Can Gay Rights Be Gained via HIV?

In recent years in America, HIV has become somewhat passé. Campaigns urging sexually active people to practice safer sex by using condoms has made HIV prevention par for the course in reproductive health education, and the success of antivirus therapy techniques as an effective treatment has greatly improved management of the disease—so much so, in fact, that many young people now have the mistaken impression that HIV can be cured. But twenty-eight years ago, the face of HIV looked very different; twenty-eight years ago, twelve years post-Stonewall, HIV was a “gay disease.”

These days in India, a similar connection between HIV and gay rights has cropped up. HIV prevention has being combined with gay rights advocacy, and given that the rate of infection for men who sleep with men (MSM) is eight times higher than the infection rate for the general population, there is some element of credibility to using this strategy. In a country where 2.4 million people are known to be HIV+ and the resources to combat the spread of the disease fail to match the need for effective treatment and prevention, any extra assistance in the fight against HIV/AIDS in India might seem like a good thing. That assistance is even more prized when it targets groups identified as being at a higher risk of acquiring and transmitting HIV. Enter this summer’s abolishment of Section 377 of the Indian Penal Code.

Drafted in 1861 by British colonialist Lord Macaulay, Section 377 made “carnal intercourse against the order of nature” a punishable offense with a maximum sentence of life in prison. Since that time, Section 377 has been (ab)used by law enforcement agents to justify their harassment of not only GLBT individuals but also organizations that work with MSM, a class of people who prior to the overturning of Section 377 were inherently criminals according to the law. Since an overwhelming number of “gay rights” organizations’ work is centered on HIV, the nongovernmental organizations (NGO) being targeted by anti-gay attacks were also intended to raise awareness about the disease.

When the Naz Foundation, an NGO whose mission is to prevent the spread of HIV and provide support to those affected by the virus, brought the petition to strike down Section 377 to the Delhi High Court in 2001, it was on the grounds that the law prevented effective public health work to decrease the spread of HIV by creating a barrier to health care access for a vulnerable population at great risk of infection. (In addition to female sex workers and injection drug users, MSM are deemed a high risk group.) Despite what the media would have you believe, the issue of granting equal rights to GLBT people was a somewhat indirect outcome of the ruling, a backdoor attempt to garner legislative legitimacy for a socially marginalized group. Fortunately, in this case, it worked. Sort of.

The Naz Foundation argued that Section 377 violated fundamental rights to privacy granted by the Indian Constitution, thus hindering HIV prevention work—including interventions, advocacy, outreach, and service delivery—that was in the public interest to reverse a law that made it difficult to access high-risk sexual minorities. "The [Naz Foundation] claims to have been impelled to bring this litigation in public interest on the ground that HIV/AIDS prevention efforts were found to be severely impaired by discriminatory attitudes exhibited by state agencies towards gay community, MSM, or trans-gendered individuals, under the cover of enforcement of Section 377 IPC," reads the judges’ ruling.

The National Aids Control Organisation (NACO), a division of India’s Ministry of Health and Family Welfare who contributed to the arguments offered in the case, agreed that infected people were being driven into hiding, and that criminalizing MSM hampered efforts to curb the spread of HIV. In a statement released after the ruling, NACO Director General K. Sujatha Rao said, “[Section 377] can adversely contribute to pushing the infection underground and make risky sexual practices go unnoticed and unaddressed. Decriminalizing this high risk group has made our job easier as we will be able to reach them…making public health programs more successful [in halting the spread of HIV].”

In addition to social stigma, the abuse, detainment, extortion, and forced sex suffered by sexual minorities necessitated MSM to fulfill their desires in clandestine meetings and hurried sexual encounters, both of which limit one’s option to engage in safer sex negotiation. When you couple that with the discriminatory attitudes of the Indian public, poor access to quality health care, and a lack of accurate, comprehensive safer sex information, it’s not hard to see how this convergence puts MSM at a greater risk of getting HIV and how the annulling of Section 377 would benefit them. GLBT people are disempowered on an institutional level as well as an individual one, and the impact of that disempowerment, in turn, damages the health of the community at large.

However, when considered from this perspective, the repeal of Section 377—and subsequent celebration of gay rights in India—also comes across as bittersweet. Sure, the judges made lovely statements about discrimination against GLBT people being unconstitutional, but when the majority of the decision is framed in terms of taking steps to prevent the spread of HIV, the consideration of civil rights and social acceptance, which is where the roots for sustainable social change lie, is decreased. Public health is prioritized as more important than GLBT individuals’ legitimate right to social equality. As gay rights activist Ashok Row Kavi told the BBC, "The social stigma will remain…But the ruling will help in HIV prevention.”

The strategy of obtaining gay rights by linking MSM with HIV may function to quell the perception of GLBT people as criminals, but it fails to decrease their marginalization. In fact, it may well generate a kind of double jeopardy for GLBT people by creating the false idea that gay men are necessarily HIV+, an idea that became popular in the United States when HIV came on the scene and contributed to (particularly gay men’s) further discrimination. A marriage between gay rights and HIV is doomed to be an unequal relationship with HIV always having the upper hand. Gay rights activists would do well to consider the long-term implications of this type of arrangement.

All told, the overturning of Section 377 is, indeed, a victory for GLBT people in India. I, for one, am not convinced it is the gay rights victory the media is making it out to be, but only time will concede the results of the judicial decision. The scope of gay rights is broad and surpasses that which can be advocated for through the lens of HIV. Gay marriage, job discrimination, lesbian invisibility, protection from hate-based violence, and other issues must be fought for on their own merit. The uncritical acceptance of the connection between gay rights and HIV—two related yet vastly different issues—may inadvertently serve as another barrier GLBT people in India will have to break through in order to be seen as full participants in society—and for an emerging gay rights movement, more obstacles to struggle against are simply not what the movement needs.