Dear Nashida and members of the HIV APCOP,

I have been following this excellent e discussion on HIV and Law. As rightly pointed out by Nashida, your inputs will greatly help the work of the Commission on HIV and Law.

I also look forward to the summary of the discussion which I can take back to other regional dialogues as well as to the next meeting of the Commission.

Thanks and best regards,

Prasada Rao

J.V.R.Prasada Rao,
Member Secretary,Global Commission on HIV and Law &
Special Advisor to Executive Director,
UNAIDS
11 Olof Palme Marg
Vasant Vihar
New Delhi-110057, INDIA
+ 91 11 41354545 ext 333

[Consolidated response from Jacob Kupu and Stella-Marie Kombul]

Submitted by Jacob Kupu on Thu, 03/11/2011 - 07:25.

Hi everyone, I take this opportunity to add few comments on the above subject . All those things said in the past weeks /months are real life issues. I work for the govrnment as a HIV program Officer and I have been bombarded with questions on how the GOPNG can review its fundermental laws .And one of the way forward for PNG is to established a Human Rights Commission Office. Im saying this because all the best practices and laws you use in other Asisa Pacific countries dosen't exist in PNG. I strongly recomend for Development Partners UNAIDS, AUSAID etc to invite people from the Public sectors to give insights on Polcies that guides the implementation of the best practices. IN PNG, I only see the courts /laws addressing Human Rights cases when they are comfortable with evidence provide and I find it very hard to see police,or lawyers and judges in their rulings  many times throw out cases involving rape due to lack of evidence .

This indicates PNG is not ready in terms of addressing issues surronding transgeneder and Sexwork..or even Gender and HIV.

1. Trainings and advocay is need at the Public sector level.
2. Trainings on HIV and Gender based Violence and other Human Right related issues are seen as work of NGOs and Faith Based Organisations.
3. Few Policies developed by the Department of Community Development because of Minister Carol Kidu's strong Political Leadership and commitment in empowering women in PNG .
4. Development Funds for HIV and Gender related programs not channelled through development budget  process for the programs on the ground to get prominances and recognization from the governmnet. after all, its the government that will take ownership of the programs.
5. Public servants not empowered with knowledges,on laws and practices understanding the issues discussed by you all.
6. NGOs not sharing their best strategies and Policies on how they  deal with sexworkers, Transgenders and other related issues-always blame government for not funding their programs.

Finaly, I see a need for the establishmnet of HRC Office in PNG ,only then we will address the other cross-sectoral issues

Cheers,

Jacob Kupu
HIV Program Officer
Department Of National Planning &Monitoring P O Box 631 WAIGANI,NCD Papua New Guinea

Telephone:+675 3288822/8549
Mobile      +675 737 65034
Email:jacob_kupu@planning.gov.pg

Submitted by Stella Kombul on Thu, 03/210/2011 - 10:45.

So many women, children and young girls in the rural communities who are infected and affected by HIV in PNG are unaware of the HAMP Act which guards and protects them. Traditional law and customs are widely practiced and valued throughout the country. Inheritance and property rights retain a distinctive gender bias. There is an urgent need for PNG government to assist INGOs, CBOs and FBOs to sensitize village leaders, church leaders, head of schools and churches, parents, etc,  on legal rights. Further, women in many instances are neither aware of their legal rights (as PLHIV or sex workers or victims of VAW), nor have the means to seek recourse to the law. There needs to be more awareness on legal rights (especially on the HAMP Act here in PNG), strengthening of existing legal services and capacity building of human resources attached to those services at community level.

I work with youths and assist young men and women aged 12 to 30 years in the response to HIV in the rural areas of Central and Gulf Provinces. I find that although there are services in the areas where legal advice could be shuck for violence or stigma or discrimination, most women have the fear of losing their partners, or relatives or their share and value in the community and so do not seek assistance.  They have the fear of losing their sense of belonging to their community and family and so they suffer the consequences silently. In my work, I advocate for gender equality and try to make it known to the communities, especially the men that the women and children have equal right as men and legal rights to protect themselves from all forms of violence. I also make it known to service providers that protecting women, children and men who have gone to them for help and addressing issues affecting them in a holistic manner must be a priority.

How best can this be done and for other provinces in PNG as well?

Thank you

stella  

Stella- Marie KOMBUL
Youth and HIV Program Officer
ChildFund Papua New Guinea
PO Box 671
Gordons, NCD
Papua New Guinea

P: (675) 323 2544
F: (675) 323 2562
E: skombul@childfund.org.pg
W: www.childfund.org.au

Protect Your Children
Be HONEST and RESPECT your partner
Eradicate violence in the family

We from PWN+ India would like to raise some issues on the Immoral Trafficking Act.

In the Remand Home and Rehabilitation center

• HIV testing should be done with consent
• Pre test and post test counseling should be included in the testing process
• Women’s status should not be published in media
• Food, accommodation, clothing costs must be increased depending on the increase in prices of these good
• In the rehab center women are trained on candle making and tailoring. These skills do not give women good jobs or incomes. They should be trained on things that will give them a better income.   
• Police should not take advantage and harass women in such centers 

Regards

P. Kousalya

[We have now come to the last week of the e-discussion. This week we will focus on Access to justice for women living with HIV. Please send your feedback to us by  11 March 2011]

Evidence from submissions to the Commission show that, in several countries, law enforcement agencies behave extra-legally, by imposing “their own conceptions of morality” on women living with or vulnerable to HIV. These practices are aided and abetted by a general social stigma, especially, against HIV and sex work, suggesting the need for attitudinal change within society in general, and law enforcers in particular.

Women’s resilience against the potential legal and extra-legal exploitation depends to a great extent on their empowerment. This, in turn, depends on guaranteeing their equitable economic rights (especially, with regard to employment, inheritance and property); enhancing their awareness of existing legal provisions; and enabling their access to legal redress. However, in several countries, inheritance and property rights retain a distinctive gender bias. Further, women in many instances are neither aware of their legal rights (as PLHIV or sex workers or victims of VAW), nor have the means to seek recourse to the law.

• What can de done to enhance access to justice for:
  • women living with HIV
  • female sex workers and women who inject drugs; and
  • victims of violence against women

• How can problems of inequity (in law), be mitigated?

Thanks

HIV APCoP Facilitator

Hi all.

I am Balinus Helapu. I was with the Catholic Family Life Apostolate of PNG & SI for 4 years and GBV became an interesting topic and issue for me. In trying to understand and help the family coordinators in the provinces right throughout PNG to understand what GBV is, we found understanding what GBV is very important.

If 85% of our PNG population is in the rural areas where well over maybe half is illiterate, what is GBV to them in simple language? I believe one of the many reasons why people fail to fully understand GBV is the language it is presented in.

It will be interesting to know from those who have made any progress in getting the information across to the people at village level the challenges they were faced with in trying to get it across to the illiterate population.  

Papua New Guinea's formal legal system is based on the English common law, imported there by way of Australian law. So the Criminal Code at Section 210 still creates the 'sodomy offence' applying to a person who

'(a)    sexually penetrates any person against the order of nature; or
(b)    sexually penetrates an animal; or
(c)    permits a male person to sexually penetrate him or her against the order of nature.'

Recently, Michael Kirby commented in the Sydney Morning Herald on 21 Feb -

'In January, I attended a meeting of the Eminent Persons Group, a body examining the future of the Commonwealth. It will report for the Commonwealth Heads of Government Meeting in Perth in October. The group was established to breathe new life into the Commonwealth. In front of the group was clear evidence that rates of HIV infection in Commonwealth countries are twice that of the rest of the world. Why?
'In more than 40 of the 54 nations of the Commonwealth, homosexual activity is illegal, even when conducted in private between consenting adults. The ''white'' dominions and a few others have got rid of these laws, and many of the attitudes they reinforce. But in the ''new'' Commonwealth, they remain resolutely in place. Likewise, laws and policies on prostitution. Getting fresh thinking on these topics is very hard.' (http://www.smh.com.au/opinion/society-and-culture/speaking-in-tongues-on-aids-20110220-1b0y8.html)

Criminalising 'prostitution' was a little tricker.  It was easy enough in colonial times, but at Independence, the newly formed Law Reform Commission, in a review of the 'Police Offences' laws of the two former territories, advocated the abolition of any offence of soliciting, although in their proposed new Summary Offences Act, offences of pimping and brothel-keeping were retained.  In other words, prostitution per se was no longer to be an offence although it was an offence for others to harbour prostitutes or to live on the earnings of prostitution (the 'pimping offence'). However, shortly after in 1978, an Australian judge managed to construe the pimping offence to apply to anyone who sold sex.  I am not aware of a similar construction of this offence anywhere else in the common law world.

There has been no further reform of this particular offence since, and it is used by the police not only to prosecute women who sell sex, but also to force them to give sex, to subject them to abuse and violence, and so on.  Human Rights Watch published two damning reports of police abuse of minors and sex workers, in 2005 and 2006.

In short, it seems that the form of laws criminalising sexuality in most of the Asia-Pacific region was informed by the mores of the metropoles at the time of colonisation (note the difference in the legal systems of Francophone countries of the Pacific, for example) but the "new Commonwealth" insists on clinging to them, even strengthening them.  This begs the question: why?

Christine Stewart
PhD Scholar
School of Culture History and Language
College of Asia Pacific
Australian National University

[We would like to thank you very much for all the responses we had last week. The e-discussion this week will change its focus to HIV and laws on gender based violence.  Please send your feedback to us by 3 March 2011.]

Gender based violence (GBV) can contribute directly to increased risk of contracting HIV and, indirectly, by sustaining gender inequality in society. While laws exist in almost all countries against GBV, they are inadequately and inconsistently enforced. In some countries, laws contradict each other, making women more vulnerable to violence. For example, in some countries marital rape carries a significantly lesser punishment compared to other forms of rape. In others, the lack of laws against bigamy or polygamy contribute to perpetuating GBV.

• How can we best combat gender based violence through legal reform?
• How can enforcement of laws against gender based violence be improved?

HIV-APCoP Facilitator

[Consolidated response relating to PNG: Annie McPherson, Christine Stewart, and Joey Joleen Siosaia W.C.A. Mataele]

Submitted by Joleenm10@hotma... on Fri, 02/25/2011 - 17:23.

We from the Tonga Leitis' Association are proud to say that we fully support the cause and May God be praise with all our work.

Ms. Joey Joleen Siosaia W.C.A. Mataele
CEO Jowella Group
Chairman - Pacific Sexual Diversity Network
ED/Co-Founder - Tonga Leitis' Association
P.O. Box 783
Nuku'alofa
Kingdom of Tonga.
Ph: +676 771-8021/887-6686/8761617
      + 676 8628471
email; joleen@jowellagroup.com; joleenm10@hotmail.com

Submitted by Christine Stewart on Fri, 02/25/2011 - 16:28.

Papua New Guinea's formal legal system is based on the English common law, imported there by way of Australian law. So the Criminal Code at Section 210 still creates the 'sodomy offence' applying to a person who
'(a)    sexually penetrates any person against the order of nature; or
(b)    sexually penetrates an animal; or
(c)    permits a male person to sexually penetrate him or her against the order of nature.'

Recently, Michael Kirby commented in the Sydney Morning Herald on 21 Feb -
'In January, I attended a meeting of the Eminent Persons Group, a body examining the future of the Commonwealth. It will report for the Commonwealth Heads of Government Meeting in Perth in October. The group was established to breathe new life into the Commonwealth. In front of the group was clear evidence that rates of HIV infection in Commonwealth countries are twice that of the rest of the world. Why?
'In more than 40 of the 54 nations of the Commonwealth, homosexual activity is illegal, even when conducted in private between consenting adults. The ''white'' dominions and a few others have got rid of these laws, and many of the attitudes they reinforce. But in the ''new'' Commonwealth, they remain resolutely in place. Likewise, laws and policies on prostitution. Getting fresh thinking on these topics is very hard.' (http://www.smh.com.au/opinion/society-and-culture/speaking-in-tongues-on...)

Criminalising 'prostitution' was a little tricker.  It was easy enough in colonial times, but at Independence, the newly formed Law Reform Commission, in a review of the 'Police Offences' laws of the two former territories, advocated the abolition of any offence of soliciting, although in their proposed new Summary Offences Act, offences of pimping and brothel-keeping were retained.  In other words, prostitution per se was no longer to be an offence although it was an offence for others to harbour prostitutes or to live on the earnings of prostitution (the 'pimping offence'). However, shortly after in 1978, an Australian judge managed to construe the pimping offence to apply to anyone who sold sex.  I am not aware of a similar construction of this offence anywhere else in the common law world.

There has been no further reform of this particular offence since, and it is used by the police not only to prosecute women who sell sex, but also to force them to give sex, to subject them to abuse and violence, and so on.  Human Rights Watch published two damning reports of police abuse of minors and sex workers, in 2005 and 2006.

In short, it seems that the form of laws criminalising sexuality in most of the Asia-Pacific region was informed by the mores of the metropoles at the time of colonisation (note the difference in the legal systems of Francophone countries of the Pacific, for example) but the "new Commonwealth" insists on clinging to them, even strengthening them.  This begs the question: why?

Christine Stewart
PhD Scholar
School of Culture History and Language
College of Asia Pacific
Australian National University

Submitted by Annie McPherson on Fri, 02/25/2011 - 13:52.

Hello everyone, this Annie.

In Maura’s comments she talked about what is currently happening in PNG on the decriminalisation of Sex between same sex (MSM), Sex work. This is a very important change for PNG. Cabinet Minister Dame Carol Kidu responsible for The Department of Community Development, together with partners of civil society and development partners having been working very hard for the past 2 years in an attempt to bring about change.  

PNG constitution Preamble talks about the very Human Rights we are talking about here, so how can being an MSM be unconstitutional, how can your right to choose if you wish to be a sex worker be a criminal act and isn’t sex work a profession. “The right to choose” what does that means in PNG? …………Absolutely nothing. 

The human rights abuses, domestic violence, violence against women has become an accepted practice in PNG and because of acceptance it is like a spectator sport. A women being smashed around by a male partner is not my business and therefore we stand/sit watch and pretend that it is really not happening. 

I travelled to Fiji 2 years ago and I was so liberated to people being people, Trans-genders were beautifully dress in their choice of attire and moving around so freely without fear. This experience was very difficult to swallow when I thought to the friends in PNG and their public and private struggles. 

Many PNG Leaders hide behind religion and make blanket comments like “PNG is a Christian Nation” however our behaviour contradicts such statements. That it give us the right to make judgments and cast a stone at another and prejudge. Such comment also make us close our minds to learning and accepting of change.

I also therefore call on the Government and Law makers of Papua New Guinea and the world (United Nations) to make the world safe and free of human right abuses TODAY.  

Annie McPherson
Executive Director
Igat Hope PNG Inc

[Consolidated response from Mohsin Raza Abbas and Mereseini Bower addressing last week's topic of laws that criminalize people living with and vulnerable to HIV]

Submitted by mohsin.raza.abb... on Sat, 02/26/2011 - 05:08.

How can multi-stakeholder partnerships (involving governments, civil society groups and those living with or vulnerable to HIV) be formed and sustained to enact rights-based legislation and repeal discriminatory laws?

In our recent presentation at ‘Pakistan Human Rights Forum’, we stressed on policy makers and civil society that Police must be made to be accountable to communities and protect and serve all individuals, including sex workers. But participants noted that police are often the primary perpetrators of abuse. In Pakistan, the police go beyond their mandate of law enforcement to impose their own conceptions of morality, such as the idea that women shouldn’t be in control of their sexual behavior. Participants discussed risks confronted by NGOs that try to work with police. Some are co-opted into informing on sex worker communities or facilitating enforcement of prostitution law. Or conversely, NGO staff may be attacked or arrested for the work they carry out with and on behalf of sex workers and other marginalized groups. Participants stressed that the strategies used to address policing tactics must vary according to local realities. For example, lawyers may be useful in some places to contest police abuse. However, laws and courts are irrelevant in many places, and collective action may be the best way to restrain police. Others stressed that pragmatic reforms work best, such as working against police corruption by advocating for better police training, internal accountability and higher police salaries.

In my opinion the rights situation in Pakistan for those suffering with HIV and vulnerable to HIV is far from ideal. Significant efforts are needed to educate the public and reform legislation to improve the rights of marginalized segments of society that are most vulnerable to exploitation and HIV infection.

New research in Pakistan shows that, while HIV is currently found principally among injecting drug users, there is a strong possibility that it could spread to other groups and become a much greater threat to public health. The research looked at the health and social dynamics of populations most at risk from HIV – female, male and transgender sex workers and injecting drug users – in cities in the Punjab and North West Frontier Province. Despite the common belief that these populations are isolated from each other and from other groups, the new findings show that they interact socially and sexually with each other and with other populations. Thus, an increased HIV risk in one group could increase risk in other populations. High rates of sexually transmitted infections (STIs) were found in some of the groups in the survey. These groups had little knowledge of the risks of STIs or HIV and limited access to effective health care for dealing with STIs. This combination of factors compounds the risk of HIV transmission. In addition, these groups frequently face discrimination, exploitation and violence from a variety of state and non-state actors – particularly the police. Human rights abuses such as these are strongly associated with an increased risk of STIs and HIV.

In Pakistan, vulnerable groups are the focus of HIV and AIDS policies, but their human rights have received little attention and there are no specific laws to protect them. Pakistan is a signatory to a range of human rights treaties that could help protect vulnerable groups, but to date, little or no action has been taken in this regard, despite the crucial role human rights abuses play in the spread of HIV.

What steps can be taken to prevent women living with or vulnerable to HIV from falling victims to a discretionary application of such laws?

Our experience of working with vulnerable individuals during the last five years has exposed a fatal synergy between the pandemics of Violence against Women (VAW) and HIV&AIDS. Women who are HIV-positive tend to have a higher degree of exposure to violence. And women in violent situations experience heightened vulnerability to HIV transmission. Recent research shows that in communities where violence and police exploitation are endemic, there are high rates of STIs. Discrimination and abuse can push people to practice higher-risk behaviours, including making them reluctant to attend needle exchange or condom promotion programmes for fear of being identified. Moreover, the fear or threat of discrimination and humiliation deters many vulnerable people from seeking health services at all.

The following actions are recommended for implementation in the Pakistani context:

• Support   training programmes  for  uni-formed officers aimed at  preventing discrimination and violence against sex workers and injecting drug users.
• Support education programmes for sex workers which help them to protect their own human rights.
• Provide training for health care providers to reduce discrimination against sex workers and injecting drug users in service provision.
• Ratify the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT).
• Support human rights organisations to work within existing laws to protect the rights of people most vulnerable to HIV.
• Improve access to high-quality sexual health services for groups most at risk.
• Support programmes designed to  increase sex workers’ abilities to negotiate for the protection of their own human rights, especially in interactions with the police and other authorities.

Toll-free phone HELP-LINE

Contingent to receiving sustainable support from donors, we plan to launch a toll-free phone HELP-LINE in 05 local languages which aims to provide confidential, anonymous 24-hour telephone counselling, information and referral service for those infected and affected by HIV and AIDS.

Services to be Offered by the AIDS Helpline:

• Information: The Line create will create a free and easy access point for information on HIV and AIDS to any member of the public, in 05 languages, at any time of the day or night.
• Telephone Counselling: trained counsellors will offer more than mere facts to the caller. They will provide counselling to those battling to cope with all the emotional consequences of the disease and accompanied discrimination
• Referral Services: Both the Pakistani  and the Private sector have created a network of service points in urban areas to provide a range of services (including Voluntary Counselling and Testing, medical and social services) to the public. The AIDS Helpline will assist the caller to contact and use these facilities.
• Legal Advice to victims of sexual abuse / violence / discrimination: How to report abuse, where to seek help and how to file and follow up on a complaint.
• Treatment Line: A specialised service of the AIDS Helpline, the Treatment Line will be manned by Professional Nurses. They will provide accurate and anonymous telephone information and/or education on antiretroviral, TB and STI treatment. They will also provide relevant specialised medical referrals to individuals affected and infected by HIV and AIDS in Pakistan
• Domestic Violence: we plan to give free and confidential advice, information, support, signposting and referrals services to Pakistani women and children experiencing domestic abuse across and to help them cope and escape domestic abuse. Our aim is to reduce the incidences of abuse, increase physical safety and mental well- being and relieve suffering by empowering our beneficiaries and raising awareness within the community of its impact, as violence accentuates the spread of HIV and vice versa.

Submitted by Mereseini Bower on Tuesday, 03/01/2011 - 06:48.

Dear Members
At the outset, I would like to state that working in the area of HIV/AIDS is certainly new for me. I would like to highlight the following, in terms of the first question posed:

• How can multi-stakeholder partnerships (involving governments, civil society groups and those living with or vulnerable to HIV) be formed and sustained to enact rights-based legislation and repeal discriminatory laws?

Efforts should not only be about enactment of rights-based legislation but equally important is the enforcement of such laws. Recently, in one of the Pacific Island countries where we undertook a scoping mission for potential work in the area of monitoring the implementation of National HIV/AIDS Strategic plan we discovered that laws preventing employment practices that were discriminatory to people living with HIV/AIDS existed, however, the private sector were making testing for HIV/AIDS compulsory without proper counseling prior to testing and the test results actually determined whether a new recruit was employed or not. Discussions with the private sector highlighted a genuine lack of awareness of laws that protected people living with HIV/AIDS as well as the rights of an individual with regards to testing.

As a consequence, one way of approaching this is through Parliament. Parliamentarians while being politicians have come from different professions and areas of expertise and in their own daily lives have some connection to various communities in addition to their electoral constituencies.  Recognizing the role parliamentarians can play including Ministers, UNDP is now embarking on cross-practice programming, MDGs & Parliament Support where MDGs are part of an Induction Programme for Parliamentarians. The session would cover:

• all MDGs and for MDG6 focus on employment laws and HIV/AIDS in terms of highlighting the various legislations that protect those living with HIV/AIDS from any discriminatory treatment as well as laws relating to testing for HIV/AIDS;
• the role of Ministries of Health and Labour in terms of raising awareness within the private sector; and
• where relevant, Non-State Actors who work in the area of HIV/AIDS would conduct some of the sessions to increase engagement of NSAs with Parliamentarians.

With great interest in this discussion

Mereseini

In 2010, we continue to witness the continued introduction of more anti trafficking laws in countries like Malaysia and Fiji  which is anti migration and sex work and this in turn has led to the closing down of brothels. More of these laws are being planned – and are pushed through the US government’s Trafficking in Persons and Sexual Exploitation reporting process. (for more please go to http://www.sexwork.asia/

Sex workers in Asia and the Pacific have a long history of advocating for changes to the laws, rules and policies that affect female, male and transgender sex workers. Some of the reforms that sex workers demand are universal, such as removal of criminal laws against the sex industry and the proper use of law to protect sex workers from violence and crime. Some demands are country specific according to local legal systems and cultural context but there a need for legal recognition of sex work as an occupation and the recognition of sex workers as full legal persons on every ground, not only to improve the lives of sex workers but to achieve public health , social and economic goals and advance  gender and sexuality rights as well.  Moreover we assert that our agenda for legal rights has the potential to create an environment in which child sexual abuse, human trafficking and other exploitation and crime associated with criminalised commercial sex can be addressed.

In trying to meet donor and country testing targets current practices are often compulsory. National VCT  targets often lead to programes forcing sex workers into unnecessary HIV and STI tests.  (as evidenced in Laos, Thailand and India).  Results are often shared with brothel owners, outreach workers and NGOs and pre and post test counseling does not include informing sex workers of their right to refuse tests. In some countries the police or the army are also used to enforce testing and to register sex workers.

We are also noted with concern that submissions around women and HIV do not raise concern around opt out testing by pregnant women in the delivering of parent testing to child transmission. Opt out testing is not in line with human rights as there is no pre-counseling and women are often given a sheet of paper to tick of blood tests and other medical procedures without realizing the implications of having a HIV test. Furthermore, it is unethical for any government to impose testing without any guarantees that women who are tested will have full access to treatment if found positive.

Other Concerns: Gaps in the discussions at the HIV and Law Dialogue

While the issue of men and women in drug detention and prison facilities were raised, the dialogue did not address the concerns around refugees and asylum seekers who are also kept in detention camps with deplorable conditions awaiting the administrative process of obtaining a refugee status visa with no access to treatment and health care services.

There is a need to recognize the multiple risk behaviors experienced by men and women and young key affected populations and this may require targeted programmes such as peer outreach and also access to voluntary, confidential, affordable health care for all key and vulnerable population including sex workers. This includes sexual and reproductive health, TB, malaria, harm reduction, hep C and health services that meet the needs of female, male and transgender sex workers.

Economic empowerment initiatives should be provided in the context of broader empowerment and HIV prevention efforts designed with and for sex workers and similar approach for other key populations.

Thought this article for The Star newspaper in Malaysia is worth sharing as it highlights the daily injustices and discrimination faced by transgendered people in Malaysia - thank you!

Greg Gray World AIDS Campaign

Sunday February 20, 2011

Sister solidarity

By HARIATI AZIZAN
starmag@thestar.com.my

EVEN popping into the convenience store down the road can be dangerous – if you are a transgender (Mak Nyah). That was what Muna* learnt last year when she went out to get the paper one morning.

Before she realised what was happening, she was surrounded by a group of men who claimed to be religious enforcement officers.

“They ordered me to hitch up my shirt and show them my bra. I was so shocked that I could only stare at them, so one of them pushed me face down to the ground and held my hands to my back while another pushed my shirt up and tugged my bra. The others only laughed,” Muna recalls.

‘They are who they are,’ Angela Kuga Thas says of Mak Nyahs.

Although it was not the first time she had been stopped by the authorities, it was the first time she had been groped and manhandled, on the street and in daylight. The incident rattled her, and for many months after that Muna was too frightened to step out of her house.

Violent abuses against the transgender community, specifically male-to-female transsexuals, also known as Mak Nyah, appear to be rising in Malaysia in the past few years, not only at the hands of the authorities and the religious police but also the ordinary Joe on the street.

Reported cases allege that during “raids” some errant enforcement officers often ask for bribes and sexual favours from the transgender. In custody, they are usually asked to strip in front of the authorities, while their breasts are groped and they are hurled with derogatory sexual remarks.

Like Muna, many in the transgender community suffer mental anguish from the fear of discrimination, abuse and persecution. Worried that they can be arrested at any time, they feel uneasy about going out.

Former Boom Boom Room dancer Dara Othman admits that it is a stressful way to live. “For most transgender, it is down to knowing where and what time is safe. But now, it seems like anytime and everywhere is not safe.”

Hence, some people – mainly those who have been working with PT Foundation (a community-based, voluntary non-profit organisation that provides information, education and care services relating to HIV/AIDS and sexuality in Malaysia – have banded together under Justice for Sisters to highlight issues surrounding violence and persecution against this community in Malaysia, as well as provide them support and assistance.

They had met up with a group of Mak Nyah in Negeri Sembilan, heard their stories and documented some cases. S. Thilaga, one of those behind the movement, says: “At that point, many were pretty sick of the situation and wanted to change it. So we met up with a few lawyers and were told that what we can do is to challenge the law.

“Our transgender friends are up for it but they don’t have the money to challenge the law. Some can’t even make ends meet! So we thought we should do something to help them raise funds and create public awareness on the issue.”

Thilaga adds that they work closely with the transgender community and try to involve them in all their initiatives. “Ultimately, we would like them to be in the forefront.”

Last December, Justice for Sisters was launched with a fundraiser concert at the Annexe Gallery, Kuala Lumpur. Recently, another fundraiser was held at Map KL, Dutamas – its third since the launch.

The target is to raise up to RM60,000, says Thilaga, not only to help the transgender community challenge the matter in court, but also to help those who are left in dire financial straits while pursuing their legal defence.

Unfortunately, Justice for Sisters has only managed to raise slightly more than a third of that sum.

Also Malaysian

There are an estimated 30,000 plus transgenders in the country, for whom dealing with rejection from the so-called “normal” members of society is a daily preoccupation because they don’t fit in the identity box assigned by society.

Being called names and getting dirty looks are normal occurences, Thilaga says. “Some people go to the extent of throwing bags of urine at Mak Nyahs and throwing things into their house when they are not around.”

Considered a “high-risk” group, most in the transgender community are caught in a vicious and pernicious cycle of violence and persecution for being who they are.

“Many suffer rejection by their families and some are even kicked out of their homes. They are subjected to various forms of humiliation so they stop schooling. They’re rejected for jobs and loans, and struggle to find safe shelter. They’re constantly coerced in every way and face every kind of pressure to conform (usually through violence).

“Quite a number leave their homes to look for work as early as 15 years old, but they are unable to get reasonably paid employment because people are reluctant to hire them. And if they do get hired, they are often underpaid,” says Angela Kuga Thas, another key mover of the human rights campaign.

The crux of the issue is the blatant refusal to understand and appreciate Mak Nyahs for who they are, she opines.

“They exist in every single country in this world and are as diverse as the extent and level of changes that they physically seek, yet as a community, this is their identity, this is who they are.”

In Malaysia, their identity can constitute an immoral conduct offence under civil criminal law. This is mainly used against them if they are caught in a vice-related context.

Under the Syariah criminal law, however, the Muslim transgender can be persecuted for being a man who dresses like a woman (lelaki berlagak seperti perempuan). In almost every state, this offence carries a jail term of six months (or one year in some states) or a RM1,000 fine (up to a maximum of RM5,000 in one state).

These are very hefty costs considering that Mak Nyahs are being arrested once every two months, or more frequently, says Kuga Thas.

And should one be arrested for the third time, and found guilty all three times, she can be sent to prison, Thilaga says. “It is like the three strikes rule,” she notes.

According to Justice for Sisters, there is an alleged growth of arbitrary arrests of the transgender persons, especially in certain states. One transgender activist, who declines to be named, say she was even arrested for being a woman who dressed as a man.

“I was in jeans and T-shirt and looked androgynous, I guess, so they charged me with ‘menyerupai lelaki’ (dressing as a man) instead.”

However, she is used such arbitrary charges.

“Sometimes these so-called enforcement officers have no identification, nor do they follow rules and procedure. They are like polis koboi (lawless cowboy enforcement officers) . Once when I was arrested, one of them grabbed my boobs and said, ‘Your butt looks like a man but you have boobs,’” she recalls bitterly.

Make-up artist Miss A* hits out at the authority’s common tactic of stripping them down to their underwear or asking them to flash their bra to prove that they are transgender.

“We are really confused. Who do we offend with our underwear? Whose business is it what we wear under our clothes anyway? So, what do they want us to do, let everything hang out?”

Kuga Thas, who is an advocate for women’s empowerment and non-discrimination, believes those in power and in authority need to realise that no amount of coercion and violence will change the transgender community because “Mak Nyahs are Mak Nyahs.

“They are who they are, inside and outside of their homes. They are not pretending to be women and they are certainly not impersonating women. They identify as women, not men, and many often begin to feel that way between the ages of seven and 10.

Dara concurs: “People have no right to ask us to change. I always feel that God made us the way we are for a reason, so it is not up to the people to judge.”

Kuga Thas alleges that ever since they started challenging the law by having the arrested transgender plead “not guilty” to the charge against them under Syariah law, there has been a crackdown on them.

“They are targetted for arrests as soon as they step out of their homes. . This form of persecution would have received a massive amount of protest if it were to happen to other Malaysians.”

To Thilaga it is a simple human right issue. “Just because they are transgender, and a minority group, doesn’t mean that they don’t have rights. While they are visible, they are a muted group. That is why, in solidarity, we should stand with them to fight for their rights. We should be outraged that their rights are being violated because of who they are.

Kuga Thas agrees. “As Malaysians, we should be appalled that our transgenders continue to suffer violence and persecution for their identity.

“Everyone else has the freedom to be out as late and as long as they want, to dress the way they want to, to have any hairstyle they like, to meet up with friends for food and drinks, and have a social life.

“Why not the Mak Nyahs? Why shouldn’t they have this freedom? They are fellow human beings and they are fellow Malaysians,” she adds.

* Not her real name.

Those who are interested to find out more about Justice for Sisters or contribute to the cause can e-mail justiceforsisters@gmail.com.

MAKING THE LAW WORK FOR THE HIV RESPONSE

A snapshot of selected protective and punitive laws relating to HIV

Background

In the Declaration of Commitment on HIV/AIDS(2001), governments committed themselves to protecting the human rights of people living with HIV, women and members of vulnerable populations.  In the Political Declaration on HIV/AIDS (2006), they further committed to overcoming legal, regulatory or other barriers that block access to effective HIV prevention, treatment, care and support, medicines, commodities and services. Building on these commitments, UNAIDS in the Outcome Framework 2009-2011 made it a corporate priority to support countries to “remove punitive laws, policies, practices, stigma and discrimination that block effective responses to HIV”.  In order to understand better the challenges involved in this priority, UNAIDS has developed – in collaboration with key partner organisations – a “snapshot” of selected protective and punitive laws from countries across the globe that impact national responses to HIV.

http://www.unaids.org/en/media/unaids/contentassets/documents/priorities/20100728_HR_Poster_en-1.pdf

(Please see attached for the regional snapshots covering Asia and the Pacific)

Objectives

The Snapshot, titled “Making the law work for the HIV response”, aims to:

• provide at a glance the current situation in countries, territories and entities regarding certain laws that either support or hinder reaching universal access to HIV prevention, treatment, care and support;
• serve as a baseline against which progress toward an enabling legal environment can be measured;
• support positive engagement and consultations at national level among government, civil society and other stakeholders to identify the legal and policy barriers to the HIV response and devise ways to address them; and
• highlight efforts by civil society partners to monitor this important aspect of national responses to HIV – the law.

Content

The Snapshot provides data from various sources (updated as of July 2010) on the following laws:

1. Laws and regulations that protect people living with HIV against discrimination;
2. Non-discrimination laws or regulations that specify protections for vulnerable subpopulations;
3. Laws, regulations or policies that present obstacles to access to HIV prevention, treatment, care and support for vulnerable subpopulations;
4. HIV-specific restrictions on entry, stay or residence;
5. HIV-specific laws that criminalise HIV transmission or exposure;
6. Laws that criminalise same-sex sexual activities between consenting adults;
7. Laws deeming sex work to be illegal; and
8. Laws that impose compulsory treatment for people who use drugs and/or provide for death penalty for drug offences.

Key data in the Snapshot of selected protective and punitive laws relating to HIV show, among others, that:

• One hundred twenty-three (123) countries reported having laws and regulations that protect people living with HIV against discrimination.
• One hundred six (106) countries reported having laws, regulations or policies that present obstacles to access to HIV prevention, treatment, care and support for vulnerable subpopulations.
• Fifty-one (51) countries, territories and entities are reported toimpose some form of restriction on the entry, stay and residence of people living with HIV based on their HIV status.  (Please note that this number is now 48, following clarifications received from Ecuador and India, and the removal of restrictions in Ukraine in January 2011.)
• Seventy-nine (79) countries criminalise same-sex sexual relations between consenting adults. Six (6) countries apply the death penalty for offences related to same-sex sexual relations between consenting adults.

Partners

The production of the Snapshot is a partnership among the UNAIDS Secretariat and several organisations which provided data to this project as well as their logos, namely the Global Network of People living with HIV (GNP+); the International Harm Reduction Association (IHRA); the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA); and the International Planned Parenthood Federation (IPPF).

Important disclaimer

Making the Law Work for the HIV Response, A Snapshot of selected protective and punitive laws relating to HIV is a compilation of data maintained by GNP+, Human Rights Watch (HRW), IHRA, IPPF, ILGA, UNAIDS and the United States Department of State. None of the data presented in the Snapshot has been independently verified by UNAIDS against the actual text of the laws and regulations in question, nor has the data been the object of research in terms of actual implementation of the relevant law at national level.

ANY CORRECTIONS TO THE INFORMATION CONTAINED IN THE SNAPSHOT ARE WELCOME AND WILL BE REFLECTED IN ANY FUTURE UPDATE OF THE DOCUMENT. Corrections should be sent to Patrick Eba at ebap@unaids.org

We hope this document will be useful to you in your work.  Hard copies of the posters can be requested from the UNAIDS Secretariat – please contact Laetitia Hudry at hudryl@unaids.org in Geneva or Jane Wilson at wilsonj@unaids.org in Bangkok.  

Best wishes,

Susan Timberlake, Patrick Eba and Jason Sigurdson
UNAIDS Secretariat, Geneva