UNAIDS - 9 October 2009

Mr Sidibe congratulated India's lesbian, gay, bisexual and transgendered communities for their solidarity leading up to the court judgment, declaring it "a victory for tolerance, fairness and equality".

Mr Sidibe also called on the activist communities to mobilize in the response to HIV and act as a voice for the voiceless for those who are most vulnerable to HIV. "If such laws are removed, India's HIV prevention programme could serve as a model in the future for other countries around the world," Mr Sidibe said.

In his address to the award reception, Mr Sidibe also strongly advocated for the removal of punitive laws specifically against sex work and drug use which are detrimental to the AIDS response. He said criminalization risks pushing at communities already at higher risk "into the dark shadows and undermines our efforts to ensure universal access to HIV prevention, care and support services".

Section 377

The High Court ruling came after a long legal battle in which India's lesbian, gay, bisexual and transgendered communities made a united effort in order to make their voices heard.

In its court affidavit against Section 377, India's National AIDS Control Organization had contended that the law hampered HIV prevention efforts. It cited that only 6% of all men who have sex with men have access to HIV prevention, treatment, care and support services, as most of them are reluctant to reveal their same sex behaviour due to fear of extortion, harassment, and violence at the hands of law enforcement authorities. It was noted that Section 377 encouraged people to remain hidden, making it difficult for them to access essential HIV, health and social services.

According to Justices Shah and Muralidhar, the Constitution of India recognizes, protects and celebrates diversity, and they declared Section 377 as a violation of the rights to privacy, liberty, health and equality enshrined in this Constitution.

Though the decision was largely seen as a victory for men who have sex with men and transgendered people, it has been hailed as a victory for all - regardless of sexual orientation and gender identity. The judgment is noteworthy and progressive in terms of its rejection of a hetero-normative and homogenous conception of sexuality. The judgment held that morality cannot be held as a ground for restriction of fundamental human rights.

There are around 80 countries worldwide with laws which criminalise same sex behaviour. Through collaborating with civil society as well as other stakeholders UNAIDS works towards removing punitive laws, polices and practices that hamper the AIDS response. This in one of the nine priority areas in the UNAIDS outcome framework 2006-2011.

Representatives from the sexual minority communities in New Delhi also explored with Mr Sidibe ways of successfully engaging with government and health authorities in the wake of the court ruling.

Resources:

Related information:

Human Rights and HIV - http://www.unaids.org/en/PolicyAndPractice/HumanRights/default.as p

Delhi High Court Judgment - http://data.unaids.org/pub/ExternalDocument/2009/20090702_section _377_en.pdf

Percent of active MSM who are married or report recent sex with women, various countries - http://data.unaids.org/Topics/Epidemiology/Slides13/aidsinasia04s lide034_en.ppt

Press centre:

AIDS responses failing men who have sex with men and transgender populations - http://data.unaids.org/pub/PressRelease/2009/090515_msm_transgend er_en.pdf

UNAIDS welcomes historic decision by Delhi High Court to annul the law that criminalizes adult homosexual relations - http://www.unaids.org/en/KnowledgeCentre/Resources/PressCentre/Pr essReleases/2009/20090702_PR_Section377.asp

Feature stories:

Landmark Delhi High Court decision recognizes inappropriate criminalization as a barrier to health, human rights and dignity (07 July 2009) - http://www.unaids.org/en/KnowledgeCentre/Resources/FeatureStories /archive/2009/20090707_MSM_Law.asp

MSM and the global HIV epidemic (31 July 2008) - http://www.aegis.org/news/unaids/2008/un080720.html

Publications:

UNAIDS Outcome Framework: Universal Access for Men who have Sex with Men (pdf, 323 Kb.) - http://data.unaids.org/pub/Report/2009/jc1720_action_framework_ms m_en.pdf

State of Homophobia (pdf, 250 Kb.) - http://data.unaids.org/pub/Manual/2007/070517_statehomophobia_ilg a_en.pdf

Joint action for results: UNAIDS outcome framework, 2009 - 2011 (pdf, 388 Kb) - http://data.unaids.org/pub/Report/2009/jc1713_joint_action_en.pdf
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