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Master Sharlene Jaggernauth, IAWJ Rising Leader

Human rights of women and girls living with HIV
By Sharlene Jaggernauth
Posted: 2024-04-05T15:18:46Z

Systemic issues affecting the human rights of women and girls living with HIV in the Caribbean

 

Master Sharlene Jaggernauth

Master of the High Court of Trinidad and Tobago

Family and Children Division

 

Introduction

The advancement of medical technologies over the past few decades has brought about a significant improvement on a global scale with respect to transmission rates of the HIV virus. Notwithstanding, current statistics reveal a continued disparity in the improvement of such transmission rates for males as compared with females. Female adolescents and young people make up an increasing proportion of people living with HIV worldwide.[1]


The factors affecting the basic human rights of women and girls living with HIV/AIDS was a main issue explored by regional medical and human rights experts from the Caribbean and Latin America region at the 5th Annual Caribbean Judges Forum on HIV Health and Human Rights which was hosted in Trinidad and Tobago by the Judicial Education Institute of Trinidad and Tobago (JEITT) in partnership with the Judicial Education Institute of the Organisation of Eastern Caribbean States (JEI-OECS) in collaboration with the United Nations Development Program (UNDP) on 26 and 27th October 2023. The event, which took a hybrid format, attracted the participation of a number of judicial officers from across the region who attended the event both in person and virtually.


Drawing on the learning presented by subject matter experts from across the Caribbean and Latin America, this article summarises of some of the key cultural, social and legal issues which affect the human rights of women and girls affected by HIV within the Caribbean region and considers the role of the judge in protecting the rights of this and other key populations.


The Statistical Context

According to the latest statistics from UNAIDS[2], approximately 39 million people were living with HIV globally in 2022. Women and girls accounted for 46% of all new infections in 2022. In sub-Saharan Africa, adolescent girls and young women accounted for more than 77% of new infections among young people aged 15-24 years in 2022.


The HIV epidemic in the Caribbean

Outside of sub-Saharan Africa, the Caribbean region has ranks as having the second highest prevalence of HIV (1.2%). There are currently approximately 333,000 persons living with HIV in the Caribbean, 11,000 of which are children between the ages of 0-14 years.

In 2022, the region saw 16,000 new infections with approximately 44 new infections per day and with 1500 children infected. There were 5600 deaths from HIV in 2022 regionally, 870 of which were children.

By comparison to previous statistics seen from 2010 to 2021, the current number of infections in 2022 was at the lowest seen in decades; evidencing the positive impact of the latest scientific developments in the prevention and treatment of HIV within the region. This downward trend in the numbers of infections has also been observed globally with an estimated 3.4 million new HIV cases in children having been averted since 2000.


As explained by UNAIDS Multi-Country Director, Dr. Richard Amenyah, this progress may be largely attributed to significant advancements which have been made over the last decade in the areas of testing as well as to recent scientific developments achieved in HIV Prevention and Treatment. These include the development of new medications and innovative therapies which now give hope to persons infected with HIV/ AIDS such as Pre-exposure prophylaxis (PrEP) which has been shown to significantly reduce the risk of HIV transmission with the Caribbean and Latin America. Further, more efficacious and effective antiretroviral therapies (ART) have become available which work to suppress the HIV virus to undetectable levels, thereby preventing transmission to others, whilst at the same time improving the quality of life for the affected person.


The situation of women and girls

Notwithstanding these encouraging developments, the global statistics nevertheless demonstrate a disparity between the benefits of such advancements as reflected in the divergent rates of infection observed between males and females. In 2022, there were 140,000 newly infected adolescent boys and young men (aged 15-24 years); as compared with 210,000 infections for adolescent girls and women of the same age group. Further, in the specific context of Caribbean region, whereas an 18% decrease in new infections of men was seen between 2010-2022, new infections only decreased for women by 10% for the same period.


The regional statistics therefore reflect the reality that despite efforts to combat the epidemic, several challenges remain in relation to the protection of women and girls. The primary problems in this regard arise out of systemic issues which lead to limited access to testing services and other treatment stigma and discrimination towards persons living with HIV/AIDS.


In June 2013, the General Assembly of the Organisation of the American States (OAS) adopted Resolution AG/RES. 2802 (XLIII-O/13) on the “Promotion and Protection of the Human Rights of People Vulnerable to, Living with or Affected by HIV/AIDS in the Americas”. In 2015, in collaboration with UNAIDS, the OAS prepared a report titled “Human Rights of Women Living with HIV in the Americas[3] with the aim of informing discussions among OAS states regarding the challenges posed to this vulnerable population by gender inequalities and necessary action to promote the rights of women affected by HIV/AIDS to basic rights including housing, healthcare, social protection, information, social and political participation, freedom from stigma, discrimination and violence.


Most recently in the 2024 Report of the UN Secretary-General, ‘Women, the Girl Child and HIV and AIDS’[4], summarised the issue as follows:

“Bias, discrimination and violence against women and girls on the basis of their sex has immense negative implications for ending AIDS. Bias against women as leaders undermines their role in ensuring HIV programming and research that is responsive to their needs. Discrimination in education, employment and legal standing denies women the protection that these factors provide against the impacts of HIV. Gender norms that deny women ownership of their bodies also restrict women’s ability to prevent HIV and to obtain testing and treatment…”

 

EXAMINATION OF THE KEY SYSTEMIC ISSUES AFFECTING WOMEN AND GIRLS LIVING WITH HIV

The 2022 Consolidated Guidelines on HIV, viral hepatitis and STI prevention, diagnosis, treatment and care for key populations identifies the following factors contributing to HIV and other STIs in key populations:

o  Criminalisation and Punitive, restrictive policies

o  Social Stigma

o  Violence and other human rights abuses or discrimination

o  Unemployment / Poverty

o  Gender / Race / Disability / Lack of Education

o  Reduced access to prevention, testing and treatment services

o  Barriers to safe sex or safe injections

o  Higher risk behaviours: unprotected sex, needles, syringe sharing


Discriminatory Laws and Policies

Table 1 below[5] shows the extent to which the legislative frameworks including the laws, policies and resolutions of 14 countries with the Latin America and Caribbean (LAC) region contain provisions which seek to:

Ø Counteract the spread of HIV

Ø Prevent the discrimination of persons living with HIV

Ø Promote sexual and reproductive health/sexual education



All 14 countries reported the existence of specific laws and/or policies for the control of HIV and to promote sexual and reproductive health as well as laws relating to the prevention of domestic violence. However, only 9 of the 14 countries had laws/policies in place to prevent discrimination against persons living with HIV. No country reported the existence of specific laws which address discrimination against women and girls in particular, since women/girls are deemed to fall within the definition of ‘persons’ or ‘vulnerable groups’. Brazil is an exception to this, however, having developed a public policy instrument called the “Plan to Address the Feminization of AIDS and other STIs.”[6]


Discriminatory laws and policies – Regional Scorecard for the Caribbean

A further assessment was conducted among 16 Caribbean countries which were assessed according to the following:

(i)           Existence of mandatory HIV testing for marriage, work or residence permits for certain groups

(ii)          Existence of laws protecting against discrimination on the basis of HIV status

(iii)         Constitutional or other non-discrimination provisions for sex work

(iv)         Constitutional or other non-discrimination provisions for sexual orientation

(v)          Constitutional or other non-discrimination provisions for gender identity

(vi)         Constitutional or other non-discrimination provisions for people who inject drugs


Of the foregoing, none of the 16 Caribbean countries have enacted laws which contain Constitutional or other non-discrimination provisions for specific to sex worker or sexual orientation. Sex workers are among the key vulnerable populations most at risk for HIV (Walters, 2012) and presently constitutes 2.6% of the total HIV affected population in the Caribbean, a large proportion of which would be women, and by extension, their children.


The preservation of archaic and discriminatory laws, such as those which continue to criminalise sex work, has ultimately led to the denial of access to such vulnerable populations to vital sexual reproductive health services, particularly for young people. The necessary legal reform for ensuring the protection of such persons from discrimination in this regard is limited if at all existent, giving rise to the continued disenfranchisement of this vulnerable population as well as inadequate funding for prevention programs.


This further affects the rights of such persons to access to justice when exposed to violence or the infringement of their fundamental rights and is compounded by poor practices of documentation and redress by the relevant authorities. Moreover, the capacity of those affected to engage in self-advocacy is hampered by lack of education and resources.


As it relates to girls, it must also be observed that regionally, existing child protection laws which prohibit sexual activity between minors operate to restrict access to evidence-based sexual health services including HIV testing for youth under the age of 16/18 years eg. The Child Care Protection Act (Jamaica), the Children Act (Trinidad).

 

Stigma and Discrimination

The countries participating in the OAS survey agreed that the main obstacles to the full realisation of the human rights of women and girls living with HIV are:

§ The stigma and discrimination associated with HIV status

§ Gender based violence

§ The lack of education / empowerment of women living with HIV

§ Their limited access to employment


The study revealed a clear intersection between pre-existing inequalities arising out of gender-based discrimination, which increases the vulnerability of this population. Such vulnerabilities are further compounded by other circumstances including social class, educational level and discrimination based on ethnicity.


In a 2013 study focused on sex workers, conducted by RedTraSex[7], it was found that female sex workers did not file complaints regarding infringements of their rights due to a lack of trust in the process, discrimination by the persons taking the complaint, threats and lack of knowledge about the legal process. Those who filed police reports disclosed instances of “mistreatment and abuse by the police”. Transgender persons also victims of discrimination from their families, health services and the protective services.


Reduced access to prevention, testing and treatment services

According to the 2015 OAS Report, studies on stigma and discrimination conducted in five Latin American countries[8] revealed that up to 20% of female respondents in Paraguay claimed to have been denied access to a health service due to their HIV status. Respondents also reported being denied of family planning and sexual and reproductive health services because of their status. This reality is further documented in other studies[9] which notes a discriminatory attitude by healthcare staff towards women with HIV, particularly those who are pregnant as well as incidences of such women being fired without justification. In the most extreme cases, other studies reveal the involuntary sterilization of women living with HIV as reported a study of four countries.[10]


Exposure to Violence

The absence of regulations on sex work has, according to studies, given rise to violence being inflicted upon them by law enforcement officers, including verbal, psychological, physical and sexual violence.[11]


Lack of education / access to information on health services

The 2015 OAS Study further reflects that a lack of sufficient sex education as well as access to sexual and reproductive health services for adolescent girls has compounded the problem of the transmission of HIV among this population together with the high rates of sexual violence in the LAC countries among women and girls.


The Way Forward: The Role of Judicial Officers

Based on the current evidence, it is clear that archaic societal norms and values continue to contribute to the maintenance of multiple levels of stigma and discrimination towards the key vulnerable populations living with HIV, and particularly female sex workers. The combined impact of these contributing factors is that the most vulnerable populations, including women and girls living with HIV are driven further underground, isolated and denied access to life saving services.


Addressing these underlying systemic issues requires a coordinated and multidisciplinary effort from various stakeholders including policymakers, healthcare providers and civil society organisations.


Among the various recommendations made in the conclusion to the 2024 Report of the Secretary General of the UN Economic and Social Council ‘Women, the girl child and HIV and AIDS’[12] is the following:

To advocate more supportive legal environments and women’s access to justice, including by reforming laws that require women’s and girls’ decisions to have a man’s consent, penalize women for their sexual and reproductive health choices, and overlook gender-based discrimination and violence, all of which drive HIV among women;


As the arm of state entrusted with the constitutional responsibility of ensuring that the fundamental rights of all citizens are respected, the members of the Judiciary have a valuable part to play in ensuring the protection of women and girls living with HIV from all forms of discrimination. 


Being conscious of the effects of the stigmatising laws and systems on the human rights of women and girls living with HIV, through the sensitised and unbiased adjudication of related matters which come before the Court, judges, when given an opportunity to do so by the cases brought before them, have a unique opportunity to provoke a much needed shift in the norms and values which currently exist in relation to women and girls living with HIV and to ultimately ensure that their fundamental human rights are recognised and protected.

 

 


[1] United Nations Children’s Fund (UNICEF), “Adolescent HIV prevention”, available at

https://data.unicef.org/topic/hivaids/adolescents-young-people/

[2] Joint United Nations Programme on HIV/ AIDS, https://www.unaids.org/en/resources/fact-sheet

[3] Luciano, D. and Martin, N., Human Rights of Women Living with HIV in the Americas, 2015, UNAIDS and CIM/OAS, https://www.oas.org/es/cim/docs/vih-ddhh-eng.pdf

[4]UN Economic and Social Council, 68th Session, Report of the Secretary-General, ‘Women, the girl child and HIV and AIDS, E/CN.6/2024/6, https://documents.un.org/doc/undoc/gen/n24/013/49/pdf/n2401349.pdf?token=7JrzVi8ofwHkMuMhwT&fe=true

[5] Ibid, pg. 20

[6] Ministry of Health. Department of Health Surveillance. National STI and AIDS Program: Integrated Plan to Address the Feminization of the Epidemic of AIDS and

other STIs, Brasilia, March 2007. Cited by FEIM (Fundación para Estudio e Investigación de la Mujer, Foundation for the Study and Investigation of Women). http://

www.feim.org.ar/pdf/doscaras2010.pdf

[7] RedTraSex (2015). Five reasons why sex work must be regulated. Argentina. http://www.redtrasex.org/Five-Reasons-Why-Sex-Work-Must-Be.html

[8] Mexico, Guatemala, Ecuador, Dominican Republic and Paraguay

[9] The Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en cuatro

países de Mesoamérica [Technical-legal study of violations of the reproductive rights of women with

HIV 1 Avalos Capín J. (2013). Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en cuatro países de Mesoamérica [Technical-legal

study of violations of the reproductive rights of women with HIV in four countries of Mesoamerica]. Balance Promoción para el Desarrollo y Juventud A.C. [Balance

Promotion for Development and Youth, Non-Profit Organization], Mexico. http://dvcn.aulaweb.org/mod/data/drx.php?ID=223in four countries of Mesoamerica]

[10] Avalos Capín J. (2013). Estudio técnico-jurídico de las violaciones a los derechos reproductivos de mujeres con VIH en cuatro países de Mesoamérica [Technical-legal study of violations of the reproductive rights of women with HIV in four countries of Mesoamerica]. Balance Promoción para el Desarrollo y Juventud A.C. [Balance Promotion for Development and Youth, Non-Profit Organization], Mexico. http://dvcn.aulaweb.org/mod/data/drx.php?ID=223

[11] RedTraSex (2015). Violación de los derechos humanos a las mujeres trabajadoras sexuales en catorce países de las Américas [Violation of the human rights of

female sex workers in fourteen countries of the Americas].

[12] n.3