Françoise Barré-Sinoussi, co-chair of the recently concluded 20th International AIDS Conference, believes that “[a]nti-gay laws in Russia, Uganda, Nigeria and other countries around the world will have ‘consequences’ for the continued spread of HIV around the world, potentially dashing hopes of eradicating the virus in the early 21st century.”
Apropos to the theme of the conference, activists, researchers, policymakers, donors, and celebrities challenged the rest of the world to “pick up the pace” to combat discrimination, stigma, and sustain momentum – political and financial – to fight HIV. While scientific, technical, infrastructural, and financial capacity were discussed and deliberated, little attention was paid to issue of legal capacity.
For the most part, lawyers are viewed as extraneous to conversations on health; they are relegated to some shadow world of paper, words, and bureaucracy that at turns frustrates and mystifies all others to no end. Yet, in this instance – where legalized discrimination is not just an active barrier, but also perhaps the greatest barrier to positive health outcomes – more science, more activism, and more money are not enough. A cure for AIDS could be found tomorrow, but the laws and policies that discriminate against gays, criminalize sex work, and prohibit harm reduction programs will ensure that the most vulnerable populations, concurrently the most at-risk populations, will never realize the end of AIDS.
The response to HIV is multi-sectorial and the law has always been an integral component of that response. When scientists developed first life-saving therapies, lawyers fought in courtrooms across the world to ensure access. Despite this, in the ensuing years, the role of law has always been an afterthought. Public health chased after better science and greater resources, and their detractors focused on more enduring, intractable, and institutionalized alternatives. And now, here we are.
Homosexuality is a capital crime in five countries and punishable with imprisonment in 70 more. Some of the most punitive anti-gay legislation is in sub-Saharan Africa, which is home to 67% of all HIV/AIDS infections. Uganda and Nigeria alone enacted new anti-gay laws earlier this year. But legalized discrimination is not isolated to Africa. The Supreme Court of India recently re-criminalized adult consensual same-sex sexual conduct and Russia enacted an anti-LGBT propaganda law, outlawing the distribution of “propaganda” which purports to support “non-traditional sexual relationships.” Discriminatory laws and practices affecting transgender persons are similarly widespread. Additionally, laws that criminalize drug use and sex work (both major risk factors for HIV) are prevalent throughout the world.
The public health consequences of these laws and policies are devastating. While HIV incidence has been decreasing since 2001 in the general population, at-risk populations have been shouldering an increasingly disproportionate share of the incidence and prevalence of the disease. Men who have sex with men (MSM) are 19 times more likely to have HIV than the general population, female sex workers are 14 times more likely to have HIV than other women, transgender women are almost 50 times more likely to have HIV than other adults, and injecting drug users are up to 50 times more at risk of HIV infection than the general population. These populations, most at risk of HIV infection, are excluded from national HIV plans and are least likely to have access to HIV prevention, testing, treatment service.
Strengthening a dialogue on building legal capacity is essential to combating legalized discrimination. This requires educating a new generation of lawyers and legal activists throughout the world who understand the nuances of both health and the law. Existing activists and non-lawyers must also be engaged in this discussion. In terms of human rights, it demands lawyers that don’t simply view “rights” as a series of abstract principles, but as a robust area of legal discourse that can define government obligations on health, influence policy debates, and be effectively deployed in domestic and international courts. It also requires lawyers that can draw lessons learned from different fields of health with their own war stories to share (reproductive rights, tobacco control, and health reform), and from other legal disciplines altogether, such as administrative, constitutional, and trade law.
Mobilizing effective legal challenges to discriminatory laws requires more than outrage. For example, in the United States, socially and politically volatile legal questions have rarely been decided on the basis of science or morality, but instead turned on the grounds of the right to privacy, freedom of assembly, freedom of speech, and most recently, the government’s power to tax. Countries with a constitutional right to health will likely have an even greater range of legal arguments that can be made. But it necessitates individuals and institutions that have been trained to make them.
Law cannot be undone solely by activism, political will, money, or even violence. Bad law is ultimately upended by better law.
So, how many lawyers does it take?
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.