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No One Left Behind Stepping up the Pace on the Removal of Punitive Laws to Address Structural Barriers Toward Health among Sexual Minority and Gender Variant Communities in India. Abhina Aher National Programme Manager: Pehchan India HIV/AIDS Alliance, New Delhi 21 July 2014

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No One Left Behind

Stepping up the Pace on the Removal of Punitive Laws to Address Structural Barriers Toward Health among Sexual Minority and Gender Variant Communities in India

Abhina Aher

National Programme Manager: Pehchan

India HIV/AIDS Alliance, New Delhi

21 July 2014

Melbourne, Australia



Laws Related to Same Sex Behaviour

  • Section 377 IPC: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.”

  • Introduced in 1861 during the British rule of India.

  • Declared unconstitutional with respect to sex between consenting adults by the Delhi High Court on 2 July 2009.

  • Judgement overturned by the Supreme Court of India on 11 December 2013, holding that amending or repealing Section 377 should be a matter left to parliament not the judiciary.

  • Supreme Court of India declared transgender to be the 'third gender'under Indian law on 15 April 2014.


Laws on Feminization for ‘Third Gender’

Section 319 IPC:Hurt: Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Section 320 IPC:Grievous Hurt; Privation of any member or joint; destruction or permanent impairment (emasculation)

Bombay Prevention of Begging Act (1959) criminalizes begging. Its aim is to remove beggars from their current illegal profession so that they may be detained, trained and eventually employed elsewhere.

Indian Trafficking Prevention Act (1956) protects immoral trafficking of minors in the sex trade

Section 268 IPC: Public Nuisance



Dead people don’t need rights !

Section 377 IPC :

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

National AIDS Control Programme in India

Increasing HIV service uptake among key populations and focus on care and support


Legal literacy among MTH

Midline Survey of Pehchān (September 2012), Key Findings Presentation I December 2012


Violence and HIV co-relation

  • 48% of the respondents had faced one of the forms of stigma and discrimination in the four areas:

  • Ever faced problem from police / law enforcement agencies (%)

  • Ever been discriminated due to your MTH behaviour/identity (%)

  • In the past year, has anyone forced or coerced you to have sexual relations against your will? (%)

  • In the past year, has anyone slapped you, punched you, hit you, or caused you any other type of physical harm (%)

  • Baseline -31%

Midline Survey of Pehchān (September 2012), Key Findings Presentation I December 2012


Stakeholder support on field

Police

Almost all MTH reported for verbal, physical and sexual violence from police

“A policeman met her and asked her to make a sex relation with him. She refused saying that I don’t do all this work. He said if you don’t make a sex relation, I will take you to the police station and beat you. She asked why. But she was taken to the police station, put charges on her and filed a report”

“Once I had some problem with my Guru so I went to the police station to lodge a complain. But they forced me and slapped me saying not to come to the police station again’.

“If we (hijras) become united and then put an application to the police, a lot of things can happen. I also want to do a lot of things”

“We are very upset by this because the police does not say anything to women who are in sex work. They will be standing right next to us but the police will shout only at us”

Lawyers/Judicial system

When we approach lawyers they don’t take our case, we can’t understand your life style, and say you look different in sari and feminine and behave different also other clients don’t come to my office so I can’t take case and reject of case. Some ask us to come later but they don’t respond and take our case.

Midline Survey of Pehchān (September 2012), Key Findings Presentation I December 2012


Impact on outreach

  • Increased un-reported violence in community

  • Constant shift in sex sites and harassment by goons and stakeholders

  • Difficulty in reaching out new population

  • Diminishing human rights of ‘right to live’

  • Stigma towards sexual minority

  • Almost 50 % untested population

  • Loss to follow up on care and support due to double stigma

  • Decrease on condom access

  • Unawareness about safe sex practices and lubes on field


What we need ?

  • Health and Human Rights go hand in hand

  • Advocacy on the community specific needs equal importance in programme design

  • Visibility and empowerment of all sexual identities and gender identities are extremely important to address specific issue related to law and human rights

  • “If you are still not dead...

  • speak up and speak loud !!!”


STEPING UP THE PACE

Hijra Habba: Identity and Rights


Solidarity, Unity and Empowerment






Thank you!

Abhina Aher

National Programme Manager: Pehchan

India HIV/AIDS Alliance

[email protected]

allianceindia.org


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