments, the international community, civil society and activists on how to bring about the decriminalisation of same-sex sexual activity across the globe. This research draws on our experience working with activists in criminalising countries and our expertise in international human rights law. They were produced in consultation with leading academics in each of the areas addressed.
The criminalisation of same-sex intimacy between consenting adults intersects with issues around HIV/AIDS in multiple ways. This note addresses two broad concerns.
The first part of this note sets out research from scientific studies and statements from international organisations on the link between the criminalisation of same-sex sexual activity and the prevalence and incidence of HIV. Criminalisation hinders the availability, access and uptake of HIV prevention, testing and treatment services, thus increasing HIV transmission. Multiple international organisations have therefore called for the decriminalisation of same-sex sexual activity on public health grounds alone. This part captures the public health rationale for decriminalisation, which can stand completely separately from human rights arguments for decriminalisation.
The second part of this note addresses the human rights concerns associated with HIV and criminalisation. This part of the note looks at three areas. First, HIV transmission has been used as an excuse to support criminalisation. Notwithstanding that this argument is empirically false, as shown in the first part of this note, this argument is not sound legally. Secondly, at a societal level, criminalisation is an indicator of poor human rights protection in general, which creates an environment that facilitates the transmission of HIV. Thirdly, at an individual level, human rights law is relevant as criminalisation acts as a barrier to LGBT people’s access to healthcare. These human rights violations are health-specific and exist in addition to the more general violations engendered by the criminalisation of same-sex sexual activity.