Human Rights and HIV: Men Who Have Sex with Men

Vol. 37 No. 2

By

Richard A. Wilson is vice-chair of the ABA AIDS Coordinating Committee and a partner in the law firm of Grund & Leavitt, P.C., in Chicago, Illinois. He was president of the National LGBT Bar Association from 2006 to 2008.

It is widely known and understood that men who have sex with men (MSM) are in greater and substantially disproportionate numbers affected by HIV. This fact, combined with the structural lack of collective identity and the pervasive stigma associated with both homosexuality and HIV, presents particular human rights challenges and issues for outreach, education, testing, and treatment for MSM with HIV/AIDS.

There are several elements to the problem of HIV/AIDS and human rights for MSM: male-to-male sex or homosexuality; HIV/AIDS; discrimination and the stigma associated with each, and with both; the failure of established government and nongovernmental organizations (NGOs) to reach MSM; significantly higher rates of HIV seroprevalence among MSM compared to other risk groups (with few exceptions); and the increasing criminalization of both homosexuality and HIV. Individually or in any combination, each defines and determines both public and private responses to MSM with HIV—in addressing the needs of MSM; in providing appropriate and sufficient outreach, education, care, and treatment; and in reporting and assessing the results—as well as the willingness and ability of MSM to seek education, care, or treatment, to the extent they may know it is available.

 

Who are MSM?

MSM is a classification that refers to behavior, not identity. The classification was coined in the early 1990s to identify and study the behavior of male-to-male sexual activity, without regard to self-identity, sexual orientation, or other characteristics. The classification “. . . is an inclusive public health term used to define sexual behaviors, regardless of gender identity, motivation for engaging in sex, or identification with any particular ‘community.’” Men Who Have Sex with Men (Family Health International, 2009).

Defined first and last by behavior—the act of sexual relations between men and not sexual orientation or gender identity—MSM includes, in addition to men who self-identify in whole or in part based upon sexual orientation (gay or bisexual men) or gender identity (transgender and intersex), men who do not so self-identify or who may consider themselves heterosexual or not, but who engage in sex with other men. It also includes men who engage in what is commonly referred to as “situational” sex, or sex that takes place in all-male environments where men are in confined or limited contact primarily or solely with other men for periods of time, such as prison, the military, or certain school environments, and “occupational” sex, e.g., among male sex workers. The classification is valid and applicable across cultures and political entities. Lacking social cohesion or affinity, MSM similarly lack visibility, recognition, and political power. MSM typically do not form or inhabit discrete populations or groups—whether defined by sociopolitical, epidemiological, or other criteria—and have no known self-identity nor known political or social organization or entity, and no known assertion of rights or interests against the state.

 

The Problem

MSM throughout the world experience significantly higher rates of HIV seroprevalence than other risk groups, and disproportionately lack access to education, prevention, treatment, and care, at the hands of governments as well as private NGOs and religious or social welfare groups who refuse, neglect, or simply fail to acknowledge their existence, needs, and rights. The relationship between the state and MSM is mostly nonexistent. At best, it is determined and encumbered by both the formal lack of self-identification of the group and the resistance, failure, or even refusal of public and private entities to acknowledge the existence of MSM, much less educate them and include them in their treatment schemes. This stems from prevailing or competing political, social, and religious attitudes toward homosexuality and/or sex between or among men, informed by prejudice and stigma associated with homosexual activity in general and HIV and male-to-male sex in particular and determines the level, scope, and openness of education and outreach from government and from NGOs, including religious organizations as well as the church or broader religious community. It also determines the willingness and ability of MSM to seek education, prevention, and ultimately, testing and treatment. “There is evidence that several factors impede access to appropriate HIV interventions [including] an unwillingness of governments to invest in the health of men who have sex with men and transgender people and the impact of social marginalization on the desire to access health-related services and on the equal access to these services as well as to social benefits.” Cary Alan Johnson, Off the Map: How HIV/AIDS Programming is Failing Same-Sex Practicing People in Africa (2007).

The primary human rights challenge here is the known, identifiable, and widening chasm between HIV education, prevention, and treatment and a critically substantial element of all populations at risk—MSM—and its consequence for the spread of the virus both to other men and to women, whether or not known to be at risk. The problem works in both directions, and to the detriment of MSM: official government and nongovernment entities fail to reach out, and of those MSM who may have some education or awareness of HIV, entrenched prejudice and pervasive stigma too often prevents them from accessing available education, testing, or treatment. MSM fail to identify themselves, and the state and private entities providing HIV outreach, education, treatment, and care either refuse or fail in any case to reach them.

 

History

On June 27, 2001, the United Nations General Assembly, meeting in Special Session (UNGASS), promulgated a comprehensive call to action on human rights and global efforts to combat the spread of HIV/AIDS, including specific goals to be met within ten years. The Declaration of Commitment on HIV/AIDS (DoC) proclaimed that the “[r]ealisation of human rights and fundamental freedoms for all is essential to reduce vulnerability to HIV/AIDS” and established “targets and goals based on human rights law and principles in four areas: prevention (of new infections); provision of improved care, support and treatment for those infected with and affected by HIV/AIDS; reduction of vulnerability; and mitigation of the social and economic impact of HIV/AIDS” ( see http://www.un.org/ga/aids/coverage/Final
DeclarationHIVAIDS.html
). This included, for example, specific targets to be met within two years:

58. By 2003, enact, strengthen or enforce as appropriate legislation, regulations and other measures to eliminate all forms of discrimination against, and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS and members of vulnerable groups; in particular to ensure their access to, inter alia education, inheritance, employment, health care, social and health services, prevention, support, treatment, information and legal protection, while respecting their privacy and confidentiality; and develop strategies to combat stigma and social exclusion connected with the epidemic. Id.

At the last International AIDS Conference, in August 2008 in Mexico City, it was reported that HIV prevalence among men who have sex with men has been found to be as high as 25% in Ghana, 30% in Jamaica, 43% in coastal Kenya and 25% in Thailand. Among transgender people, HIV prevalence is thought to be even higher. . . . over 25% among transgender people in three Latin American countries and prevalences ranging from 10% to 42% in five Asian countries.” UNAIDS, UNAIDS Action Framework: Universal Access for Men who have Sex with Men and Transgender People.

As recently as March 2010, the U.S. Centers for Disease Control reported that “the rate of new HIV diagnoses among MSM is more than 44 times that of other men, and more than 40 times that of women.” CDC Analysis Provides New Look at Disproportionate Impact of HIV and Syphilis Among U.S. Gay and Bisexual Men.

Because of underreporting and, in many instances, a lack of acknowledgment of the existence of the risk group, of the problem, or of any rights or interests of MSM, actual and meaningfully comparative data on MSM and HIV/AIDS education, testing, and treatment is, at best, substantially deficient. The data from one country to another—from simple reporting of what efforts are being initiated, to quantifying what percentage of MSM are or are not being reached, by governments and NGOs—is substantially inconsistent. Whatever reporting is made, it is not good: it both confirms the higher HIV seroprevalence among MSM as well as their lack of access to HIV education, testing, treatment, and care. This is true with regard to both outreach and feedback. Reporting in 2007, the Global HIV Prevention Working Group, convened by the Bill & Melinda Gates Foundation and the Henry J. Kaiser Family Foundation, estimated that HIV prevention services reach only 9 percent of MSM. The Global HIV Prevention Working Group, Bringing HIV Prevention to Scale: An Urgent Global Priority (2007). Similarly, in 2006 and again in 2008, the United Nations estimated that “Globally, less than one in 20 men who have sex with men have access to the HIV prevention, treatment and care services they need.” UNAIDS, Report on the global AIDS epidemic,” Joint United Nations Programme on HIV/AIDS, Geneva (2006). Also in 2008, amfAR (The Foundation for AIDS Research) reported that “on the percentage of men who have sex with men receiving HIV prevention services show that . . . 71% of countries did not report on this indicator, [and] where information was reported, access to HIV services for men who have sex with men varied from 12% in Africa to 43% in Latin America.” Special Report: MSM, HIV, and the Road to Universal Access—How Far Have We Come? (emphasis added).

 

Stigma, HIV/AIDS, and MSM

Stigma drives this issue, and it is manifold. It includes and is fueled by social disapproval of homosexuality, fear of HIV, and, arguably, the influence one has on the other. Moreover, the stigma of HIV alone carries with it a mostly inexorable threshold (and often unspoken) presumption in much of the world that HIV seroconversion—at least among men—necessarily results from male-to-male sex.

The prevailing prejudice and social stigma surrounding male-to-male sexual activity and homosexuality, and HIV, at once defines, informs—and indeed, inhibits—HIV education and prevention among MSM throughout the world and the behavior of men seeking sex with men. This prejudice affects their willingness and ability to seek, find, and access established programs for HIV prevention, care, and treatment, and significantly complicates any structural or institutional attempts, both within as well as across political states, to reach them. Deeply entrenched social, political, and religious animus toward sexual activity between men and homosexuals, as well as HIV/AIDS, leads to pervasive stigma associated with each. Stigma surrounds and attaches to self-identification of homosexual behavior or identity, and is prevalent and pervasive among MSM—whether or not they self-identify with homosexual orientation—from social settings or societies where homosexuality is either illegal or at least not acceptable under any acknowledged circumstances, to those where it has gained greater acceptance and social integration. Prejudice and stigma inhibit and limit both outreach to and equal treatment of MSM, and cause them to limit their actions in seeking, much less availing themselves of, what programs or strategies may exist. Further, stigma, and its consequences—from social ostracism to criminal prosecution and imprisonment for mere status as homosexual—discourages MSM from even casual association with homosexual identity or with established HIV outreach and education, where it is widely presumed—particularly among men—that HIV infection is per se associated with male-to-male sexual activity. Thus, stigma attaches to both sexual orientation and HIV status, causing widespread fear among MSM that they be identified by either, and risk condemnation, social ostracism, or even criminal sanction where homosexuality remains punishable by criminal and religious law, and where transmission of HIV is becoming increasingly criminalized even in so-called western democracies that may have decriminalized, to a great extent, male-to-male sexual activity.

Further, prejudice and stigma are not limited to official, government efforts to reach MSM. Private groups, NGOs, and particularly religious entities continue to fail to acknowledge or accept the existence of homosexuals, or the incidence of MSM among their groups, excluding MSM from established HIV programs they may otherwise implement, and limiting the reporting of efforts to reach MSM.

The human rights crisis results from both the unequal treatment of MSM in HIV/AIDS strategies caused by prejudice and stigma as well as foreseeable consequences of this failure, including both the resulting disproportionate effect of the pandemic on MSM, and the increased exposure to those who may unknowingly or unwittingly engage in sexual activity with them, particularly women. The abysmal official failure to reach MSM and the underreporting of efforts to do so, where they exist, and of the efficacy of such efforts, are in significant part a direct consequence of the stigma surrounding homosexuality, HIV, and the combination of the two. Although these problems are neither new nor unknown, little has changed since the UNGASS 2001 DoC and its specific call to action on human rights and HIV.

 

MSM and Women

Complicating the lack of self-identification among MSM is the known fact that a substantial—again, neither accurately measured nor quantified—portion of MSM also (and often primarily) have sex with women, typically in marital relationships. “Overall, the HIV epidemic among men who have sex with men contributes significantly to wider HIV epidemics. In most countries of the world, the majority of men who have sex with men also have sex with women.” UNAIDS, UNAIDS Action Framework: Universal Access for Men who have Sex with Men and Transgender People, data.unaids.org/pub/
report/2009/jc1720_action_framework_msm_en.pdf. “As men who have sex with men may also have sex with women, if infected they can transmit the virus to their female partners or wives.” UNAIDS Policy Brief, HIV and Sex Between Men (2006).

The risk of HIV infection, already higher in populations of MSM than in society as a whole, is silently transferred to women, who are often unaware, frequently unwitting, and, at best, given the predominant lack of gender equality in much of the world, too often in social or political (and even religious) settings where they remain marginalized, have few resources or autonomy independent of men, or lack access or awareness to pursue whatever strategies may be available. Consequently, these women are unable, or fail, to avail themselves of appropriate education and treatment.

The result is known and foreseeable: substantially higher rates of HIV seroprevalence among MSM contributes to higher rates of infection among women who have sexual relations with them. Stefan Baral, et al., Elevated Risk for HIV Infection among Men who have Sex with Men in Low- and Middle-Income Countries 2000–2006: A Systematic Review, 4 PloS Medicine, e339 (2007). The failure to reach MSM results in a corollary failure to reach these women.

 

Increasing Criminalization of HIV Transmission

Finally, increasing calls for criminalizing HIV transmission and status—primarily driven by the fear and prejudice that has accompanied the pandemic since it first appeared, as well as by longer-standing prejudice against homosexuality and male-to-male sex—now appear to be resulting from the failure of governments and NGOs to equally and adequately reach MSM in HIV outreach, education, care, and treatment. Where the ability to control or limit the spread of new infection is known, but where, among MSM, the efforts are unevenly applied and continue to fall far short of stated goals, the results are not limited to increasing and disproportionate HIV seropositivity among MSM relative to other risk groups, but in increasing calls for criminalizing both behavior and status. The efforts at criminalization are increasing, and are misplaced, and only further marginalize MSM and prevent them from seeking, or obtaining, appropriate education, care, or treatment. E. Cameron, Criminalization of HIV Transmission: Poor Public Health Policy, 14 HIV/AIDS Policy & Law Review (2009).

 

Conclusion

The nexus between human rights and HIV is difficult to both define and address with populations of MSM. The difficulty stems from the fundamental lack of an identifiable population from culture to culture and the myriad impediments to outreach, education, testing, and treatment of persons who are at greater risk of infection than the general population, but at lesser visibility because of the stigma surrounding male-to-male sex and the social, religious, and, in much of the world, formal political disapproval of homosexuality, and sexual activity between men in particular. It is acknowledged that available education, testing, and treatment reaches MSM significantly less than it does any other HIV risk group, even though MSM continue to have higher HIV seroprevalence than other groups. In contrast to other established goals of HIV education and prevention, organized efforts to equally reach MSM have universally failed, and this is a human rights failure of increasingly staggering proportions. This includes the foreseeable, and equally alarming, increasing HIV seropositivity among women whose only known risk of infection is from sexual relations with MSM.

In 2009, the UN published its UNAIDS Action Framework: Universal Access for Men Who Have Sex with Men and Transgender People , which resulted from a comprehensive review of strategies to date and particularly since the 2001 UNGASS DoC on HIV/AIDS. The report sets forth in detail three comprehensive objectives: to “[i]mprove the human rights situation for men who have sex with men and transgender people—the cornerstone to an effective response to HIV”; to “[s]trengthen and promote the evidence base on men who have sex with men, transgender people and HIV”; and to “[s]trengthen capacity and promote partnerships to ensure broader and better responses for men who have sex with men, transgender people and HIV” (http://www.data.unaids.org/pub/report/2009/jc1720_action_framework_msm_en.pdf). The objectives are supported in detail. Given the scope of the problem and the failure to date to bridge the widening gap between MSM and HIV education, access, and care, the challenge appears substantially greater than ever. It comes as little surprise to most who have followed the pandemic and who understand the unique problem of social stigma against HIV and longer-standing social disapproval of male-to-male sex, that when it comes to MSM, such efforts have met with little success.

Experience shows that recognition of the rights of people with different sexual identities, both in law and practice, combined with sufficient, scaled-up HIV programming to address HIV and health needs are necessary and complementary components for a successful response. Countries may choose to prioritize one or the other component but both have to fall into place to effectively deal with the epidemic as it relates to sex between men. UNAIDS Policy Brief, HIV and Sex Between Men (2006).

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