Punitive and discriminatory laws continue to have grave implications on the HIV response, especially for people living with HIV and key populations, who continue to bear a disproportionate burden of the HIV epidemic. In 2018, key populations—including people who inject drugs, gay men and other men who have sex with men, transgender people, sex workers and prisoners—and their sexual partners accounted for 54% of new HIV infections globally, a 15% increase from 2017. In 75 countries, HIV non-disclosure, exposure or transmission, including unintentional transmission, is criminalised. Most countries criminalise some aspect of drug use or possession for personal use, and at least 35 countries maintain the death penalty for drug-related crimes. Eighty-four out of reporting 110 countries criminalise some aspect of sex work, including penalising the clients of sex workers or operators of brothels while not criminalising sex workers per se. Sixty-eight countries criminalise consensual same-sex conduct, punishable by the death penalty in six of those countries.

In the past few years, several strategic litigation decisions have resulted in the reform of criminal laws and the expansion of rights of people living with HIV and key populations with a positive impact on their access to HIV and health services.

UNDP, together with Accountability International and UNAIDS, organised a strategic litigation seminar in Bangkok, Thailand, from 8 – 10 October 2019 to explore these shared realities with colleagues from across the Globe. The seminar brought together 45 participants from 20 countries representing lawyers, litigants, affected communities, civil society organisations, the media, research and academic institutions and UN entities. The seminar explored the role that various stakeholders played in the design, implementation and the outcome of 21 cases mostly from the Global South where litigation was used strategically to respond to punitive and discriminatory laws that impact negatively on HIV and health responses.

Lessons shared during the seminar include –

  1. The importance of the leadership and ownership of the litigation strategy by the affected communities;
  2. the value of the best available scientific evidence;
  3. the critical role of the media in framing the issues accurately for public understanding;
  4. the pros and cons of different forums – national courts, regional courts/tribunals and international/regional human rights systems;
  5. the importance of preparing litigants for the strategic litigation journey and ensuring their rights are protected throughout the process;
  6. how to find the silver lining in a negative judgement; among others.

Participants noted the huge opportunity that strategic litigation and courts provide affected communities to challenge punitive and discriminatory laws that impact health.  They requested UNDP and its partners to strengthen the capacity of affected communities particularly in the Global South to better understand and use strategic litigation to more effectively.