SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

The inability of many sexually stigmatized persons—rape victims (who may be viewed as
dishonoured or complicit), persons in sex work (viewed as criminals or socially unclean) --to
participate in assessing and making the laws that affect their lives results in law-making
divorced from the needs of those most at risk. Indeed, such laws may exacerbate exclusion
and ill-health, as with laws that require extra corroboration for the testimony of rape victims,
thus making prosecutions less successful and services for post-assault rape survivors harder
to access for many persons.
Research demonstrates that mandatory HIV testing, particularly when separated from
therapeutic intervention, is unjustified on public health grounds, as it has not been proven to
result in greater access or sustained use of treatment, nor more effective sharing of
information with sexual partners. 19 Moreover, such testing also violates rights: to privacy
and security of the person, but it is often also discriminatory, as such laws often selectively
target marginalized groups believed to be at higher risk of HIV infection, such as people in
sex work or prisoners. Because the testing is done in ways that violate privacy (such as when
police officials receive results for registered prostitutes) and which do not result in either
treatment of the affected persons or good preventive practices more generally, such tests can
be criticised as discriminatory.
Beliefs about the appropriate gender roles of women and men, which in turn dictate expected
sexual conduct, are significant sources of legal discrimination against women in particular.
Other laws discriminate against people who transgress social rules about feminine or
masculine social behaviour (gender expression), and women or men whose sexual conduct is
deemed unsuitable (sex without reproduction, sex outside of marriage, or gender-nonconformity
in regard to sexual practices. Many laws which discriminate against women, for
example, follow gender-based distinctions which are often tightly linked to legal and cultural
norms about women’s sexuality, as when a women’s marital status is a barrier to accessing
family planning or reproductive health technologies (RHT) or to adopt, or when the law treats
women with a ‘good reputation’ (i.e., chaste) differently and more protectively than women
with a ‘bad reputation (i.e., sexually promiscuous.)
Men may also run foul of these rules, when they fail to conform to gender roles of
masculinity, confront gender-based dress regulations, or face laws criminalizing their samesex
sexual behavior. These laws tend to produce both stigmatized persons (whose mental
health as well as physical health may suffer) and render health services to such persons
harder to deliver.
At national and international levels, one of the critical developments in anti-discrimination
law is the recognition that sexual harassment (unwanted sexuality-based verbal or physical
activities in workplace or educational settings which create a hostile environment) functions
as a barrier to equality, and as such counts as a form of discrimination. Sexual harassment
can have health effects in two ways: first, the harassment itself can be coercive or abusive
enough to have direct mental or physical health effects; second, in driving the harassed
workers out of their employment, it may remove them from a key source of health benefits.
19 For example, see “History, principles, and practice of health and human rights,” The Lancet, 370: 9585,
Pages 449-455 (2007)S. Gruskin, E. Mills, D. Tarantola; UNAIDS Guidance Note on provider-initiated HIV
testing and counselling in health facilities (May 2007),
http://www.unaids.org/en/KnowledgeCentre/Resources/PolicyGuidance/OperationGuidelines/20070517_policie
s_testing_keyoperationalguidelines.asp
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