Towards the Right Side of History

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As a gay rights activist, I am overjoyed by the recent Supreme Court ruling which gives legal protection to the transgender community. Ever since we heard the news, there has been an outpouring of celebration, joy and relief. The news has made the entire LGBT community in India smile, which is not something we did much of following the Section 377 ruling of the Supreme Court in December last year which recriminalized homosexuality.

So why is this ruling important? To begin with, it’s a significant step forward for our transgender friends who have been discriminated against for a long time. In their victory, we feel happy, proud and hopeful. It’s as much their success as it is success for the wider LGBT movement in India, of which the transgender community has been a vital and integral part. It’s true that transgenders in India, like elsewhere, are a more visible part of the community, so a decision that affirms their identity is a shot in the arm for LGBT activists and community alike.

The decision has also made me more confident that India is ready for a broader dialogue around gender identity and sexual orientation. It’s taken many years of struggle to get here, and I’m not sure how many more years it will take for our community to be treated as equals. Section 377 is again the most immediate hurdle which we face. Tagged with criminality, equality remains a luxury for LGBT Indians.

I want my country to support my desire to live openly as a gay man. My government should not undermine healthy and productive relationships in my life. Basic freedoms that most Indians take for granted are out of reach for the LGBT community because 377 remains the law of the land.

After this burst of celebration, I am left wondering how much longer I will have to wait to feel ‘legal’. Next week, the Supreme Court will hear the curative petition against Section 377. Like many LGBT Indians, I will be waiting anxiously to learn which side of history the court will stand.

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Shaleen Rakesh is a gay rights activist and was instrumental in filing the Section 377 petition on behalf of Naz Foundation (India) Trust in 2001. Shaleen manages the ‘207 against 377’ campaign at India HIV/AIDS Alliance, where he also serves as Director: Technical Support. The campaign brings together the 207 organizations implementing the Pehchan programme on a common platform to undertake advocacy at national, state and district levels to protest against the 11th December 2013 Supreme Court judgment upholding constitutional validity of Section 377 of the Indian Penal Code thereby recriminalizing same-sex sexual behaviour. 

A Dark Day for India

shaleen_blog2I am crouched over my work desk at the Naz Foundation (India) Trust, combing through another draft of the Public Interest Litigation (PIL) against Section 377 of the Indian Penal Code, which criminalizes homosexuality. This case will be Naz India versus Government of India. This is 1999.

It will be another two years before we file the PIL through our lawyers, the Lawyers Collective HIV/AIDS unit. If the process of drafting the 200-odd page PIL was long and cumbersome, it was a cakewalk compared to the journey ahead.

I represented Naz India on this PIL on paper and in the courts. Week after week, there were hearings in the Delhi High Court after the petition was filed in 2001. Good judges and bad judges. Good hearings and bad hearings. And then, the nightmare! Delhi High Court rejected the petition on grounds that Naz India was not an ‘affected party’. An appeal in the Supreme Court and a win. The case back in high court. More hearings.

Then in 2009, the Delhi High Court upheld the PIL. Our celebration was ecstatic, but it has turned out to be premature. There was a counter-appeal in the Supreme Court. And, today, the day of judgement.

After fourteen years of struggle, in today’s ruling, Justice Singhvi stated that the 2009 Section 377 ruling was “constitutionally infirm” and set it aside.

I’m only just beginning to digest the news. This is too big a set-back, a devastating moment for millions of LGBT people in this country and around the world. The fight will go on, and we will rally for our rights as equal citizens. We will persevere, and we will triumph.

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The author, Shaleen Rakesh, is Director: Technical Support, India HIV/AIDS Alliance. Shaleen was instrumental in filing the PIL in Delhi High Court on behalf of Naz Foundation.

India HIV/AIDS Alliance (Alliance India) is a diverse partnership that brings together committed organisations and communities to support sustained responses to HIV in India. Complementing the Indian national programme, Alliance India works through capacity building, knowledge sharing, technical support and advocacy. Through our network of partners, Alliance India supports the delivery of effective, innovative, community-based HIV programmes to key populations affected by the epidemic.

From Inequality to Inclusion: Recognizing the Vulnerabilities of Sexual Minorities in the Response to the Delhi Gang-Rape

The Justice J.S. Verma Commission stresses that the word ‘sex’ in the Constitution of India should be understood to include sexual orientation. (Photo © 2012 Peter Caton for India HIV/AIDS Alliance)

The Justice J.S. Verma Commission stresses that the word ‘sex’ in the Constitution of India should be understood to include sexual orientation. (Photo © 2012 Peter Caton for India HIV/AIDS Alliance)

Convened in the aftermath of the horrific gang-rape and murder of a 23-year-old woman in New Delhi this past December, a special commission headed by former Chief Justice J.S. Verma was tasked to suggest amendments to criminal laws to improve the security of women in India and ensure speedier justice.

In its 657-page report released in January 2013, the Commission has provided an initial set of recommendations, but it has also gone a step beyond its mandate. Unexpectedly and to its great credit, the report has made special mention of India’s sexual minorities, who are too often also victims of social stigma, discrimination and violence.

Even in the first chapter of the report, the Commission stresses the need to acknowledge differences in sexual orientation as ‘a human reality’ and recognizes the range of sexual and gender identities.  It also makes clear that the use of the word ‘sex’ in the Constitution of India should be understood to include sexual orientation. The full passage is a remarkable testament to social progress in India:

We must also recognize that our society has the need to recognize different sexual orientations a human reality. In addition to homosexuality, bisexuality, and lesbianism, there also exists the transgender community. In view of the lack of scientific understanding of the different variations of orientation, even advanced societies have had to first declassify ‘homosexuality’ from being a mental disorder and now it is understood as a triangular development occasioned by evolution, partial conditioning and neurological underpinnings owing to genetic reasons. Further, we are clear that Article 15(c) of the constitution of India uses the word “sex” as including sexual orientation.”

The report also powerfully justifies the inclusion of sexual minorities as indisputably entitled to their human and legal rights and fully embraced as equal citizens:

“Thus, if human rights of freedom mean anything, India cannot deny the citizens the right to be different. The state must not use oppressive and repressive labeling of despised sexuality. Thus the right to sexual orientation is a human right guaranteed by the fundamental principles of equality. We must also add that transgender communities are also entitled to affirmation of gender autonomy. Our cultural prejudices must yield to constitutional principles of equality, empathy and respect.”

The report proposes qualitative indicators measuring the perception of safety and security for women and other vulnerable groups as a tool to improve police performance and accountability. It also makes case for ‘community policing,’ a strategy to involve local populations and increase confidence in the safety of the citizenry. The report places emphasis of building capacities of the police on both gender-based violence and discrimination.

These suggestions and the arguments used to justify them are not only indicative of dynamic social change in India but also offer an unprecedented opportunity for civil society—including those of us working to improve the health and wellbeing of marginalized communities—to build and sustain collaboration with law enforcement agencies and the judiciary.

Through this engagement, we can begin to address some of the structural forces that increase vulnerability to HIV and hamper efforts to create an enabling environment for women, sexual minorities and other groups who continue to live in constant fear for their safety and security.

Read our January 3rd blog, The Other Epidemic: Gender-based Violence in India.

Read the complete report here.

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The author of this post, Yadavendra Singh, is Senior Programme Officer: Capacity Building for Alliance India’s Pehchan Programme.

With support from the Global FundPehchan builds the capacity of 200 community-based organisations (CBOs) for men who have sex with men (MSM), transgenders and hijras in 17 states in India to be more effective partners in the government’s HIV prevention programme. By supporting the development of strong CBOs, Pehchan will address some of the capacity gaps that have often prevented CBOs from receiving government funding for much-needed HIV programming. Named Pehchan which in Hindi means ‘identity’, ‘recognition’ or ‘acknowledgement,’ this programme is implemented by India HIV/AIDS Alliance in consortium with Humsafar Trust, SAATHII, Sangama, and SIAAP and will reach 453,750 MSM, transgenders and hijras by 2015. It is the Global Fund’s largest single-country grant to date focused on the HIV response for vulnerable sexual minorities.

FROM STIGMA TO STRENGTH – Strategies for MSM, Transgender People and Allies in a Shifting AIDS Landscape

The Global Forum on MSM & HIV (MSMGF) is organizing today (21st July, 2012) the fifth MSM Pre-Conference event to the International AIDS Conference, to be held in Washington, DC. This year’s theme is: From Stigma to Strength: Strategies for MSM, Transgender People and Allies in a Shifting AIDS Landscape. Since its inception in 2006, the MSM Pre-Conference has grown to become the largest global gathering of activists, researchers, implementers and donors focused on the health and human rights of men who have sex with men.

The MSM Pre-Conference will provide a platform for up to 500 participants to exchange the most recent research, best practices, and advocacy strategies that advance the overall goal of universal access. The event will also include networking opportunities and skills building sessions focused on the changing research, programmatic, and policy landscapes in the AIDS sector.

Alliance India is speaking at various sessions and ensuring that the voices of millions are heard. For a more complete overview of sessions visit here.

James Robertson, Country Director, India HIV/AIDS Alliance is moderating a session today morning on Keeping the Pressure Up: A Dialogue with Donors on Increasing HIV Investments Targeted at Programs for MSM and Transgender People

This session on global financing is designed as a dialogue between donors and advocates on donor accountability and the lack of meaningful tracking of resources intended for MSM and transgender HIV programs. The panel will feature experts representing bilateral, multilateral, and private philanthropic agencies. Strategies for what advocates can do at the regional, national, and global levels to directly and meaningfully engage with donors will be discussed.

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Simran Shaikh, Programme Officer, Pehchan, India HIV/AIDS Alliance is a speaker for the session on Mounting an Advocacy Response Against Human Rights Violations and Abuses Faced by Transgender Communities Worldwide

This session will feature a panel of trans activists who will discuss various ways in which human rights abuses exacerbate HIV risk and negative health outcomes among transgender communities worldwide. Case study examples highlighting strategies for documenting and challenging these violations at the local, national, regional, and global levels will be discussed. The panelists will shed light on recent successes related to the removing of legal barriers among transgender people in Argentina, Australia, the United States, India, and Sweden.

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Jonathan Ripley, former Manager for Advocacy and Policy, Pehchan, India HIV/AIDS Alliance will moderate the session on Speaking Out Loud: Effective Strategies for Managing the Challenges Associated With MSM-Led Advocacy in Central America, North Africa, and Southeast Asia

This session will feature activists from North Africa, Central America, and Southeast Asia sharing their real-life experiences implementing advocacy strategies utilizing a community-led advocacy toolkit for the health and human rights of MSM. Major objectives include sharing the key steps involved with developing and implementing locally specific adaptations of Speaking Out; discussion of the major challenges, successes, and lessons learned from the Speaking Out process; and implications for future regional advocacy activities and initiatives. This session goal is to explore the commonalities, differences, and synergies that occurred while building advocacy capacity for MSM across the 3 regions. Participants will gain an enhanced understanding of the different experiences, knowledge, and approaches used to implement advocacy trainings for HIV and MSM activists in diverse regions. It is expected that this discussion will encourage South-South exchange, maximizing tools and resources to develop and implement local and international advocacy strategies.

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Alvaro Bermejo, Executive Director, International HIV/AIDS Alliance will speak on Challenges and Opportunities for Global Fund–Led HIV Programs Among MSM and Transgender People in Low – and Middle-Income Countries

This session is exclusively focused on Global Fund HIV programs among MSM and transgender people. This will give advocates the opportunity to learn more about recent changes within the Fund and the implications of these changes for key populations. Panelists for the session each represent the various core structures of the Fund (Board, Secretariat, Country Coordinating Mechanism, and Grant Recipient) and therefore will bring unique perspectives to the dialogue.

If you have any questions, please contact us at info@allianceindia.org. You can also view our AIDS 2012 Roadmap for all India HIV/AIDS Alliance sessions at the International AIDS Conference. We hope to see you at AIDS 2012!

The right to live and love: HIV and the Law

The Global Commission on HIV and the Law has launched its much awaited report “Risks, Rights & Health”. JVR Prasada Rao, one of the trustees of the India HIV/AIDS Alliance and the incoming UN Secretary-General Special Envoy for HIV/AIDS in the Asia-Pacific region, served as one of the Commissioners. The report is a useful resource for many countries, including India, and will help strengthen the on-going process of progressive law reform and improved enforcement of existing laws.

Although India’s national AIDS control programme supports an approach that ensures the protection of rights as a key element in successfully addressing HIV/AIDS, it often does not have the sanction of law in its work with high-risk but criminalised populations like sex workers and people who use drugs. HIV interventions for men who have sex with men (MSM) and transgender populations in India have benefitted from the 2009 Delhi High Court ruling decriminalising homosexuality, even as we await a final ruling from the Indian Supreme Court. While there has been some progress, Alliance India’s work with each of these groups as well as with people living with HIV/AIDS (PLHIV) in states across the country often takes place in the face of significant social stigma that is reinforced by an ambiguous and often punitive legal environment.

To build and sustain our momentum against the epidemic, the Commission’s report recommends decriminalizing private and consensual adult sexual behaviours, including same-sex sexual acts and voluntary sex work. It also advises governments to reform how they address drug use, including support for harm reduction programming and voluntary, evidence-based treatment for drug dependence. It’s encouraging to see these goals articulated in the report along with the recommendation to develop a legal regime for pharmaceutical patents to make ART affordable and accessible for PLHIV.  Laws are critical in holding states accountable in their responsibility to create conditions conducive to the enjoyment and exercise of fundamental rights. To that end, the Commission’s report points us in the right direction.

It is, however, not enough to think of the HIV and the Law report in simply a functional way, as good legal practice; rather it can serve as a mechanism to achieve social equity, justice, and health for all. The barriers created by inequality and discrimination limit access and undermine wellbeing. Progress requires efforts both to address discrimination itself and increase access as well as to promote legal and structural transformation.

Formulating policies and legal strategies to improve our response to HIV & AIDS demands a rights-based approach that will foster appropriate and ethical solutions to the legal and often political dilemmas raised by the epidemic while maintaining longer-term goals to transform systems of power to be more equitable. “Risks, Rights & Health” provides a road map and makes a compelling case that our journey will not be completed if we ignore the legal contexts that continue to fuel the epidemic.

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The author, Shaleen Rakesh, is  Director: Technical Support, India HIV/AIDS Alliance

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Government of India reaffirms support for decriminalizing homosexuality in UN report

A draft of the 2nd Universal Periodic Review (UPR) of India at the UN has been released. This review, which takes places once every four years, is conducted by the Human Rights Council and assesses the human rights records of each of the UN member states.

In the draft report, the Government of India included a very positive paragraph under the ‘Recent Development/Issues’ section. The paragraph, which relates to Section 377 of the Indian Penal Code (IPC), is as follows:

Homosexuals
27. Homosexual intercourse was a criminal offence until 2009 under Section 377 of the Indian Penal Code, 1860. The law was struck down by the 2009 Supreme Court decision in Naz Foundation v. Govt. of NCT of Delhi as a violation of fundamental rights in the case of consensual adults but not for minors. 

During the review, which concluded on 24th May 2012, the Government of India stated that it supports the Delhi High Court judgment on Section 377 of the IPC and, though it cannot determine the judicial outcome, it is hopeful that the Supreme Court of India takes a sympathetic view on the matter in its pending decision.

The complete draft report can be accessed here.

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The author of this post, Yadavendra Singh, is Senior Programme Officer: Capacity Building for Alliance India’s Pehchan Programme.  

With support from the Global Fund, Pehchan builds the capacity of 200 community-based organisations (CBOs) for men who have sex with men (MSM), transgenders and hijras in 17 states in India to be more effective partners in the government’s HIV prevention programme. By supporting the development of strong CBOs, Pehchan will address some of the capacity gaps that have often prevented CBOs from receiving government funding for much-needed HIV programming. Named Pehchan which in Hindi means ‘identity’, ‘recognition’ or ‘acknowledgement,’ this programme is implemented by India HIV/AIDS Alliance in consortium with Humsafar Trust, SAATHII, Sangama, and SIAAP and will reach 453,750 MSM, transgenders and hijras by 2015. It is the Global Fund’s largest single-country grant to date focused on the HIV response for vulnerable sexual minorities.

Fighting Transphobia and Homophobia: Pehchan team and supporters respond to cases of violence against the MSM, transgender and hijra community

International Day against Homophobia and Transphobia is celebrated on May 17th every year to commemorate the removal of homosexuality from the World Health Organisation’s International Classification of Diseases, which took place on this day in 1990. However, the rampant discrimination against the LGBT community that existed before this decision is still prevalent throughout the world.

In India, MSM, transgender and hijra (MTH) community members suffer from homophobia and transphobia frequently, yet many of them suffer silently. In order to address this issue of stigma that often takes the form of violence, Pehchan’s team members have implemented a crisis response system that takes relevant action within 24 hours of new cases being reported. Team members also provide trauma and violence-specific counseling, organize peer support meetings and provide community members who have experienced violence with referral linkages to the legal support system.

Events that took place late last year in the south Indian state of Andhra Pradesh (AP) illustrate the prevalence of institutionalized transphobia and the speed required to combat these occurrences by Alliance team members. Geetu (name changed), a transgender from Ongole, AP, and her partner were arrested without a warrant. They were booked under Indian Penal Code, Section 377, legislation that criminalized consensual same sex relationships, but which was read down by the Delhi High Court in 2009.

In custody of the arresting police officers, Geetu was imprisoned and physically assaulted. Panic, incited by rumors that police officials were looking to arrest other community members, spread quickly amongst the MSM, transgender and hijra community in Ongole and, soon, across the nation.

Ram Babu, Pehchan’s Advocacy Officer based at our regional office, responded rapidly to Geetu’s case. He met with Pratap Kumar, a lawyer with whom Pehchan’s community based organization staff had already established a relationship in preparation for moments like these. Pratap defended Geetu on a pro-bono basis and won her case, which led to her acquittal.

To reduce the chances of similar instances occurring in the future, a sensitization meeting was later held for police officers regarding the Delhi High Court’s verdict regarding IPC 377 and the implications it had for the health and human rights of the MSM, transgender and hijra community.

This case highlights the importance that organisations like Alliance India must place on building the capacity of their staff, partners and networks to take prompt action against the ongoing cases of transphobia and homophobia that plague sexual minority groups.

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With support from the Global Fund, Pehchan builds the capacity of 200 community-based organisations (CBOs) for men who have sex with men (MSM), transgenders and hijras in 17 states in India to be more effective partners in the government’s HIV prevention programme. By supporting the development of strong CBOs, Pehchan will address some of the capacity gaps that have often prevented CBOs from receiving government funding for much-needed HIV programming. Named Pehchan which in Hindi means ‘identity’, ‘recognition’ or ‘acknowledgement,’ this programme is implemented by India HIV/AIDS Alliance in consortium with Humsafar Trust, SAATHII, Sangama, and SIAAP and will reach 453,750 MSM, transgenders and hijras by 2015. It is the Global Fund’s largest single-country grant to date focused on the HIV response for vulnerable sexual minorities.