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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
Sexual Behaviour, Sexuality and Gender
Identities
Sexual Behaviour
Sexuality
Gender
Preference
Gay
Same sex
Homosexuality
Male
Male
Bisexual
Opposite / Same Sex
Bisexuality
Male
Male/Female
Panthi
Opposite / Same Sex
???
Male
Male/Female
Kothi
Opposite / Same Sex
???
???
Male/Female
Male sex workers
Opposite / Same Sex
???
Male
Male/Female
Men having sex with
men
Opposite / Same Sex
???
Male
Male/Female
Transgender (Male
to female)
Opposite / Same Sex
???
Female/ Third
Gender
???
Hijra
Opposite / Same Sex
???
Hijra
???
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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.
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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
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Health Access and the Law
• HIV Bill, 2007
• Section 377; Section
268; Section 319; Section
320; ITPA
• Increased stigma; Lack of
Support System and
Discrimination
• Violence; Harassment
and low self esteem
Laws
Policies
Health
Social
Wellbeing
•Poor health service
uptake; low health
awareness; lack of
community engagement
and ignorance on health
•Recognition
•Hidden visibility; low
empowerment
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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.
HIV
Rights
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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
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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
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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
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• 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
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Service uptake for HIV
Homophobia and transphobia
Impact on outreach
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 !!!”
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STEPING UP THE PACE
Hijra Habba: Identity and Rights
Solidarity, Unity and Empowerment
Stakeholder Sensitization Events
Media Engagement for Social Change
Meeting with Social Welfare Department
“207 against 377” Campaign
Thank you!
Abhina Aher
National Programme Manager: Pehchan
India HIV/AIDS Alliance
[email protected]
allianceindia.org