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Human rights and HIV

Women and girls in Zam Zam camp, North Darfur, perform traditional Darfuri dances at an event organized by UNAMID Human Rights
KEY POINTS
  • International human rights laws and treaties give every person the right to health and to access HIV and other healthcare services.
  • Human rights violations in the context of HIV include the criminalisation and enactment of punitive laws that target people living with and most affected by HIV. It also includes stigma and discrimination in the workplace and in healthcare services, gender inequality, and the denial of access to HIV services.
  • Human rights-based HIV programmes should be implemented to avoid inequalities or discrimination, and when countries fail to meet the human rights requirements for people living with HIV they should be held legally accountable.

Explore this page to find out more about the relationship between HIV and human rights, human rights violations in the content of HIVa human rights-based response to HIV, human rights and HIV programmesthe human rights funding crisis and the future of human rights and HIV programming.

The relationship between HIV and human rights

It is now widely recognised that HIV and human rights are inextricably linked. Human rights abuses are one of the drivers of the HIV epidemic and increase its impact. At the same time, HIV undermines progress in the realisation of human rights.

Under international human rights laws and treaties, and international obligations such as the Universal Declaration of Human Rights and the 2030 Agenda for Sustainable Development, every person has a right to health and to access HIV, and other healthcare services. People also have a right to equal treatment before the law and a right to dignity.

However, many people continue to face human rights-related barriers to essential and often lifesaving health services. These barriers arise from discriminatory laws and practices connected to people’s health status, gender identity, sexual orientation and conduct1 The people facing these barriers are often the most marginalised and stigmatised in society, and the most vulnerable to HIV. This makes protecting, promoting, respecting and fulfilling people’s human rights essential to ensure they can access the health services they need, enabling an effective response to HIV and AIDS.

The protection of human rights is essential to safeguard human dignity in the context of HIV/AIDS and to ensure an effective, rights-based response. [...] When human rights are protected, fewer people become infected and those living with HIV/AIDS and their families can better cope with HIV/AIDS.

– UNAIDS (1996, 2006) ‘International Guidelines on HIV/AIDS and Human Rights’2

Human rights violations in the context of HIV

Human rights violations in the context of HIV can take many forms. They can worsen the impact of HIV, increase vulnerability to HIV, and more broadly undermine responses to the epidemic.

HIV criminalisation

HIV criminalisation refers to laws that criminalise people living with HIV based on their status. This can be via HIV-specific laws or general criminal laws that prosecute:

  • unintentional HIV transmission
  • potential or perceived exposure to HIV where HIV was not transmitted
  • non-disclosure of known HIV-positive status.3

As of 2018, 68 countries criminalised HIV non-disclosure, exposure or transmission, 20 imposed travel bans or restrictions against people living with HIV, and 59 insisted on mandatory HIV testing for certain groups of people when they apply for marriage, work or residence permits.4

The rationale behind these laws is to deter perceived morally unacceptable behaviour through fear of punishment. However, a wealth of evidence shows how HIV criminalisation is a poor public health strategy and actually undermines the response to HIV.5 6 7 8

For example, HIV criminalisation has been shown to deter people from testing for HIV and, as a result, limit access to treatment and care. Moreover, laws that require people living with HIV to disclose their status have been found to make disclosure more difficult by creating public expectation that they will do.9

Researchers in Toronto, Canada asked HIV negative men who have sex with men attending a health clinic whether the threat of being prosecuted for non-disclosure of HIV affected their attitude toward HIV testing. Around 7% said they were either less or much less likely to take an HIV test for this reason. Researchers modelled the impact a 7% reduction in testing could cause on HIV transmission among men who have sex with men in the city, and found it could lead to an 18.5% increase in new HIV infections.10

In some instances, the criminalisation of HIV has been found to increase risk-taking behaviour, and therefore vulnerability to HIV. One study in the United States of America found that men who have sex with men (MSM) living in states that criminalise HIV were more likely to have sex without a condom. It was suggested that this was due to a people having a false sense of security because they expected partners to disclose their status for fear of prosecution.11

Punitive laws targeting people most affected by HIV

Many countries continue to implement discriminatory laws and policies such as the criminalisation of sex work, drug use and sexual orientation that push groups most affected by HIV (sometimes called ‘key populations’) away from vital HIV, health services and sexual health services and restrict their ability to demand their rights.12 13

Criminalisation of men who have sex with men

In 2018, 67 countries around the world criminalised same-sex conduct, of which eight impose the death penalty.14 Criminalisation of homosexuality and same-sex conduct pushes men who have sex with men underground, making it difficult for them to access, condoms, lubricant, counselling and other HIV services. For example, in parts of the Caribbean where homosexuality is criminalised, 25% of men who have sex with men are estimated to be living with HIV, a significantly higher rate than in countries that do not criminalise same sex conduct.15 Researchers interviewing transgender women from Jamaica found those who had been imprisoned due to their gender identity were substantially less likely to take an HIV test.16

These laws make it extremely difficult for organisations offering sexual health and HIV services to reach men who have sex with men as their work brings them into conflict with laws banning same-sex behaviour.

For instance, evidence suggests Nigeria’s 2014 Same Sex Marriage Prohibition Act led to fewer men who have sex with men being reached with HIV services.17

In Indonesia, a systematic crackdown on rights for men who have sex with men and lesbian, gay, bisexual and transgender (LGBT) people, which began in 2016, has made it far more difficult to reach sexual and gender minorities with health services. This is particularly due to repeated raids on places where outreach workers meet and counsel men who have sex with men such as gay bars and saunas.18

Now instead of the clubs and saunas we try to do basic outreach in public places that aren’t MSM [men who have sex with men]-specific and it’s not working. Even if we can start a private conversation with a guy who is MSM, they won’t take condoms from us because other people could see it. I’m basically going out for a day or night of work, and coming back with all my condoms that I started with.

– Bagus H., an outreach worker in Jakarta19

Even in countries where same-sex activity is not illegal, fear of authorities pushes many men who have sex with men who are not aware of their legal rights away from vital HIV and health services.20 21

Criminalisation of people who inject drugs

At least 100 countries criminalise the possession of drugs for personal use and 33 countries issue the death penalty for drug offences.22 This includes the Philippines, where thousands of people who use drugs have been killed through extrajudicial executions since a government-sanctioned crackdown began in 2016.23

The criminalisation of drugs and the people who use them increases the risk of HIV and other health problems. Fear of arrest or police abuse drives people who inject drugs away from vital HIV and health services, while increasing risky practices.24 25

In some countries, many people who inject drugs do not carry sterile syringes or other injecting equipment even though it is legal to do so because possession of such equipment can mark out an individual as a drug user, and expose them to punishment on other grounds.26 Even at government-sanctioned harm reduction programmes (such as needle and syringe programmes), the presence of police drives people away from these services due to fear of arrest or other punishment27 28

In contrast, countries such as Czechia, the Netherlands, Portugal and Switzerland, that have decriminalised the possession of drugs for personal use have seen more people who use drugs take up health and harm reduction services, and new HIV diagnoses among drug users are low.29

Criminalisation of sex workers

Criminal laws specific to sex work are used to criminalise sex workers and clients as well as the families, partners and friends of sex workers. Alongside sex work-specific laws there are a number of other laws that create the conditions for criminalisation.30

Some elements of sex work are criminalised by 98 countries, and five have laws that enable people to be prosecuted or punished for carrying condoms.31

These laws and practices can prevent sex workers from protecting themselves against HIV and accessing health services. For example, a study among sex workers in China found carrying condoms was the determining factor that police used to decide whether to take a sex worker into custody or not. This practice had a direct impact on condom use. Around 76% of sex workers who had not been interrogated by police in the past month always carried condoms, compared to 48% who had.32

Anti-prostitution laws and policies that criminalise or legally oppress sex workers fuel stigma and discrimination and allow widespread human rights abuses by state authorities. This includes verbal, physical and sexual abuse, mandatory HIV testing, the public ‘naming and shaming’ of sex workers in the media, forced evictions and extortion.33

Many studies have shown that sex workers are subjected to high levels of violence. For example, in Haiti, around 37% of female sex workers have experienced physical violence and 27% have experienced sexual violence. This risk is heightened for sex workers living with HIV who are also subject to HIV laws around non-disclosure, exposure, and transmission laws.34 35 36

It is estimated that decriminalisation and the promotion of safe working environments for sex workers would reduce HIV transmission among female sex workers and their clients by around 40%.37

Stigma and discrimination

People living with HIV and their families can experience stigma and discrimination linked to being HIV positive or being associated with HIV. This is also the case for people most affected by HIV (sometimes known as ‘key populations’) such as women in high prevalence settings, sex workers, men who have sex with men, transgender people and people who use drugs.

Some of this stigma and discrimination is HIV-related; some of it is linked to people’s identities and experiences. This creates a situation in which people from key populations face multiple layers of discrimination, stigma and abuse, which create complex barriers to accessing health services.

In addition to being a violation of human rights in itself, discrimination directed at people living with HIV or those believed to be HIV positive, leads to the violation of other human rights such as access to healthcare, the right to dignity and the right to employment.38 In a circular way, this stigma and discrimination also leads to increased vulnerability to HIV.

For example, researchers found around one in five men who have sex with men (22%) and just under half of transgender women (43%) in Jamaica experience police harassment or violence. Crucially, the study found men who have sex with men and transgender women who are HIV-positive were more likely to experience this than their HIV-negative peers.

Men who have sex with men who were engaged in sex work, were food insecure, and lacked a healthcare provider – factors that suggest social marginalisation – were also more likely to experience harassment or violence at the hands of the police.39

Discrimination by healthcare workers

In many parts of the world, healthcare is not confidential, and those seeking services are discriminated against on the basis of HIV status, non-gender conforming behaviours, sexual orientation or gender identity. These views are fuelled by a variety of factors, including ignorance about HIV transmission routes.

Discrimination by healthcare workers prevents many people from being open and honest when they seek medical help; it also deters people from seeking, using and adhering to HIV prevention and treatment services.40

The impact of HIV-related stigma and discrimination is far reaching. One in five people living with HIV have been denied healthcare, including family planning services or dental work, according to data gathered by countries that monitor healthcare-related discrimination. This includes around one in three HIV-positive women who have experienced at least one form of discrimination relating to their sexual and reproductive health.41

Graphic showing how discriminating against PLWHIV creates barriers to the HIV response

The fear of stigma and discrimination also acts as a powerful barrier to healthcare. For example, people living with HIV who perceive high levels of HIV-related stigma are 2.4 times more likely to begin HIV treatment late, when their health has already been compromised, compared to people who are less aware of stigma.42

It can also affect how long people stay in care. In many countries, HIV-positive people from key populations are less likely to remain in HIV care than those from the general population. For example, a study from Indonesia following HIV-positive men who have sex with men, female sex workers, transgender women and people who inject drugs found around a third (30%) did not start treatment after being diagnosed. Of those that began treatment, around 1 in 4 (24%) did not remain in care.43

Discrimination in the workplace

In some places, people living with HIV can be refused the right to work, while in the workplace they can suffer from discriminatory practices such as termination or refusal of employment due to their HIV status. As a result, in some regions a large proportion of people living with HIV are unemployed. Young people living with HIV have a much higher unemployment rate than adults.44

The fact that many people living with HIV are prevented from earning a living means they may be unable to afford to pay for antiretroviral drugs and other HIV services, or more generally, suffer from financial instability.45

Gender inequality

Gender-based violence, including rape and early marriage, prevent women and girls from being able to adequately protect themselves from HIV. Sometimes gender inequality is entrenched in a country’s laws. Women and girls face unequal access to their rights in many contexts and lack the freedom to make informed choices. For instance, in 29 countries women require the consent of a spouse or partner to access sexual and reproductive health services, and in 112 countries, marital rape is not a crime.46

Graphic showing how discriminating against women and girls creates barriers to the HIV response

HIV criminalisation can also exacerbate gender inequalities. For example, in some countries, a woman may be prosecuted for exposing or transmitting HIV to her baby. This is despite many women being unable to protect themselves from HIV or access HIV treatment that would prevent them from transmitting HIV to their babies.

However, prosecutions under these laws are rare. In the USA, one woman living with HIV whose baby also became HIV-positive has been charged with ‘felony child neglect’. In Canada, a woman in the same situation was charged with ‘failing to provide the necessaries of life’.47

Women living with HIV also face challenges to being able to make autonomous and informed family planning decisions. They do not receive adequate information on family planning and can be subject to involuntary sterilisation based on their HIV status. Women living with HIV and their children can also be refused medical treatment and their HIV status revealed to partners and family members without their consent.48 49

I feel bad for the pregnant women, they are young but already they have had their tubes tied, the doctors insist on tubal ligation sterilization when they do their caesareans, really they tell you “do not have children.” It shouldn’t be like that. Their duty is serving us.

– A woman in Bolivia.50

The vulnerability of women and girls to HIV is heightened where access to education and healthcare is limited. For example, in eastern and southern Africa, seven young women (aged 15–24 years) get newly infected with HIV for every three young men. In western and central Africa, for every three new infections among young men, five young women become HIV-positive.51

Lack of access to HIV and related health services

Under Article 12 of the International Covenant on Economic, Social and Cultural Rights, the human right to health includes access to “facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.”

The latest World Health Organization treatment guidelines make everyone living with HIV eligible for treatment. Some argue that providing access to early treatment is now a core obligation for countries and that restricting access or failing to provide accurate information about it, is a violation of human rights.52 In 2017, just 59% of all people living with HIV were on antiretroviral treatment.53

In many places, those belonging to key populations are unable to access HIV and other health services tailored to their needs. In Eastern and Central Asia, nearly one third of new HIV infections are among people who inject drugs yet opioid substitution therapy (OST) – where legal – is accessed by less than 15% of this population.54

In other countries, such as Russia, OST is illegal. As OST has been proven to reduce HIV infection and provide a range of other health benefits many argue that denying people access to it contravenes the right to health and the right to enjoy the benefits of scientific progress.55 In 2017, one in four people who inject drugs was living with HIV.56

What is a human rights-based response to HIV?

A human rights-based response to HIV is an intervention framework that aims to address the impact that HIV and human rights have on each other and form the basis of human rights-based HIV programming. It is split broadly into three main areas: human rights laws and treaties, political declarations, and human rights principles in HIV programming.57

Human rights are essential to reducing vulnerability to HIV. A human rights-based approach provides a common framework for translating international and national human rights documentation into practical programming at national level, improving the universal access to health and HIV-specific programmes.

– National AIDS Foundation, Mongolia58

Many international HIV bodies, such as UNAIDS and the Global Fund to Fight AIDS, Tuberculosis and Malaria, are strongly committed to rights-centred approaches to HIV. For instance, both UNAIDS and the Global Fund include non-governmental organisations in their governance bodies and work on HIV-related discrimination and abuse, particularly in relation to people who are socially marginalised and criminalised.59

Human rights laws and treaties

Human rights norms are outlined in international and regional treaties, covenants, conventions and laws. When countries sign these documents, they legally commit to enforcing these rights. They are also required to report to monitoring bodies on how these rights are being implemented.

For example, the International Covenant on Civil and Political Rights provides for rights such as equality, privacy and dignity. These rights apply to all individuals, including people affected by HIV and AIDS.60

Others deal with specific issues or the rights of certain populations. One treaty, the Convention on the Elimination of All Forms of Discrimination Against Women, contains guidance on women’s rights and gender equality.61

Political declarations and commitments

Along with human rights treaties, there are political declarations signed by governments that are not legally binding but represent strong political commitment. For example, the 2016 Political Declaration on Ending AIDS contains essential commitments by all governments to protect and promote the human rights of people living with, at risk of, and affected by HIV.62

There are also commitments that deal specifically with health and HIV. This includes the UNAIDS International Guidelines on HIV/AIDS and Human Rights, a tool that provides 12 guidelines for what countries must do to fulfil their human rights commitments.63

Human rights principles in HIV programming

Incorporating human rights principles into HIV programmes is crucial to creating an environment where those who are most vulnerable to HIV are able to realise their rights and access the services they need.

Frontline AIDS (previously known as the International HIV/AIDS Alliance) and the AIDS and Rights Alliance for Southern Africa (ARASA) provide one set of guidelines which highlight a number of key principles that form good practice.64

In 2017, UNAIDS and the Global Fund released technical documents on implementing rights-based HIV programmes. UNAIDS’ Fast-Track and human rights provides advice on how to ground expanding HIV services in human rights principles. The Global Fund’s HIV, human rights and gender equality guides those applying for Global Fund grants on how to design programmes that remove human rights-related barriers to HIV services, with a particular focus on gender-related barriers.65 66

Equality and non-discrimination

HIV programmes should respect, protect, promote and fulfil the right to equality and to non-discrimination.

Equal and full participation of all stakeholders

All relevant stakeholders (particularly people most affected by HIV) should be involved in HIV programmes as full and equal participants, giving them the power to bring about positive change in their own lives. This ensures that HIV programmes address their specific needs.

Putting communities at the centre of programmes

Communities should be put at the centre of HIV programmes to ensure a rights-based response and encourage ownership of the programmes. It also increases access to services that communities need, including people most affected by HIV.

Capacity-building of rights holders and decision-makers

Capacity-building helps decision-makers implement programmes and rights holders access programmes. It also helps to promote accountability by educating decision-makers about their obligations. Telling rights holders about their rights means that they can take action when these are violated or unfulfilled.

Accountability

When states fail to uphold human rights in line with international treaties and laws they should be held accountable. Individuals, communities and civil society should be able to take action when governments violate human rights.

Human rights and HIV programmes

Human rights-based HIV programmes should be implemented according to the local context and address the specific underlying social, cultural, political and economic issues that increase vulnerability to HIV and cause other related health problems.

Examples of human rights-related HIV programmes include:

  • stigma and discrimination reduction
  • legal services
  • monitoring and reforming laws, regulations and policies relating to HIV
  • rights education for people living with HIV and people most affected by HIV
  • sensitisation of lawmakers and law enforcement officials
  • human rights training for healthcare workers
  • reducing gender-related discrimination
  • community responses to HIV and human rights.67

Some examples of successful human rights-based HIV programmes are outlined below.

Training the peers of people who use drugs as paralegals - Jakarta, Indonesia

Indonesia applies the death penalty for drug-related offences, driving people who use drugs away from HIV and other vital services such as harm reduction programmes. Jakarta is one of the most affected areas.

The Lembaga Bantuan Hukum Masyarakat (Community Legal Aid Institute) trains people who use drugs to provide legal education to their peers and support lawyers who represent this group.

When someone is arrested for a drug-related offence, the Institute’s paralegals follow the arresting officers and detainees to the police station where they help negotiate access to HIV treatment or drug use treatment as well as release conditions.68

They are also trained to document individual cases, which helps the release of detainees and supports the consultations with lawyers who represent them in court. The paralegals also run workshops to help people who use drugs overcome stigma and better understand their legal rights.69
Sex workers stand up for their rights - Asunción, Paraguay

In 2013, the local government in Asunción, Paraguay passed legislation that required sex workers to have mandatory HIV testing and carry a health card detailing their health status.70

This was challenged by Unidas en la Esperenza, a female sex worker organisation, with the support of UNAIDS, the Pan American Health Organisation and other civil society groups.

The challenge proposed removing articles violating the rights of sex workers that hindered the HIV response in the city. After an intense period of advocacy and debate, the local government approved the proposed changes including the participation of sex workers in the implementation of the legislation. In addition, they were able to raise awareness and reduce discriminatory attitudes among local decision-makers.71
Advancing LGBT rights in the Caribbean

In 2018, Jason, an LGBT activist from Trinidad and Tobago, challenged his country’s law that banned same-sex relationships. Under sections 13 and 16 of Trinidad and Tobago’s Sexual Offences Act 1986, Trinidad and Tobago’s ‘buggery’ law imposed 25 years’ imprisonment, and five years for ‘serious indecency’ for intimacy between two women or two men.

A legal team worked on the case for free, and Jason received funding from Frontline AIDS’s Rapid Response Fund, which is supported by the Elton John AIDS Foundation. The case was chosen for the impact it could have on discriminatory same-sex laws across the Commonwealth, which in turn could improve LGBT people’s access to HIV and other healthcare services.72

“This is an important landmark decision, which I hope will be the start of a domino effect for the remaining countries in the Commonwealth who still have these discriminatory laws in place. We know that criminalisation increases vulnerability and impacts the ability of the LGBT community to access health and HIV services, so this is one step closer to breaking down these barriers.

– Shaun Mellors, Frontline AIDS.73

The human rights funding crisis

Despite a number of international commitments that put human rights at the heart of an effective HIV response, in 2015 (the most recent data available) just US$137 million was spent on the global human rights response to HIV74 This represents a tiny fraction of the $19 billion spent on the global HIV response in 2015.75

Civil society organisations surveyed by UNAIDS report reductions in funding for human rights and legal reform programmes, even in countries where human rights violations are fuelling the epidemic.76 77 However, some donors are changing their funding strategies to reflect the need to implement human rights-based HIV programming.78 For example, in 2018 the US President’s Emergency Plan for AIDS Relief (PEPFAR) committed to spend over US$360 million to support key populations. Around US$260 million of this will come via key populations-focused initiatives implemented through PEPFAR’s 2018 Country Operational Plans, while US$100 million will come from its Key Populations Investment Fund. The Fund will primarily support community-led organisations that are reaching key populations with HIV services.79

The Global Fund’s 2017–2022 strategy includes a greater commitment to expanding programmes that remove human rights barriers to services. The organisation has also revised its funding proposals policy so that all applications include an ‘appropriate focus on interventions that respond to key and vulnerable populations, human rights and gender-related barriers and vulnerabilities in all countries, regardless of income level’.80

In addition, many are using the UNAIDS’ Strategic Investment framework, which highlights addressing the human rights of key populations as a key indicator of the progress of programmes worldwide.81 The Elton John AIDS Foundation has reported that this approach has seen an increase in funding for key populations, particularly men who have sex with men.82 However, there has been some criticism of UNAIDS’ investment framework, as some see it as encouraging the perspective that removing human rights barriers to HIV services is important because they impede a good return on investment rather than because it is ethically right.83

The future of human rights and HIV programming

Responding to human rights needs to be a core component of funding for HIV programmes in order to end the AIDS epidemic by 2030. Indeed, a combination of advocacy, activism, legal cases and rights-related programming continues to advance the rights of people living with, and most affected by HIV. These victories are also informing responses to other evolving, high-stakes health issues such as Ebola and Zika.84

A string of legal victories mean that in many countries legislation is now in place that can be used to defend the rights of people living with, and most affected by, HIV. However, for people to use these laws to contest violations is a challenge in itself, particularly as those most affected by human rights abuses tend to lack the resources to do so. In many countries, the shrinking space for civil society is also limiting the power of non-governmental organisations working on HIV to push a rights-based agenda.85

Without adequate funding for, and consideration of, human rights in HIV programming, the most vulnerable will continue to be marginalised, undermining the HIV response as a whole.86 Building large-scale programmes that tackle human rights barriers is the only way to demonstrate the positive impact and cost-effectiveness of rights-based HIV programming, as well as signalling an unswerving commitment to the human rights of all people living with and affected by HIV.87

Photo credit: Flickr/UNAMID

Tools and resources: 
Last full review: 
19 October 2016
Next full review: 
18 October 2019
Last updated:
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Last full review:
19 October 2016
Next full review:
18 October 2019