Decriminalization and Destigmatization in Hostile Environments Joel Gustave Nana Executive Officer African Men for Sexual Health and Rights (AMSHeR)

Outline 1.Introduction o Four Cases to Start o Overview of Legal Status of Same-sex practices across the world 2.Impact of Stigmatization and Criminalization on Access to HIV Services 3.Challenges for Decriminalisation and Destigmatization 4.Opportunities for Decriminalisation and Destigmatisation 5.Conclusion and Recommendations

1. Introduction a. Four Cases to Start

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

In a breakthrough judgment on July 2, 2009, the Delhi High Court ruled that sex between consenting adults is not a criminal act.

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

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

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.

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)

3. Challenges to Decriminalisation and Destigmatisation of SOGI Cultural Relativism: International human rights treaties are sometimes read and applied through some people’s 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.

4. Opportunities for Decriminalization and Destigmatization

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

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.

5. Case Study: South Africa Fierce activism Right time but was it right? Decrminalisation v Destigmatisation Lessons learned Moving Forward

Conclusion and Recommendations More litteracy work Documentation Targeted advocacy