South Asia has a concentrated HIV epidemic which impacts disproportionately on men who have sex with men (MSM) and transgender people. Other worrying aspects of the epidemic in the region include restrictive legal, policy and social environments; highly discriminatory stereotypes and myths; and violation of the rights of people of diverse sexual orientation and gender identities. Even in the absence of criminalization, other provisions of law that violate the rights of MSM and transgender communities are arbitrarily and inappropriately used obstructing HIV interventions, advocacy, outreach, and sexual health related service delivery.
In terms of working with MSM, sex workers and transgendered populations, the Sri Lankan Constitution considers male to male sex as illegal and as per the penal code imprisonment is enforced as punishment. The Sri Lankan legal framework takes a prohibitive stance towards sex workers (Vagrants Ordinance, Brothels Ordinance and Houses of Detention Ordinance) causing sex work to go completely underground with newer and more innovative ways of selling sex, for example vehicle based sex, where movable vehicles are used as place to solicit as well as engage in sex. This makes MSM, sex workers and transgender group extremely difficult to reach for provision of information and to ensure access to health services rendering them extremely vulnerable.
A recently study supported by the National STI and AIDS Control Programme (NSACP), UNFPA, UNAIDS, World Bank and the University of Manitoba, India, concluded a mapping and size estimation exercise of sex workers in 4 districts across the island which placed the number of sex workers in Sri Lanka at 35,000-47,000 and the number of men who have sex with men at 24,000-37,000 island-wide. This demonstrates the dire need for provisions and strategies to enable and facilitate access to health services for this group considered high risk to HIV infection spread throughout the country, especially MSM and transgendered persons who are sex workers who find themselves doubly vulnerable.
International human rights jurisprudence recognizes that addressing discrimination consists of both ensuring equality in laws and policies, and preventing and diminishing the conditions and attitudes that causes or perpetuates substantive discrimination among service providers. Addressing structural discrimination through engaging governments (justice, police, and health sectors), the media, faith based organisations and community are an important opportunity to alleviate stigma and discrimination that MSM and transgender persons experience in their day-to-day lives. Thus, a creative partnership with multiple sectors and stakeholders is critical to create a more enabling environment for effective engagement and partnership between MSM and transgender communities and HIV prevention, treatment, and care and support programmes.
The Asia Pacific Regional Dialogue of the Global Commission on HIV and the Law (Bangkok, 17 Feb 2011) highlighted that complex socio-cultural issues are exacerbated by punitive and discriminatory legal frameworks, criminalization of sex between men in some South Asia jurisdictions and law enforcement practices often drives these populations underground, compromising efforts to reach them with HIV information and services.
In support of the Global Commission, UNDP, together with SAARCLaw, the apex legal body in the South Asian region, International Development and Law Organization (IDLO) and the World Bank convened the South Asian Roundtable Dialogue on HIV and the Law (Kathmandu, 8-10 Nov 2011). As part of this Roundtable Meeting, a number of South Asian high court judges, lawyers, parliamentarians, law enforcement officials and representatives from key affected populations noted that many restrictive laws, policies and practices impede MSM and transgender people access to HIV, health and other social services, while stigma and institutional discrimination often pushes these high marginalized populations from mainstream social support programmes.
More recently, UN ESCAP Asia-Pacific High-level Intergovernmental Meeting on the Assessment of Progress against Commitments in the Political Declaration on HIV/AIDS and the Millennium Development Goals (Bangkok, 6-8 Feb 2012), member states “welcomed the efforts by some countries in the region to address legal and policy barriers as well as discriminatory practices which impeded HIV responses and compromised the rights of people living with and affected by HIV,” and acknowledge progress on the “legal recognition of transgender persons as the third gender in Nepal, recognition of the civil rights of transgender persons in Pakistan and endorsement of legislation on HIV/AIDS control and prevention, which committed government to providing the necessary resources for the HIV response and tackling stigma and discrimination.”
To increase access to HIV prevention, treatment, care and support services for MSM and transgender persons through an improved policy environment, it is crucial to advocate and address four major issues:
- Sensitization of legislators, parliamentarians, judiciary and law enforcement agencies to work towards replacing the current punitive laws, policies and practices with more rights based approaches;
- Enhanced capacity of health system to respond to health concerns of MSM and transgender people; the need for expanding coverage to deliver HIV prevention, treatment, care and allied health services;
- Engage with public media to sensitize and promote rights based services for MSM and transgender people can access HIV services with dignity and equity;
- Address stigma and discrimination by engaging with community based organization, faith based groups and other stakeholders to ensure people of diverse sexual orientation and gender identities can access HIV and other social services with dignity and equity.
In Sri Lanka, work is in progress to develop and finalize the National Strategic Plan for the period 2012-2016. It is therefore an opportune time to engage in actions that will generate firm outcomes that support advocacy for policy formulation in a way that is inclusive of all affected key populations, especially MSM, sex workers and Transgendered persons who are frequently left out of mainstream prevention work.
UNDP is keen to facilitate a suitable policy framework to ensure effective implementation of the NSP (2012-2016). And The Regional Advocacy framework developed by UNDP under the R9 South Asia Regional Global Fund Grant will provide strategic guidance in the preparation of a national advocacy strategy to increase access to HIV and health services for MSM, sex workers and transgendered persons.
In 2009, a National Consultation on MSM, HIV and Sexual Health, the first of its kind, was held in Negambo in November organized and conducted by Companions on a Journey (CoJ) and Naz Foundation International. A set of recommendations were made by the participants under several areas such as:
- Community development and mobilizing;
- Prevention care and support;
- Enabling environment, Health services;
- Strategic information;
- Technical support and resource mobilization.
A specific request that came from the participants was that a strategy needs to be set in place for MSM and transgendered community to access prevention care and support services.
Objectives of the Assignment:
- To develop a country level advocacy framework(s) that assist national partners (national community networks, national technical working groups, CCMs or other bodies) define an advocacy agenda and provide a framework of key rights-based related activities. The proposed framework is intended to support implementation of the National strategic Plan (NSP), integrate supportive activities into future Global Fund proposals and meet commitments under the recent ESCAP Asia-Pacific High-level Intergovernmental Meeting on the Assessment of Progress against Commitments in the Political Declaration on HIV/AIDS and the Millennium Development Goals.