Sexual health human rights and the law

28 | Sexual health, human rights and the law
International human rights bodies have called on
states, at a minimum, to ensure: the rights of all
sex workers, whether men, women or transgender
people, to access sexual health services; that they are
free from violence or discrimination, whether by state
agents or private persons; and that they have access
to equal protection of the law (15, 28, 73, 292, 293).
International guidelines published in 2012 by WHO,
entitled Prevention and treatment of HIV and other
sexually transmitted infections for sex workers in lowand
middle-income countries, recommend that all
countries should work toward decriminalization of
sex work and elimination of the unjust application
of non-criminal laws and regulations against
people engaged in sex work. Specifically, it is
recommended that governments should establish
anti-discrimination and other rights-respecting laws
to protect against discrimination and violence, and
other violations of rights faced by people engaged
in sex work in order to realize their human rights
and reduce their vulnerability to HIV infection and
the impact of AIDS. The guidelines also recommend
that anti-discrimination laws and regulations should
guarantee sex workers’ rights to social, health and
financial services. Health services should be made
available, accessible and acceptable to people
engaged in sex work based on the principles of
avoidance of stigma, non-discrimination and the
right to health (170).
A variety of measures have been put in place
by states to safeguard the health and rights
of sex workers. Some states have completely
decriminalized sex work and elaborated regulations
that cover health and safety issues, such as
formulation and implementation of workplace
occupational health and safety standards for the
brothel environment, and provision of contraception
services and sexual health information (e.g. Australia;
294, 295). The positive impact of such measures
include, for example, increased condom use among
brothel-based sex workers (up to 100% in some
instances), significantly reduced prevalence rates
of STIs, and very low rates of HIV infection (294, 296,
297). It has been reported that decriminalization
of prostitution has had a positive impact on sex
workers’ access to health services and occupational
health and safety programmes (294).
Some countries or particular states/provinces in a
country have decriminalized some or all forms of sex
work and have legalized it by recognizing sex work as
a form of labour and employment (282). These legal
regimes aim to give people engaged in sex work
access to legal and other protections available to other
workers, such as coverage by occupational health and
safety legislation and access to health services and
social and medical insurance (e.g. the Netherlands,
New Zealand; 298, 299). Labour law has also been used
to uphold the human rights of people engaged in sex
work, including protection against illegal dismissal and
guaranteeing maternity protection (e.g. Colombia and
South Africa; 300, 301), and access to social security
benefits (e.g. Colombia; 300).
Even in some countries with punitive laws and other
regulations against selling or buying sex, there have
been efforts to limit the harmful effects of these
laws on the health, safety and rights of people
engaged in sex work, including protection from
forced eviction, police brutality and violence (e.g.
Bangladesh; 302).
Criminalization of sex work can particularly impact
access to health services for young people under
18 engaged in sex work. Even though international
human rights law, international labour law and
international criminal law consider any engagement
of persons under 18 in sex work a crime (15, 293,
303), millions of young people and children are
engaged in the commercial sex sector. Many legal
regimes that criminalize sex work simultaneously
prosecute not only the people who coerce minors
into sex work but also the minors themselves.
Prosecution of people under 18 as criminal offenders
achieves little other than stigmatizing young
people and making their lives even more difficult.
International human rights standards hold that
states have an obligation “to enact and enforce
laws to prohibit all forms of sexual exploitation and
related trafficking; to collaborate with other States
Parties to eliminate inter-country trafficking; and to
provide appropriate health and counselling services
to adolescents who have been sexually exploited,