HIV Policy for Key Populations: Why does it matter? National Policy Priorities Urban Policy Priorities Jeffrey O’Malley Director, HIV/AIDS Practice, UNDP Secretariat, Global Commission on HIV & the Law

Modes of transmission in sub-Saharan African countries, Distribution of new infections by sources of risk

Median percentage of population reached with HIV prevention services within specified legal environment Sex workers (N=42) Injecting drug users (N=17) Men having sex with men (N=28) Median percentage of population reached with HIV prevention services (UNGASS indicator 9) Countries reporting having non- discrimination laws/regulations with protection for this population Countries reporting NOT having non- discrimination laws/regulations with protection for this population Source: UNGASS Country Progress Reports 2008

Key Populations FINDINGS 1.Essential for key populations to have access to HIV prevention, treatment, health services, commodities and information 2.Yet, there is underinvestment by donors and governments in inexpensive commodities that can stop infection or programmes to promote and distribute them 3.Some governments criminalise possession of commodities, and behaviours and practices 4.Governments also stand by as the police administer society’s disapprobation — beatings, extortion, torture, arbitrary arrest, and mistreatment rather than protection in cases of violence RECOMMENDATIONS Calls countries to: Prohibit police violence against key populations Support programmes that reduce stigma and discrimination against key populations and protect their rights 5

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People who use Drugs FINDINGS 1.Punitive laws against people who use drugs fuel the spread of HIV and keep users from accessing services for HIV and health care 2.Much evidence has shown that jurisdictions which have legalised comprehensive harm reduction services have significantly reduced HIV infections among people who use drugs, as against where such services are restricted or blocked by law 3.Although UN conventions, which aim to curb drug trafficking, allow for treatment, rehabilitation and social reintegration, the approach to people who use drugs has been predominantly repressive 4.Some laws mandate compulsory treatment for drug dependence, testing for suspected drug use and registration of drug users. But experiences show that repressive drug control laws and policies fail to achieve their purported goals, whether fighting crime or reducing drug use or drug-related harm. 5.“Wars on drugs” are wars on people who use drugs 7

People who use Drugs RECOMMENDATIONS Calls for countries to: Reform their approach towards drug use from a purely punitive one to one that promotes health and treatment of users Immediately close compulsory drug detention centres, replaced by evidence-based voluntary services for treating drug dependence Abolish national registries and mandatory testing and forced treatment of people who use drugs Repeal punitive conditions such as the US government’s federal ban on funding of NSEPs that inhibit access to HIV services for people who use drugs Decriminalise the possession of drugs for personal use, in recognition that the net impact of such sanctions is often harmful to society Review and reform, in partnership with the UN, relevant portions of the international narcotics conventions in line with aforementioned approaches IN PRISONS – ensure that necessary evidence-based, voluntary health care is available, including HIV prevention and care services (comprehensive harm reduction services, treatment for drug dependence and ART), regardless of laws criminalising drug use, and satisfying international standards of quality of care in detention settings. 8

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Men who have sex with men FINDINGS 1.International law protects the universal right to privacy, which guards people’s sexual practices from interference by the state. 2.Criminalisation of same-sex relations is widespread. But even in jurisdictions where same-sex relations are not criminalised, the state extends no legal protection from discrimination on the grounds of sexual orientation. 3.Punitive laws against homosexual behaviour are impeding and undermining HIV prevention efforts for MSM 4.Decriminalisation is necessary, but insufficient – efforts are also required to reduce associated stigma, violence, and improve access to health and HIV services, commodities and information 11

Men who have sex with men RECOMMENDATIONS Calls countries to: Reform their approach towards sexual diversity - from punishing consenting adults involved in same-sex activity, offer access to effective HIV and health services and commodities Repeal all laws that criminalise consensual sex between adults of the same sex and/or laws that punish homosexual identity Respect existing civil and religious laws and guarantees relating to privacy Remove legal, regulatory and administrative barriers to the formation of community organisations by or for LGBT people Amend anti-discrimination laws expressly to prohibit discrimination based on sexual orientation Promote effective measures to prevent violence against men who have sex with men IN PRISONS – ensure that necessary evidence-based, voluntary health care is available, including HIV prevention and care services (condoms, ART), regardless of laws criminalising same-sex acts, and satisfying international standards of quality of care in detention settings. 12

Sex Workers FINDINGS 1.Criminalisation in one form or other is the dominant legislative approach to sex work. 2.Laws against consensual adult sex work and associated activities have undermined HIV prevention, allowed excessive police harassment and violence and weakened sex workers ability to negotiate safer sex with clients 3.Sex workers who have collectivised have been able to protect their health, bodily integrity and control HIV within their communities and beyond 4.Criminal law should be used to curb trafficking, but distinguish with consensual adult sex work 5.Decriminalisation is the first step toward better working conditions for sex workers 14

Sex Workers RECOMMENDATIONS Calls for countries to: Repeal laws that prohibit consenting adults to buy or sell sex, & laws that otherwise prohibit commercial sex, Complementary legal measures must be taken to ensure safe working conditions to sex workers. Take all measures to stop police harassment and violence against sex workers. Prohibit the mandatory HIV and STI testing of sex workers. Ensure that the enforcement of anti-human-trafficking laws is carefully targeted against those who use force to procure people into commercial sex, but not against those involved in consensual adult sex work Enforce laws against all forms of child sexual abuse and sexual exploitation, clearly differentiating such crimes from consensual adult sex work. Ensure that existing civil and administrative offences for “loitering” or “public nuisance/ morality” are not used to penalise sex workers Shut down all compulsory detention or “rehabilitation” centres for people involved in sex work Repeal punitive conditions in official development assistance (e.g. PEPFAR anti- prostitution pledge) 15

Transgender people FINDINGS 1.In many countries, by law or by practice, transgender persons are denied acknowledgment as legal persons. A basic part of their identity - their gender - is unrecognised. 2.Many jurisdictions also prohibit the basic daily expression of self, where cross-dressing is an offence. 3.Violence (by the police and citizenry) against transgender people is often condoned by the State. 4.Such marginalisation contributes to increased marginalisation, exposure to HIV and disproportionately rare use of HIV prevention, treatment, care and support services in support of transgender people. 5.There has been some progress – legislation that recognises transgender persons and their rights - legal sex change, registration of identification documents in accordance with lived gender, recognition of alternative/ third genders and prohibition of discrimination against people of non-conforming gender. 16

Transgender people RECOMMENDATIONS Calls countries to: Offer transgender people access to effective HIV and health services and commodities Repeal all laws that criminalise transgender identity or associated behaviours, including cross-dressing Respect existing civil and religious laws and guarantees related to the right to privacy. Remove legal, regulatory or administrative barriers to the formation of community organisations by or for transgender people. Explicitly prohibit discrimination based on gender identity Allow for affirmation of transgender identity in identification documents, without the need for prior medical procedures such as sterilisation, sex reassignment surgery or hormonal therapy. 17

The special role of cities

UNDP African urban policy scan  Urban issues not understood and addressed sufficiently  HIV and AIDS not a priority of municipalities and city officials  Policy makers not providing guidance or strategies and donors not providing focused resources.  Major donors and implementing agencies follow national strategy, but local level leaders and AIDS Councils often not consulted.  A lot of monitoring but not enough co-ordinating.  Coordination capacity limitations in municipalities – human, technical, financial  Challenges in addressing the needs of key populations in improving access to justice, protection from sexual and gender- based violence and access to services.  Civil society vs. government capacity – how can we develop implementation and co-ordination capacity of different sectors? 19

Way forward – what do we expect from cities? All cities could take action to: Integrate HIV in local development plans - own the response, identify targets and establish accountability mechanisms. Know the epidemic and the response – produce evidence on size, prevalence, behaviour and mapping of relevant population groups and high transmission areas to mobilise and target prevention resources Develop evidence on specific urban dynamics - major drivers of epidemic such as MCP, sex work and transactional sex, sero-discordancy, mobility, migration routes, urban poverty, informal settlement, etc Advocate for enhanced urban responses (including for rural populations) – an important and cost effective way to reach rural residents. Urban responses need investment to cater for migrants and satellite communities. Provide leadership on rights based approaches -reduce harassment and increase protection from law enforcement agencies. Support national resource mobilization efforts – generate “city” and extra resources e.g. through partnership between public – private – community. Ensure accountability– monitor progress, evaluate, and provide political leadership. 20

Thank You! Report of the Global Commission on HIV and the Law “Risks, Rights & Health” available at: Twitter: twitter.com/HIVLawCom Facebook: facebook.com/HIVLawCommission