Feature Story

This story was first published on UNDP.org

More than 90 per cent of men having sex with men (MSM) in the Asia-Pacific region do not have access to HIV prevention and care services due to an adverse legal and social environment. If countries fail to address the legal context of the epidemic, this already critical situation is likely to become worse. The implementation of effective, human rights-based national HIV responses requires governments to consider the effect of laws and law enforcement practices on the health of men who have sex with men (MSM) and transgender persons.

A high-level forum on punitive laws, human rights and HIV prevention among MSM in the Asia-Pacific region was convened by the UN Development Programme (UNDP), the Asia Pacific Coalition on Male Sexual Health (APCOM) and the Centre for Comparative and Public Law (CCPL) at the University of Hong Kong. They were reviewing the findings of an upcoming report.

The study, “Laws affecting HIV responses among men who have sex with men and transgender persons in Asia and the Pacific: an agenda for action,” notes 19 of 48 countries in the region criminalize sex between men, with laws often taking on the force of vigilantism leading to abuse and human rights violations. Of the 192 member states of the United Nations, 85 have laws that still criminalize homosexual behaviour and, in some of these countries, conviction can even result in the death penalty.

On the occasion of International Day Against Homophobia, UNAIDS Executive Director Michel Sidibé said, “I salute the dedication and efforts of lesbian, gay, bisexual and transgender communities to demand their rights. Change is happening from exclusion to inclusion, from stigma to dignity but not everywhere ... I call on all governments to create to create social and legal environments that ensure respect for human rights.”

At the gathering in Hong Kong, Mandeep Dhaliwal, UNDP Cluster Leader on Human Rights, Gender and Sexual Diversity, said, “The development and strengthening of an enabling legal and social environment is critical for comprehensive interventions for men who have sex with men and transgender people to have the greatest impact.”

At least 5–10% of all HIV infections worldwide are due to sexual transmission between men, though this figure varies within countries and between regions considerably. In Asia, men who have sex with men are disproportionately affected by HIV. It is estimated that HIV prevalence is as high as 14% in Phnom Penh, Cambodia; 16% in Andrha Pradesh, India; and 28% in Bangkok, Thailand.

Men who have unprotected sex with men may also have unprotected sex with women and thus serve as an epidemiological bridge for the virus to the broader population. For example, a survey of over 800 men in China who have sex with men found that 59% reported having had unprotected sex with women in the previous year.

HIV transmission prevention programmes addressing men who have sex with men are therefore vitally important. However, this population is often seriously neglected because of official denial by governments, the relative invisibility of men who have sex with men, stigmatization, ignorance or lack of adequate information.

In some cases, men who have sex with men are neglected due to reluctance by individuals and organizations to work with them. In many countries, prevention efforts are hindered by laws that criminalize male-male sex, making work with men who have sex with men difficult and hindering their contribution to the response to the epidemic.

Even in the absence of criminalization, other provisions of law often violate the rights of those concerned, thereby obstructing HIV interventions, advocacy and outreach, and service delivery. Moreover, legislation and law enforcement often lag behind national HIV policies, undermining the reach and effectiveness of programmes for men who have sex with men.

This indicates the need for greater coordination between health and justice sectors within government, the report stresses. It highlighted some recent examples of protective laws, judicial and policy actions to improve the legal environment for the men concerned, including important court judgments in Fiji, India, Hong Kong, Nepal, Pakistan, Philippines and the Republic of Korea.

But these are exceptional developments and action is required to improve the legal environment in all countries, it warned.

The final report of the study’s findings will be delivered at the XVIII International AIDS Conference, Vienna, at the session on Criminalizing Homosexual Behaviour: Human Rights Violation and Obstacles to Effective HIV/AIDS Prevention, 20 July 2010.