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An enabling legal environment that protects and promotes human rights and gender equality supports rights-based responses to health that for all, including vulnerable and key populations, to leave no-one behind.

An enabling legal framework that protects and promotes human rights and gender equality is imperative to fostering the health and development of all people and attaining the United Nations 2030 Agenda for Sustainable Development and the Sustainable Development Goals. Protective laws, policies and practices support non-discrimination, equality and freedom from violence for vulnerable and key populations, allowing for rights-based health responses that promote:

  • access to effective health information and services without discrimination
  • reduction of health risks with appropriate prevention, treatment, care and support
  • participation meaningfully in the design, development, implementation, monitoring and evaluation of services
  • realization of human rights to equality, health and development

Populations who live in situations of inequality and exclusion and struggle to realise their basic human rights are vulnerable to health risks, including the risk of HIV, TB and malaria.

Vulnerable and key populations include populations that live in poverty without access to safe housing, water, sanitation and nutrition and those who are stigmatized, discriminated against, marginalized by society and even criminalized in law, policy and practice. These populations may struggle to fulfil their human rights, including their rights to access health and social services. They live in environments of inequality where they are unable to thrive, feel safe and actively participate in all aspects of society. Communicable diseases such as HIV, TB and malaria, and non-communicable diseases such as cancers and chronic respiratory illnesses, disproportionately affect vulnerable and key populations.

Case study Decriminalizing homosexuality in India

Decriminalizing homosexuality in India protects rights, including health rights, of men who have sex with men.

In September 2018 India's Supreme Court declared that the Indian law that effectively criminalizes consensual same-sex sex was unconstitutional and violated the basic rights of LGBT persons. The court ruled that, in so far as the law criminalizes consensual same-sex sexual acts between adults, it discriminates on the basis of sexual orientation and is a fundamental violation of basic human rights.

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The court decision protects the rights of LGBT persons to equality, non-discrimination, freedom of expression, privacy, dignity, life and liberty. It will also arguably have a wider impact on the lives of LGBT persons—including improving their physical and mental well-being and their access to health-care services. The court heard various arguments against criminalization of same-sex sex, including that in countries where same-sex sex is criminalized, LGBT populations experience extreme hardships, including psychosocial distress, and they tend to avoid seeking healthcare for fear of prosecution.

Responding to the Supreme Court decision, Christine Stegling, Executive Director of the International HIV/AIDS Alliance, noted: “Far too often, such laws drive LGBT people away from crucial services, such as HIV prevention and testing, and have a devastating impact on individuals’ health. Today is a victory for the thousands of activists whose tireless work will have a positive impact on the lives and health of India’s LGBT community.” i

According to UNAIDS’ 2017 statistics, HIV prevalence among gay men and other men who have sex with men in India is 2.7%, in a country where the national HIV prevalence amongst all adults is 0.2%. Around three out of ten gay men and men who have sex with men in India who are living with HIV do not know their HIV status and many people living with HIV do not have access to HIV treatment.

While the Indian Supreme Court decision has been widely celebrated among civil society and key populations, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (Ilga) reports that, in 2017, same-sex relationships were still criminalized in 72 countries, particularly in Africa, the Middle East and South Asia. It is critical that countries review their laws criminalizing same-sex sex, in order to protect and promote the rights of all people and to attain the Sustainable Development Goals for all people, ensuring no one is left behind.

The Special Session of the UN General Assembly (UNGASS) 2016 Political Declaration on HIV and AIDS and UNAIDS recognize that specific populations experience greater vulnerability to and risk of HIV exposure and are key to the epidemic and its response. UNAIDS considers gay men and men who have sex with men, sex workers and their clients, transgender people, people who inject drugs, migrants and prisoners as key populations. These populations often suffer from punitive laws or stigmatizing policies and are among the most likely to be exposed to HIV.

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The Political Declaration further notes the vulnerability of adolescent girls and young women, migrants and key populations and the fact that, despite their higher risk of HIV, many national HIV prevention, testing and treatment programmes fail to provide adequate access to services for these populations.

In the Risk, Rights & Health Supplementary Report of 2018, the Global Commission on HIV and the Law notes that "while new HIV infections decline, the number of people living with HIV has risen steadily: There are an estimated 2.7 million more people today living with HIV than there were in 2010. Members of marginalized populations—gay men and other men who have sex with men, people who use drugs, sex workers, transgender people, prisoners, and their sexual partners—accounted for 47 percent of new infections in 2017."

The UNAIDS Strategy 2016-2021 notes the need to reduce inequalities in access to service and commodities, so that young people, particularly young women and adolescent girls, access combination prevention services and are empowered to protect themselves from HIV and that tailored HIV combination prevention services are accessible to key populations, including sex workers, men who have sex with men, people who inject drugs, transgender people and prisoners, as well as migrants.

Vulnerable and key populations and the organizations that support them may be unable to operate and to participate in the design, delivery and monitoring of successful health responses. According to the Global Commission on HIV and the law “…many governments are rescinding women’s reproductive rights, persecuting LGBT people, sex workers, and people who use drugs, and stifling the civil society groups that provide services, hold governments to account and mobilize calls for justice” despite the clear evidence that outreach to and collaboration with key populations have positive benefits for reversing the HIV epidemic.”

Rights-based health programmes work to address critical enablers—the various legal, political, social, cultural and economic factors that make these populations more vulnerable to infection or illness or that create barriers to their access to prevention, treatment, care and support services and to their participation in national responses to health.

Example: Protective health laws and policies needed for people who use drugs
According to the World Drug Report 2017, one in six of the estimated 15.6 million people who inject drugs worldwide, are living with HIV, over half have hepatitis C and many have a heightened risk of contracting TB.
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People who use drugs continue to experience human rights abuses—from the death penalty and extrajudicial killings to inhumane and coerced drug treatment and conditional access to expensive medicines. According to The Global Commission on Drug Policy's 2016 report, strict drug laws have escalated public health crises in the form of HIV and hepatitis C epidemics. The Global Commission on HIV and the Law’s 2018 Risk, Rights & Health Supplementary Report describes how criminalization of the possession, use and cultivation of small amounts of illicit drugs leaves a trail of damage for people living with HIV and its co-infections. As described in the Commission’s 2012 report, Risks, Rights & Health, policies preferring criminalization and imprisonment over the provision of harm reduction services to people who use drugs, drive people underground and exacerbate health risks. The UN Standard Minimum Rules for Treatment of Prisoners of 1955—known as the Nelson Mandela Rules—mandate that prisoners receive the same standards of healthcare that are available in the community, without charge or discrimination, including for HIV, viral hepatitis, TB and other infectious diseases, as well as for drug dependence. Few prisons around the world follow these rules, with only 40 countries having at least one prison that offers access to HIV treatment or opioid substitution therapy.

The Global Commission on HIV and the Law has urged governments to adopt rights-based law, rights and policy responses to people who use drugs, recommending that states:

  • decriminalize the possession of drugs for personal use
  • replace compulsory or coercive services with evidence-based, voluntary services, including
    • closing down compulsory drug detention centres
    • not employing coercive methods (such as national drug user registries, mandatory HIV testing, mandating abstinence from drug use as a precondition for accessing HIV, TB or viral hepatitis treatment and forced treatment)
    • not confining persons during treatment or detaining or imprisoning anyone for failure to take up, adhere to or successfully complete HIV, TB or viral hepatitis therapy or drug dependence treatment
  • repeal laws or regulations that mandate total abstinence from drug use as a pre-condition for accessing treatment for HIV, TB or viral hepatitis
  • ensure that incarceration is a last resort for drug use and drug-dependence offences and should instead promote alternatives to incarceration for drug use, and drug-dependence offences
  • adopt legal protections to prevent discrimination against people who use drugs

The Global Fund prioritizes key populations in HIV, TB and malaria responses

Three of the world’s most serious communicable diseases—HIV, TB and malaria—disproportionately affect those populations least able to protect their rights and access non-discriminatory, quality and affordable health care.

Key populations are defined by the Global Fund as populations that have a high epidemiological impact from AIDS, TB and malaria, combined with reduced access to services and/or being criminalized or otherwise marginalized.

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The Key Populations Action Plan says: “Depending on the context, this might include groups such as orphans, street children, people with disabilities, people living in extreme poverty, mobile workers and other migrants. Some occupations – in particular mining – and contexts may enhance the risk of TB even more by limiting access to healthy environments. Children and pregnant women – in particular women with HIV - are particularly vulnerable to malaria as their immunity is reduced. In many African countries women and girls who are not marginalized – and so would not be defined as ‘key affected women‘ – are highly affected by HIV and must be considered as a vulnerable population.”

Depending on the local context, vulnerable populations require focused efforts and resources that address their enhanced needs and protect and promote their human rights, even though they do not fall under the general definition of “key populations”. The Global Fund’s new funding model directs resources to priority services where needs are greatest in order to achieve impact.”

The Global Fund also recognizes vulnerable populations—those who have increased vulnerabilities in a particular context but may not fit the criteria above—such as adolescent girls and young women and people with disabilities.

Key resources

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