Volume 3 Number 4 & Volume 4 Number 1 - Winter 1997/98
Gay and Lesbian Legal Issues and HIV/AIDS: A Discussion Paper
The Joint Project on Legal and Ethical Issues Raised by HIV/AIDS of the Canadian HIV/AIDS Legal Network and the Canadian AIDS Society released a Discussion Paper on gay and lesbian legal issues and HIV/AIDS in August 1997.[1]
The following provides a brief summary of the Paper and its conclusions.
Why a Discussion Paper on Gay and Lesbian Legal Issues and HIV/AIDS?
In Phase I of the Joint Network/CAS Project on Legal and Ethical Issues Raised by HIV/AIDS, over sixty individuals and organizations identified gay and lesbian legal issues as one of eight "top priority" legal and ethical issues raised by HIV/AIDS in Canada. They and the participants at a National Workshop on Gay and Lesbian Legal Issues held in March 1996 agreed that discrimination against gay men and lesbians in Canada continues and affects every aspect of their lives; and that discrimination and homophobia have a negative impact on their ability to protect themselves from contracting HIV, HIV prevention programs in general, and on the care, support, and treatment provided to people living with HIV/AIDS.
What Is the Link between Homophobia and Discrimination against Gays and Lesbians and HIV/AIDS?
Respecting the rights and dignity of gay and lesbian Canadians is a moral and legal imperative. In addition,
[i]n the context of AIDS, respect for human rights and dignity is not only a moral and legal imperative, but the basis for effective policies. There can no longer be any doubt that respect for human rights saves lives. It is widely recognized that laws and practices that discriminate against people with HIV or AIDS or those considered likely to be at risk of infection [such as gay men], or that in other ways violate human rights, are both morally indefensible and impede effective public health efforts.[2]
As stated by Justice Michael Kirby,
[t]he most effective strategies that we have so far found to help promote reduction of the spread of HIV involve the adoption of laws and policies which protect the rights of people most at risk of infection. This may seem surprising. It is a paradox. But it is so.[3]
Examples of how homophobia impacts on government and institutional responses to HIV/AIDS, on HIV prevention, and on care, support, and treatment of people living with HIV/AIDS include:
• because HIV/AIDS has primarily affected gay men and other marginalized populations, governments have been and continue to be less committed to fighting the disease;
• because many school systems remain reluctant to provide positive education about homosexuality, young gay men are more vulnerable to contracting HIV;
• because many provincial – and, until 1992, also the federal – prisons have refused to make condoms available to prisoners for fear of being seen as "condoning homosexual activity" (a clear example of homophobia), prisoners and their partners outside prison are more vulnerable to contracting HIV;
• because many still see HIV/AIDS as fundamentally a gay disease, the efforts of non-gay communities to generate their own effective responses to the epidemic have been hampered; and
• because of a fear of being identified as gay, some people may not seek (or may not seek early enough) testing for HIV and care, support and treatment for HIV-related diseases.
What Does the Discussion Paper Contain?
The Discussion Paper is divided into two parts. The purpose of Part I is to show the various forms that marginalization, stigmatization, discrimination and other intolerant attitudes take in a number of social sectors: first, it gives an account of discrimination against people living with HIV/AIDS and of the views of society with regard to homosexuality. Second, it assesses the impact of discrimination and stigmatization on the social environment and living conditions of gay men and lesbians, in particular through a consideration of the coming-out process and of internalized homophobia. Third, it illustrates the impact of HIV infection on gay men. Fourth, it discusses the issue of hidden discrimination in specific areas relating to HIV infection, namely research and health services. Finally, using the concept of social vulnerability, it illustrates the adverse affects of discrimination on efforts to prevent HIV infection.
The second part of the Paper is devoted to an analysis of how the law treats gays and lesbians. It shows how pervasive discrimination against gays and lesbians is, in all of the following areas: criminal law; censorship; protection from discrimination; benefits; children and parenting; immigration; and incapacity, wills, and estate litigation.
What Are the Goals of the Discussion Paper?
The goals are to document how pervasive discrimination against gay men and lesbians is in many sectors of life and in the law; to show how discrimination impacts on the lives of gay men and lesbians and, in the context of HIV/AIDS, on efforts to prevent the spread of HIV and to care for those living with HIV/AIDS; and to propose solutions that will enable Canada to decrease discrimination against gay men and lesbians and to increase and improve prevention and care efforts in the area of HIV/AIDS.
The Paper does not provide definitive answers; this will be attempted in the Final Report, after individuals and organizations in Canada and internationally have had an opportunity to provide the Project with their input. The conclusions in the Discussion Paper are preliminary conclusions that, it is hoped, will stimulate discussion on the many issues raised in the Paper.
What Does the Discussion Paper Conclude?
General Conclusions
The Discussion Paper provides clear evidence of how pervasive discrimination against gay men and lesbians is, and of the impact it has on their daily lives. This discrimination needs to be combatted, and the rights of gays and lesbians protected, first and foremost because it is right to do so:
We accord every human being that person's human rights because it is our duty and their right.[4]
In addition, the rights and dignity of gay men and lesbians need to be respected in order to better prevent the spread of HIV, and to provide better care, support, and treatment to people living with HIV or AIDS.
The conclusions in the Discussion Paper are directed to these goals. They do not propose a "quick fix" or offer easy answers to the many problems raised by HIV/AIDS. Nor do they suggest that the impact on human rights is the only consideration in designing public health policy. But they do argue that the fight against discrimination and for respect of the dignity of all persons needs to be treated "as seriously as science, medicine, and public health,"[5] recognizing that HIV and AIDS have disproportionately affected vulnerable populations, including gay men, at least in part because of their vulnerability and the discrimination they have been subjected to. While prevention campaigns, public health measures and the other interventions that have been undertaken to reduce the spread of HIV have been and continue to be important, they often do not address the underlying problems that cause vulnerability to HIV. These conclusions do. Some require only minor changes in laws. Other require changes in attitudes that can only be achieved in the longer term. They all require a commitment to fight HIV/AIDS, rather than the people most affected by it and their behaviours, and to fight bigotry and prejudice in society. They are not directed at giving gay men and lesbians "special rights." Rather, they recognize that discrimination – although it has diminished and although certain rights have been extended to gay men and lesbians – remains endemic and that gay men and lesbians deserve to be treated with equal respect, as a matter of justice and, in the context of HIV/AIDS, because this would help reduce the spread of HIV and allow us to better care for those living with HIV/AIDS.
Specific Conclusions
Among the specific conclusions reached in the Discussion Paper are:
• A study on homophobia and heterosexism in social policies and legislation and their impact on the social environment and well-being of gays and lesbians should be carried out. Social policies and legislation should be revised in light of the results obtained.
• Teachers and others involved in schools, centres and shelters should be educated about homosexuality in order to provide them with the skills needed to offer support to young gays and lesbians.
• Homosexuality should be included in the sex education programs given in schools.
• The establishment of support groups for young gays and lesbians in secondary and post-secondary educational institutions should be supported in order to help them through the coming-out process, among other things.
• A sexual orientation component should be integrated into research on the general population that deals with health and well-being.
• Multidisciplinary research should be undertaken on the social environment of gays, self-affirmation and empowerment, based on the participation of men who have sex with men, to evaluate the impact of discrimination on the spread of HIV.
• All curricula in medicine, nursing sciences and the social sciences should include a component on homosexuality.
• Funding for HIV prevention among gays should be increased.
• Multidisciplinary research should be carried out on less-known, less-reached groups, in particular youth, the socioeconomically disadvantaged, intravenous drug users, bisexual men, and those who do not identify themselves as either homosexual or bisexual.
• "States should enact or strengthen anti-discrimination and other protective laws that protect vulnerable groups, people living with HIV/AIDS and people with disabilities from discrimination in both the public and private sectors, ensure privacy and confidentiality and ethics in research involving human subjects, emphasize education and conciliation, and provide for speedy and effective administrative and civil remedies."[6]
• The government of Canada should acknowledge its responsibility for suppressing for many years safe-sex information that could have helped educate the gay community about safe-sex practices. This acknowledgment would help to redress the public prejudice that gay men are "to blame" for HIV.
• All provincial and territorial human rights acts need to include protection against discrimination on the ground of sexual orientation, to provide uniform protection from discrimination for lesbians and gays across Canada.
• Human rights protections in legislation must be accompanied by meaningful education programs and public awareness campaigns to ensure that discriminatory attitudes can be redressed over time.
• Programs, policies and legislation that confer rights and/or responsibilities on heterosexual spouses need to be examined in light of their purpose and redrafted to ensure that all those who fit within that purpose are covered, whether the relationship is same-sex or opposite-sex and, in some cases, whether or not a person is in a relationship.
• Judicial education programs on sexual orientation and homophobia are necessary in all areas of the law, but particularly in child custody and access cases, where there is considerable judicial discretion in determining the best interests of the child.
• The "family class" must be extended in the immigration regulations to permit lesbians and gays to sponsor same-sex partners to immigrate to Canada.
• All provinces and territories that do not currently have legislation providing for an effective means for the appointment of a representative for health-care decisions should adopt such legislation.
• All provinces and territories should provide that same-sex partners have the same rights (1) of inheritance in cases of intestacy; and (2) to apply for administration of an estate as heterosexual married spouses.
Next Steps
The Discussion Paper has been sent to a broad range of individuals and organizations active in HIV/AIDS issues, and their comments and input have been solicited. In March 1998, a final report will be published, providing a comprehensive analysis of the issues, and representing the full range of views expressed by those who commented on the Discussion Paper. The Final Report will provide a critical assessment of the issues and concrete recommendations.
For further information contact Ralf Jürgens, Project Coordinator, at (514) 987-3000 ext 8773#; fax: (514) 987-3422; email: ralfj@aidslaw.ca.
Copies of the Discussion Paper can be retrieved at the website of the Canadian HIV/AIDS Legal Network at www.aidslaw.ca or ordered through the National AIDS Clearinghouse. Tel: (613) 725-3434; fax: (613) 725-9826; email: aids/sida@cpha.ca
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ENDNOTES
[1]A Vassal, J Fisher, R Jürgens, R Hughes. Gay and Lesbian Legal Issues and HIV/AIDS: A Discussion Paper. Montréal: Canadian HIV/AIDS Legal Network & Canadian AIDS Society, 1997.
[2]J Hausermann. International Law, Advocacy, and Human Rights in the Context of AIDS. Pediatric AIDS and HIV Infection: Fetus to Adolescent 1992; 3(5): 248-250.
[3]M Kirby. Human Rights and the HIV Paradox. Lancet 1996; 348: 1217-1218. Reprinted in Canadian HIV/AIDS Policy & Law Newsletter 1997; 3(2/3): 50-52.
[4]Ibid.
[5]LO Gostin, Z Lazzarini. Human Rights and Public Health in the AIDS Pandemic. New York & Oxford: Oxford University Press, 1997, at xvii.
[6]Guidelines on HIV/AIDS and Human Rights. Geneva: UNAIDS and United Nations High Commissioner for Human Rights/ Centre for Human Rights, 1997. Reprinted in part in Canadian HIV/AIDS Policy & Law Newsletter 1997; 3(2/3): 1.