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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

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HIV/AIDS and its 'Willing Executioners': The Impact of Discrimination

http://www.murdoch.edu.au/

by

Darryl Pereira

Introduction

After the traumas of the Holocaust most of us would agree that its existence (Anti-Semitism) is not merely a Jewish problem, that it poses a challenge to everyone because a society that tolerates such prejudice is that much less a good and a just society.

The same test, I would argue, can be applied to the way in which a society deals with a new and lethal disease even when - especially when - those it strikes come largely from unpopular and distrusted groups (Denis Altman).

1.      The release of Daniel Goldhagen's book Hitler's Willing Executioners created a storm in Germany as it presented a serious challenge to Germany's favourite explanation of the Holocaust. In short, Goldhagen proposed that far from not wanting to be a part of the mass annihilation of the Jews, the perpetrators, "ordinary Germans" actually did not want to say "no" and were in fact "willing executioners" of millions of Jews.

  1. This reference to Goldhagen's book is intended to be a powerful symbolic reminder that it is necessary for all of us to think about our role in relation to the HIV/AIDS epidemic. Moreover, in reflecting on this role it will become apparent that we have all become the "willing executioners" of a virus, which remains incurable.
  2. The importance of such a label cannot be overemphasised, as the advance of AIDS has not been stopped in any country. Over 33.4 million adults and children are living with HIV/AIDS, divided relatively equally between males and females. In 199 alone, 2.5 million children and adults died of AIDS, adding to a toll which, in the previous year, had already exceeded the number of victims of World War One.
  3. Seven thousand five hundred more people become infected every day - that is, five people become infected every minute.8 Significantly, in all countries around the world those populations marginalised before the epidemic began are the ones most at risk of suffering from HIV/AIDS, as infection disproportionately affects marginalised groups in society.
  4. Therefore, this paper will focus on the relationship between marginalised groups in society and HIV/AIDS. This relationship will be discussed in terms of what is the guiding policy criterion in this area, namely minimising the personal and social impact of HIV infection and the containment and prevention of the spread of HIV/AIDS.
  5. It will be contended that these goals are unattainable as long as discrimination remains endemic in our society because discrimination adversely impacts on both these goals. In order to demonstrate this, it is necessary for this paper to proceed in two parts.
  6. Part I of this essay will consider the social context of HIV/AIDS. It is essential to discuss the social context separately, because the vulnerability of marginalised individuals towards contracting and suffering the consequences of HIV/AIDS infection, cannot be divorced from the social environment in which these individuals live and make decisions about their lives.
  7. Accordingly, it will be demonstrated that societal discrimination in all its forms magnifies the susceptibility of marginalised populations towards contracting HIV/AIDS, as well as having a pernicious impact on those affected. As such, we all have to acknowledge our complicity in this tragedy.
  8. Having established that societal discrimination intensifies the risk of HIV infection and its impact on those affected, Part II of this paper will discuss the role of the law in the context of HIV/AIDS. It will be established that the present legal response to HIV/AIDS is inadequate and deficient as it does not address the underlying problems that cause vulnerability to HIV/AIDS.
  9. However, it will be submitted that this conclusion does not necessarily entail dismissing the law as a means of achieving public health goals in the context of HIV/AIDS. Rather, it will be shown that the legal response to HIV/AIDS, though limited in what it can do in combating this epidemic, is nonetheless significant.
  10. It will be submitted that in order to maximise its significance in this regard the law needs to be used proactively by adopting a human rights approach[13] in order to address societal forces that enhance vulnerability towards HIV/AIDS.
  11. By so doing, it will be revealed that there is a real potential to use the law to assist in protecting the rights of those infected and to aid in creating a supportive social environment conducive to behavioural change amongst marginalised groups most at risk of HIV/AIDS infection. Accordingly, this envisaged role for the law would complement and promote HIV/AIDS strategy objectives and therefore must be exploited.
  12. It is the fervent hope of this paper that by analysing the deleterious impact of discrimination in the context of HIV/AIDS, that we may become more aware that the struggle against discrimination has high stakes. That, as such, we all have an obligation not only to refrain from practicing discrimination, but to also challenge it at every level. Otherwise, we risk maintaining our current role as "willing executioners."

The Social Context

The Relationship between Minority Groups and HIV/AIDS

Within every society, rich or poor, it is those who are marginalised who are most vulnerable to HIV/AIDS. (A statement by the Joint United Nations Program on HIV/AIDS).

  1. Put simply, HIV/AIDS is associated with and predominantly infects marginal populations. Across the world, marginalised communities bear the brunt of the HIV epidemic. Basically, depending on the nature of the epidemic and the legal, social and economic conditions in each country, these marginalised populations may include, women, children, those living in poverty, indigenous people, migrants, refugees, prisoners, sex workers, gay men, bisexuals and injecting drug users - that is, groups who already suffer from discrimination.
  2. Today, about 52% of all Americans living with HIV/AIDS are either African-American or Hispanic. Moreover, 87% of women with HIV/AIDS and 81% of children and adolescents with HIV/AIDS in the United States are non-whites. By contrast, blacks account for only 11.6% of the general population, and Hispanics constitute just 6.5% of the population.
  3. In Australia, more than 80% of people living with HIV/AIDS are gay men, and yet gay men are said to account for only 10% of the population. Thus, in every society it is the least powerful who are most at risk of HIV/AIDS infection.
  4. This point is best summed up by Mann and Tarantola when they observe, "The French have a simple term which says it all: HIV is now becoming a problem mainly for les exclus - the 'excluded ones' living at the margins of society."  The question, which thus presents itself, is what are the consequences of the reality that HIV/AIDS is inextricably connected with minority groups in society in terms of our response towards this association.

Consequences of the Relationship between Minority Groups and HIV/AIDS

Sometimes it appears as if the various people with HIV/AIDS have only two things in common: HIV infection and HIV-related stigma and discrimination (Theodore de Bruyn).

Uniqueness of HIV/AIDS Related Discrimination

  1. Admittedly, many, if not all, diseases lend themselves to moral interpretation. In ancient Greece, the Hippocratic texts include the classic work on "The Sacred Disease" in which the moral practice associated with epilepsy was attacked. In fact, HIV/AIDS follows epilepsy, syphilis, leprosy and mental illness in being heavily laden with powerful negative connotations. Thus, HIV/AIDS is not alone among illnesses and diseases that are marked by stigma and discrimination.
  2. However, HIV/AIDS differs from other diseases in the past in the sense that it has a predilection for minorities, men and women who have continually experienced discrimination in the most fundamental areas of human life.
  3. Consequently, HIV/AIDS related discrimination can be distinguished from other illnesses and diseases, by its association with behaviours that are already disapproved of or considered deviant, particularly homosexuality and intravenous drug use. Cancer, heart disease and diabetes amongst other medical illnesses have never suffered from such an association. Herek aptly sums up the peculiarity of HIV/AIDS related discrimination when he asserts that:

Whereas the characteristics of AIDS as an illness probably make some degree of stigma inevitable, AIDS has also been used as a symbol for expressing negative attitudes towards groups disproportionately affected by the epidemic, especially gay men and injecting drug users.

  1. A poignant reflection of the extensive discrimination which is directed towards members of minority groups who suffer from HIV/AIDS can be discerned in the fact that people with HIV infection or AIDS have been interpreted to belong to one of two categories - the "guilty majority", which consists of those marginalised populations such as gay men, who are seen to be deserving of their disease because of their lifestyle choices, and the "innocent majority" of hemophiliacs or transfusion cases.
  2. This is illustrated in a survey of attitudes towards people who contracted HIV and AIDS undertaken by the National Centre for Epidemiology and Population Health at the Australian National University, where it was found that high levels of sympathy existed for people who contracted HIV through blood transfusions (97%), but low levels for homosexuals (24%).
  3. Therefore, a consequence of the association of HIV/AIDS and marginalised groups in society is it serves to amplify the discrimination associated with this disease to the extent that people infected are blamed for their disease. Significantly, this uniqueness of HIV/AIDS related discrimination has a decisive impact on those marginalised people who are infected with HIV/AIDS.

Discrimination as Considerably Increasing the Personal Costs of Infection

  1. In short, those members of marginalised groups in society who are infected with HIV/AIDS suffer not only from the burden of having a fatal disease but also from the additional burden of being an oppressed group in society.
  2. For example, the fact is that the predominantly negative attitudes in society toward homosexuality has intensified and extended with the onset of HIV/AIDS. Put simply, this has the consequence of dramatically increasing the personal cost of infection for gay men living with HIV/AIDS. This is most aptly summed up by a Gay man living in Newfoundland who commented:

I have always hidden my homosexual tendencies from my family and friends. To now come out and say that I am gay and that I have AIDS, it's a double stigma. Unfortunately, the stigma is attached to you at the time you need support, you are afraid of dying, and you are hurting pretty badly.

  1. Indeed, the discrimination which accompanies gay men living with HIV/AIDS is also flagrant and explicit. For instance, many health care workers and doctors refuse to provide care or avoid patients who are homosexual. The repercussions of this explicit discrimination is that many gay men living with HIV/AIDS do not seek (or may not seek early enough) the treatment they require. This distressing reality is made worse when one considers that treatments such as protease inhibitors have been proven to dramatically improve the health status of many people with HIV.
  2. Similarly, discrimination negatively impacts on the ability of women to cope with HIV/AIDS. Basically, in society, discriminatory assumptions exist in relation to women with HIV/AIDS, whereby a woman who has HIV infection is presumed to have been infected as a result of having multiple partners or having engaged in prostitution. Therefore, to have caught HIV/AIDS is seen as symbolic of them being "promiscuous" and "dirty."
  3. In fact, an Australian study of the experiences of women with HIV/AIDS discovered that a substantial number of the women interviewed indicated that their doctors were trying to convince them to "admit" that they had unprotected sex with men, had worked as a sex worker or shared needles. It further found that an outcome of this was that many women with HIV/AIDS felt like "victims", which made them use health services less and not ask for or demand what they really required, be it information, referrals, care, or compassion.
  4. As this outcome stems from our discriminatory attitudes and assumptions it should be viewed as what it is, "the deepest violation of another person's humanity", namely the right to "live - or die - in reasonable comfort and dignity."
  5. Therefore, it is evident that discrimination discourages members of marginalised groups living with HIV/AIDS from seeking testing and counselling, makes it extra hard for an infected person to share the news with a partner and benefit from their support, and keeps people from accessing care, even where care is available. Thus, those who are already marginalised and excluded in society are pushed even further from the support of human society as a result of HIV/AIDS infection.
  6. Accordingly, it can be safely asserted that discrimination operates on a variety of levels to severely hinder the ability of marginalised people who suffer from HIV/AIDS from coping with their illness. Indeed, the fact that marginalised groups living with HIV/AIDS as a result of discrimination are more likely to forego valuable social support and medical treatments that could increase their longevity and improve their quality of life, graphically illustrates that we have become their "willing executioners."
  7. It is clearly apparent as such that a major goal of HIV/AIDS strategies, of minimising the personal and social impact of HIV/AIDS on those infected has been severely impaired by the impact of discrimination. This, in turn, raises the question of whether the goal of curbing the spread of HIV/AIDS transmission is similarly hindered by discrimination. This will now be examined.

The Need to Examine HIV/AIDS in Light of Contextual Determinants

  1. A common argument presented as to why certain groups disproportionately suffer from HIV/AIDS is that they engage in certain activities which are fraught with danger, certain high "risk-activities." This is linked to the idea commented on before, that HIV/AIDS is a punishment for life-style choices of those at greatest risk of being infected by it, such as gay men and intravenous drug users.
  2. Granted, for the moment, that the assertion that marginalised groups are most vulnerable to HIV/AIDS infection as a result of their high risk behaviour is correct, it would remain that the discrimination they suffer reduces the means of combating such "risk-taking" activities. Basically, to change "risk-taking" activities by certain groups requires changing their
  3. behavioural patterns and maintaining such changes, which entails "high-risk" minority groups coming forward and participating in education. Yet, as has been shown the discrimination resulting from irrational prejudices directed at people perceived as members of risk groups acts as a disincentive for such individuals to cooperate in initiatives aimed at halting the spread of the virus.
  4. Therefore, as Justice Michael Kirby points out:

Those capable of transmitting HIV or most at risk of acquiring it must be educated without feeling threatened, and as such a cooperative approach will only be achieved if those seeking HIV testing, education, treatment or counselling are not at risk of being treated as criminals, or subject to widespread discrimination.

  1. More importantly, the reality which needs to be acknowledged is that personal vulnerability to HIV/AIDS infection stems significantly from societal vulnerability. Social vulnerability refers to contextual factors that define and constrain personal vulnerability.
  2. The extreme individualism of the behaviouralist position outlined above must be rejected as it ignores the fact that contextual factors contribute to social vulnerability to HIV/AIDS infection. In fact, the World Health Organisation now conceptualises health as being a product not only of individual actions but also of actions, which take place in the social contexts, and environments in which individual behaviours occur.
  3. The simple fact is that implicit in the idea that there are "choices" which individuals have and make about health is a product of "individual cognitive or rational decision-making."[53] Yet, "choices" are influenced by how other individuals think and behave and the social factors exogenous to individuals themselves which constrain or encourage the degree of "choice" that individuals can exercise.[54]
  4. Accordingly, "factors other than the constituents of personal psychology make-up are important in our understanding of exposure to HIV infection."[55] Therefore, to attempt to understand personal vulnerability to HIV/AIDS infection without addressing the contextual factors related to societal vulnerability is to misconstrue and depreciate the nature of the problem.
  5. Consequently, this raises the idea that in terms of the spread of HIV/AIDS amongst minority groups in society it may not be their behaviour which is the central problem but rather our behaviour and attitudes which needs urgent modification. Indeed, it is a contention of this paper that the societal context in which vulnerability to HIV/AIDS is embedded is significantly shaped by the discrimination which marginalised groups suffer.

The Problem in Perspective: Their Behaviour or Ours?

It is high time that humankind became aware of the danger lying in store before it is too late, that in this struggle discrimination and prejudice are the allies of death as represented by AIDS. (Mr. Luis Varela Quiros, Special Rapporteur for the United Nations).[56]

  1. In order to test the assertion that factors which shape a risk environment are considerably influenced by the discrimination which marginalised groups suffer, it is desirable to look at whether there is any clear link between discrimination against gay men and gay youth and their vulnerability to contracting HIV/AIDS.

Discrimination as Amplifying Gay Men’s [57] Vulnerability towards HIV/AIDS Infection

  1. Unlike, many other countries in the world the overwhelming pool of HIV/AIDS infection in Australia remains among homosexually active men. In the Australian HIV Surveillance Report it was found that homosexual men in the period cumulative to 31 December 1998 constituted 83.3% of all cases.[58]
  2. Similarly, most reported diagnoses of newly acquired HIV infection remains predominantly in men who have sex with men. The principal mode of transmission among gay men is "unprotected" anal intercourse as shown by epidemiological studies.[59] This illustrates that behavioural change remains the key aspect of the prevention of the spread of HIV/AIDS amongst gay men.[60]
  3. However, the reality is that the social environment in which gay men live, far from being conducive or supportive to changing and sustaining behavioural modification amongst gay men, adversely impacts on the ability of gay men to lead healthy lives.
  4. To be gay in our society is to be defined as "sick", "deviant", and "abnormal" as society assumes heterosexuality to be "normal"[61] and homosexuality to be an anomaly. This reality is reflected in a recent national telephone survey of gay and homosexually active men (Project MaleCall 96[62] which found that 40.6% of those men sampled reported experiencing homophobic or HIV related instances of verbal abuse, harassment, physical treatment or intimidation.[63] This provides clear evidence of the intensely homophobic nature of our society where to be gay means facing extensive and pervasive discrimination.
  5. In the context of HIV/AIDS such a hostile environment has devastating consequences in terms of preventing the spread of HIV/AIDS amongst gay men as it produces the result that many gay men suffer from low self-esteem. In the words of one gay man:

If I live in a world that is homophobic and heterosexist, which does its very best to isolate me from my peers and keep me from any knowledge or acknowledgment that my gayness is valid, or even exists outside of my head and heart, then of course I am going to feel worthless and have low self esteem.[64]

  1. This outcome is consequential to say the least, as basically, long-term ongoing changes in sexual behaviour, such as the introduction and continued use of condoms, are an adjunct to positive self-esteem.[65] The impact of low self-esteem in this regard is best reflected in studies showing that gay men today generally have highly accurate knowledge about HIV/AIDS transmission, but still engage in risky sexual activities.[66]
  2. This seemingly, contradictory fact can be reconciled when one puts it into a context in which gay men suffer pervasive discrimination and consequent feelings of low self-esteem and self-confidence and accordingly do not have the ability to make and effectuate choices necessary for health in spite of their knowledge.[67]
  3. Therefore, the stark reality is that HIV is transmitted amongst men who have sex with men not just because of unsafe sex but rather because:

homosexual identity is not acknowledged, permitted, and supported as a natural development of human ...personality...which inevitably leads to negative self-esteem and lack of negotiating skills and consequently to a heightened vulnerability to HIV infection amongst gay men.[68]

Young Gay Men

  1. An increasingly tragic reality in Australia is that new infections of HIV/AIDS are expanding at a significant level among young gay men.[69] One recent, cautious study in America makes the horrifying prediction that about a third of sexually active gay men in America will be HIV-positive or dead by the time they reach 30.[70]
  2. Indeed, the Report of the Evaluation of the National HIV/AIDS Strategy in 1992 found that new infections were occurring amongst young gay men principally because of their failure to practice and maintain safe sex habits.[71] Many would argue, however, that this is indicative of the idiocy and immoral nature of young gay men. However, such a view essentially misses the point that our discrimination against gay men creates and sustains social conditions that foster HIV/AIDS transmission.[72]
  3. The hostile environment which gay men encounter is magnified for young gay men.[73] Indeed, what makes gay youth different from other "minority" groups is that they do not, for the most part, grow up with people like themselves.[74] The well-established, grave consequences[75] of such a negative environment for young gay men include low self-esteem and feelings of worthlessness, which adversely impacts on their ability to protect themselves from HIV/AIDS infection.[76]
  4. Indeed, the dangerous consequences are also clearly evidenced by the reality that a disproportionate number of gay youth end up on the street where the risk of drug abuse, sexual abuse and HIV infection increases dramatically.[77]
  5. Furthermore, many gay youth in growing up in an environment in which they are very aware of the discrimination and possible violence they will face if their sexual orientation is discovered,[78] attempt to hide their sexuality.[79] In the words of a gay 16 year old youth:

We can be invisible, and are assumed to be part of the heterosexual majority until we blatantly and publicly declare otherwise. Some of you might think this to be a boon - I can just pretend to be straight and avoid all this discomfort. I tried for a while...to try to prove to myself that I could be straight if only I tried hard enough. But instead of being accepted into the mainstream, I lost my self-respect...This> instituted a downward spiral of self-hatred and anger motivated by homophobia. I hated myself for being what seemed to be everyone's worse nightmare, a homosexual...I'm not telling you this to make you feel sorry for me...but because I want to give you an idea of what it is like to be ostracised from society because I don't conform to its standard of normal. [80]

  1. In short, the consequences of concealment can be shattering. For example, it can result in the homosexual activity of gay youths taking place anonymously, such as at "beats" or gay and lesbian bars and nightclubs.[81] Being forced into the adult "scene" in this way augments the vulnerability of gay youth to HIV/AIDS infection.[82]
  2. One of the strongest examples of discrimination on the basis of sexuality as negatively impacting on the lives of gay youth is the lack of basic information about gay issues in schools, including a lack of information about safe sex issues relevant to gay youth.[83]
  3. This is, in spite of the fact that it is proven that education on gay issues and safer sex[84] is the type of knowledge and support required for safe sex practices to be a viable option for gay youth.[85] One young gay man was reported as saying, "I was waiting and expecting to hear something about homosexuality, safe sex and different things in sex education. Maybe some information that could help me. But I got nothing."[86]
  4. Indeed, the government is especially culpable in this regard. This is most emphatically highlighted in the banning of a safe sex campaign directed to young gay men by the Queensland Health Minister, Mike Horan, because Mr. Horan considered the material to be "promoting"[87] a homosexual lifestyle.[88]
  5. In the context, of HIV/AIDS, this banning only serves to create and maintain the special vulnerability of gay youth to HIV infection, as it increases the lack of information and positive education about safe sex for gay youth.[89] As the Victorian AIDS Council President at the time, Joseph O'Reilly, stated, "Political decisions are overriding public health concerns, and in that process, the Minister is putting lives at risk."[90]
  6. To sum up, anyone who believes they can explore the experience of gay men and gay youth, "being at risk for HIV disease without considering the experience of being gay is hopelessly mistaken."[91] This is the case because discrimination against gay men and gay youth serves to intensify their risk of HIV/AIDS infection.
  7. However, it would be wrong to conclude that discrimination only enhances the vulnerability of gay men and gay youth towards HIV/AIDS infliction as it produces the same result for other marginalised groups in society. In order to conclusively establish this point the special vulnerability of women towards HIV/AIDS will now be examined below.

Women

  1. In short, the operation of discrimination that suppresses people's vital health interests can be based as much on economic and gender inequality as it can be on homophobic discrimination. [92] Women are vulnerable to HIV infection because as a class they suffer systematic discrimination. [93]
  2. A women's safety in sexual relations is compromised, by, for example, gender norms which assert that women should be submissive and passive as this impedes on their ability to negotiate safe sex with their partners.[94] For example, a Rhode Island Rape Center study of 1,700 sixth-and ninth-graders found that 65% of boys and 57% of girls believed it acceptable for a male to force a female to have sex if they've been dating for six months.[95]
  3. Furthermore, women who do attempt to negotiate safer sex with male partners risk physical abuse. In most societies women continue to be subject to indiscriminate violence, particularly of a sexual character, which exposes them to the risk of contracting HIV/AIDS as a consequence of dangerous behaviour patterns and practices on the part of their husbands or partners.[96]
  4. Indeed, studies have shown that monogamous married women in East Africa are largely contracting AIDS, not because of the inaccessibility of condoms or lack of education with respect to HIV but because of their inability to control their husbands' sexual conduct and to refuse unwanted intercourse.[97] Thus, exhorting women to "just say no" or to engage in safer sex practices does not assist women who are often vulnerable in marital and sexual relationships and consequently do not have the ability to exercise control over their sexual health.[98]
  5. Thus, as stated by Peter Piot, head of the Joint United Nations Program on HIV/AIDS (UNAIDS),

"social, sexual and economic[99] discrimination experienced by women, though always egregious, now threatens their lives."[100]

Challenging Discrimination: An Option or an Obligation?

First the Nazis went after the Jews, but I was not a Jew, so I did not object. Then they went after the Catholics but I was not a Catholic, so I did not object. Then they went after the Trade-Unionists, but I was not a Trade-Unionist, so I did not object. Then they came after me, and there was no one left to object (Martin Niemoller, a man who lived during Hitler's rule in Germany).[101]

  1. It has been shown that discrimination has a profound impact on how a given individual can protect him/herself from HIV infection or maintain his/her health and welfare while living with HIV/AIDS.[102] Significantly, much of this discrimination is propagated at an individual and at a community level as a result, for example, of our homophobic attitudes.
  2. Accordingly, it is submitted that in practicing discrimination and in not accepting our responsibility for removing discrimination then in the context of HIV/AIDS we have effectively become the "willing executioners" of a deadly virus.
  3. However, critics of the label "willing executioners" may contend that such a tag may be applicable to those who practice discrimination but is inappropriate for those that do not. Yet, such a criticism ignores and essentially misses the point that HIV/AIDS has emphatically highlighted that we all have a responsibility for removing discrimination.
  4. This is the case because the reality is that silence on issues of discrimination has a similar effect to blatant forms of discrimination[103] in terms of accentuating the risk of infection for minority groups and maintaining the pernicious impact which discrimination has on those people living with HIV/AIDS.[104] Christopher Kendall, for example, writes that "silence" in relation to homosexual issues or the mere failure to raise this issue, is not necessarily homophobic, in that no hatred or fear of lesbians and gay men is expressly stated, but it nonetheless reinforces the view that only heterosexuals exist or matter.[105]
  5. This point highlights that although our silence on issues of discrimination may not be deliberately exclusionary, its effect on those who have been marginalised is to ensure that they remain marginalised[106] and in the context of HIV/AIDS therefore sustains the specific vulnerability of marginalised groups towards infection. The Martin Niemoller quote, given above, aptly sums up the problem of being silent and not being responsive to issues of discrimination, as his silence led to an environment which effectively legitimised and made acceptable the horrific violence undertaken by the Nazis earlier this century.
  6. Accordingly, unless we challenge discrimination we retain and uphold our present role of being "willing executioners" as the consequential impact of discrimination in the context of HIV/AIDS makes it an inescapable fact that we cannot take a dispassionate or indifferent view of discrimination.
  7. Indeed, privileged members of society in this regard have a greater responsibility to ensure that the voices of those people denied expression are heard as they are in the best position in which to combat discrimination.[107]
  8. To my mind, anyone who stands by the values of justice and respect for dignity of all persons must take an active part in the fight against HIV/AIDS by challenging discrimination, for in the words of Kofi Annan, "AIDS is everybody's business."[108] This necessity is most eloquently summed by Martin Luther King who once proclaimed that, "We shall have to repent in this generation, not so much for the evil deeds of wicked people, but for the appalling silence of the good people."[109]
  9. Naturally, the government also has an obligation to change their response to the HIV/AIDS epidemic as will now be discussed.

The Necessity of Changing Government Inaction to Government Action

Was I sleeping, while the others suffered? Am I sleeping now? Tomorrow, when I wake, or think I do, what shall I say of today? ...At me too someone is looking, of me too someone is saying, he is sleeping, he knows nothing, let him sleep on. I can't go on! (Samuel Beckett's Waiting for Godot).[110]

  1. Put simply, as HIV/AIDS has primarily affected marginalised populations, such as gay men, governments have been less committed to forcefully fighting the rampant discrimination which is associated with this infection. For example, President Ronald Reagan made his first public mention of "AIDS" in a speech delivered on 31 May 1987, nearly seven years after the illness had first appeared.[111]
  2. In contrast, only two days after the outbreak of Legionnaire's Disease had been announced, the President of the United States had been photographed holding an emergency meeting in the Oval Office to deal with the outbreak.[112] More telling, is the reality that governments only began to devote resources towards HIV/AIDS and take the disease seriously when it was realised that the general population was also at risk and not just gay men.
  3. Indeed, as HIV/AIDS still primarily affects marginalised populations, governments remain less committed to fighting the disease or the extensive discrimination associated with the disease.[113] This is most clearly portrayed in the denial and even banning of certain gay education material by the government in recent times[114] in spite of the established reality that access to education concerning HIV/AIDS issues is widely recognised as an essential "life-saving" component of effective prevention and care programs.[115]
  4. Hence, in reference to the Samuel Beckett quote, this should be the question posed to the state: "Are you sleeping? Can you go on doing nothing?"[116] The more pertinent question as such becomes what the state should do in relation to the HIV/AIDS epidemic.
  5. It has been demonstrated that a person's likelihood of becoming HIV-infected and receiving adequate care is largely influenced by the environment in which they live, so a narrow traditional public health approach focused on the individual and disconnected from a societal context will be of minimal effectiveness.[117] When, HIV/AIDS is viewed in its social dimensions, as it must be, it becomes apparent that it is a phenomenon which is inextricably linked to human rights.[118]
  6. In short, violations of human rights, especially systemic discrimination against marginalised groups in society, "disempowers these groups to avoid infection and to cope with HIV/AIDS, if affected by it."[119] For example, the violation of the right to education and information about HIV for gay youth creates an environment of increased risk for their health. Thus, as stated by UNAIDS, governments must adopt a human rights approach in combating this epidemic, otherwise the, "alternative is the avoidable infection and early deaths of millions of young people."[120]
  7. By adopting a human rights approach the state would foster a supportive and enabling environment making health choices possible or easier for marginalised individuals[121] and thereby shed themselves of the label of "willing executioners."

The Legal Context

Interdependence of Human and the Law

The institution of basic human rights may well decide who wins the battle between HIV and humans. If this is a championship fight, we are in the tenth round already and well behind on points. Those who trivialise human rights are helping to fuel this epidemic. (J.M.Dwyer).[122]

  1. As Peter Piot stresses, the human rights of marginalised groups have always been imperfectly realised with tragic consequences.[123] But the presence of HIV means "failure to protect them becomes even more life-threatening."[124] Only with such protection will these people enjoy and have the right to an environment supportive of behaviour change. Safeguarding human rights is as such, "essentiality, not a luxury."[125]
  2. Since laws regulate the conduct between the State and the individual and between individuals, they provide an essential framework for the observance of human rights.[126] In fact, it has been generally accepted, that a coercive legal response directed at those most likely to suffer from HIV/AIDS has, by and large, not been adhered to by Australian governments.
  3. This response from the law stems from the fact that it is now being increasingly acknowledged that coercive laws, far from encouraging conduct that will reduce the spread of HIV, "may actively impede prevention efforts by alienating those people who are most at risk of HIV infection and making it less likely that they will cooperate in prevention measures."[127]
  4. It is imperative as such that the law introduces measures that protect the rights of people most at risk of infection. One way in which it is claimed that this has been done in Australia is through the proliferation of anti-discrimination legislation. The Disability Discrimination Act 1992 (Cth) makes it illegal to discriminate on the basis of a person's HIV/AIDS status. Thus, the question which needs to be addressed, is whether anti-discrimination legislation provides adequate or effective protection against discrimination associated with HIV/AIDS.

Anti-Discrimination Legislation

  1. Although describing anti-discrimination legislation as tokenistic has become something of a cliché, "tokenism" does nevertheless most aptly encapsulate its essence (Margaret Thornton).[128]
  2. In spite, of the high levels of discrimination against people living with HIV/AIDS and the existence of anti-discrimination laws which provide mechanisms for individuals to seek redress, few complaints of HIV/AIDS discrimination are lodged. In the period 1997-98 only a paltry 0.5% of all complaints received by the New South Wales Anti-Discrimination Board were on the grounds of HIV/AIDS discrimination.[129]
  3. This was the lowest recorded figure out of all possible grounds of complaints received by the NSW Anti-Discrimination Board in this period. In fact, the low level of complaints is also reflected at Commonwealth level, illustrated in the fact that only two disability complaints for HIV/AIDS related discrimination were received by the Human Rights And Equal Opportunity Commission (HREOC) in 1997-1998.[130]
  4. Indeed, the inquiry by the Anti-Discrimination Board in New South Wales into HIV/AIDS related discrimination reached the conclusion that considering that HIV/AIDS related discrimination is both extensive and pervasive, the number of complaints received were, "nowhere near representative of the extent of discrimination experienced by people infected with HIV or ill with AIDS."[131]
  5. Thus, the low levels of complaints is suggestive, given the high incidence of HIV/AIDS related discrimination as documented in Part I of this paper, that anti-discrimination laws are not a useful tool for protecting the human rights of marginalised groups in society. Hence, it is desirable now to consider the efficacy of anti-discrimination legislation.

Existing Laws

  1. The Disability Discrimination Act 1992 (Cth) prohibits discrimination on the ground of disability in employment, education, accommodation and the provision of goods and services. Disability includes the presence of organisms, causing, or capable of causing disease or illness.[132]  HIV/AIDS clearly falls within this definition.
  2. All States and Territories, with the exception of Tasmania, have laws prohibiting discrimination on the ground of impairment or disability in employment, education, accommodation and the provision of goods and services.
  3. Tasmania's Anti-Discrimination Bill has been passed, but not proclaimed. Consequently, at present, the only available anti-discrimination remedies for people living with HIV in Tasmania are those provided under the Commonwealth Disability Discrimination Act.[133] However, HREOC has fundamental problems of its own which acts as a disincentive to the lodging of a complaint.

Problems with Enforceablity

  1. In essence, the major problem with making a complaint under Commonwealth legislation is that determinants made by the Human Rights and Equal Opportunity Commission are expressly stated not to be binding on the parties. The High Court in Brandy v Human Rights and Equal Opportunity Commission (HREOC)[134] made this clear when it ruled that HREOC does not have the power to make enforceable decisions in discrimination cases except where the Commonwealth Government is the alleged discriminator.
  2. This means in order to obtain an enforceable decision against a respondent, under Commonwealth anti-discrimination laws, the case must be heard in the first instance by HREOC, and then de novo by the Federal Court.[135] Naturally, this deters many potential applicants from lodging complaints.
  3. This is reflected in a policy paper commissioned by the Legal Working Group of the Australian National Council on AIDS and Related Diseases (ANCARD). All Disability Discrimination Law Commissioners interviewed cited the current situation[136] where complainants have to consider the prospects of two hearings, as the most significant disincentive to lodging a complaint under the DDA in the first instance.[137]
  4. Therefore, there are significant barriers to the use of remedies under Commonwealth anti-discrimination laws[138] and this is consequential as people in the jurisdictions of Tasmania and South Australia depend on the federal legislation for redress to HIV/AIDS related discrimination. [139]
  5. Sadly, problems of enforceability are not limited to Commonwealth legislation, but it is also a problem which pervades state anti-discrimination legislation. In short, Western Australia, New South Wales and Victoria are the only states where representative complaints can be lodged.[140] The importance of representative complaints being lodged cannot be overlooked as the energy and expense required and scope for publicity may deter individuals suffering from HIV/AIDS, but not interested organisations from seeking redress for discrimination.[141]
  6. In addition, the reality that complainants with HIV/AIDS may be ill or dying before the case is finalised means that those jurisdictions which do not have provisions for representative complaints on behalf of an aggrieved individual effectively allow substantial levels of discrimination to go unchecked.[142]
  7. Hence, anti-discrimination legislation is flawed in the sense that too much emphasis is placed upon an individual-complaint process and this is especially problematic in the case of HIV/AIDS.[143]

Impact of Delays and Limited Range of Remedies

  1. Exacerbating the relatively weak enforcement structure of anti-discrimination legislation is that many people discriminated against do not bring proceedings under the relevant legislation because of the delays involved and the limited range of remedies available. Delays occur allocating complaints to investigating officers, and there are often extended delays at the assessment and investigation phases.[144]
  2. If a complaint is not settled, there are considerable delays associated with referral and a formal hearing.[145] Yet, the need for speedy and effective administrative remedies is especially important in the context of HIV/AIDS because the complainant may be ill or dying and as such will be deterred by possible delays from pursuing legal action.[146] This is reflected in a comment by, Paul Garde, a representative of the HIV/AIDS Legal Centre (NSW) who stated:

I am finding that less clients are lodging complaints...I have to tell my clients that there will be a nine month delay before the Anti-Discrimination Board will do anything. So that's causing people to think twice about even bothering to lodge a complaint.[147]

  1. The problem of delays in anti-discrimination legislation is most graphically illustrated in the fact that the withdrawal rate of complaints reported by the New South Wales Anti-Discrimination Board was as high as 50 per cent in 1997-98.[148]
  2. Further limiting anti-discrimination legislation is the relatively modest remedies that tribunals provide. This is highlighted in the fact that punitive damages are unavailable under anti-discrimination legislation in cases of intentional discrimination.[149] Accordingly, many possible complainants will not pursue relief, as they do not see it as worth the trouble, given the limited range of remedies available under anti-discrimination legislation.

Limited Scope of Anti-Discrimination Legislation

  1. The scope of anti-discrimination legislation slightly varies from state to state. Broadly speaking, the areas in which discrimination is made unlawful by State legislation, are generally, employment, education, accommodation, the provision of goods and services; qualifying bodies, and professional, trade, employer or other organisations; sport; trade unions; and clubs or associations.
  2. However, what is common to all jurisdictions is the circumscribed scope of anti-discrimination legislation in the sense that it only offers protection in the areas outlined above and as such does not extend to discrimination that occurs outside these spheres.[150]
  3. Moreover, the exceptions within the areas covered by anti-discrimination legislation considerably limit the ambit of anti-discrimination legislation.[151] This is clearly portrayed in the fact that of the 72 sections of the Victorian Equal Opportunity Act which prohibit discrimination, 52 contain exemptions.[152]
  4. Indeed, the restricted scope of disability discrimination acts in all states is best illustrated in the fact that, unlike such factors as race or gender, an employer is not absolutely barred from taking into account a person's handicap but is only required to make reasonable accommodations for the handicap.[153] This means that this exception can be argued by an employer by way of defence to a complaint under HIV/AIDS grounds but not in relation to other grounds such as sex or race.[154]
  5. The New South Wales Anti-Discrimination Act further permits employers to discriminate against individuals who, with reasonable accommodation, cannot perform or are presumed to be incapable of performing all job tasks because of physical impairment based on their subjective assessments.[155] In the case of Jamal v Secretary, Department of Health[156] Samuels J.A. stated in relation to this exception of the NSW Act[157] that in ascertaining the perceptions of the employer, "the reasonableness or otherwise of the employer's view is irrelevant save as a means of assessing whether the view asserted was honestly held."[158]
  6. This view is contrary to the reality that if occupational health and safety procedures were properly implemented and followed, then the risk of becoming infected in the high-risk employment areas would become negligible.[159] Such an exemption, therefore, enables irrational views of uninformed members of the public based on fear as to modes of transmission of HIV to be propagated, and ultimately promoted in the workplace and other contexts.[160] The effect of this loophole is amplified in the case of asymptomatic HIV-positive persons who are only held back by community's stereotyped prejudice and attitudes in attempting to participate fully in the community.[161]
  7. Consequently, a number of different exceptions not only significantly curtail the scope of the HIV/AIDS grounds in the different statutes but also serve to justify discrimination in certain circumstances.

  ☼

Adequacy of Using a Disability Model to Cover HIV/AIDS Related Discrimination

  1. In order to include HIV/AIDS discrimination into existing anti-discrimination legislation disability discrimination laws were revised to include HIV/AIDS into their definitions.
  2. However, the fundamental problem with using a disability model to cover HIV/AIDS is that the disability model is essentially based on a medical rather than a social model of disability.[162] The problem in this regard is it raises the issue of whether a person, who is HIV positive, but has not yet progressed to AIDS is covered under disability legislation. This is an issue because the reality is that asymptomatic infected individuals[163] appear as healthy and able-bodied as the uninfected, or develop symptoms no worse than a heavy cold.[164]
  3. For example, physical impairment is defined in the NSW Anti-Discrimination Act 1977 as, "any defect or disturbance in the normal structure and functioning of the person's body."[165] Accordingly, one Australian commentator has suggested that seropositivity may not be protected under NSW legislation for the formation of antibodies to a virus is a normal bodily process and that similarly, a healthy person "who is antibody positive does not have a bodily malfunction" or a "total or partial loss of any function of the body."[166]
  4. However, this conclusion seems unlikely given the judgment in Kitt v Minister for Tourism[167] where it was stated that the "concept that the community attitudes to the person's impairment might be responsible for the limitation in life activities is expressly imported into the definition of physically handicapped person." Whilst, the decision in Kitt's[168] case may go some way towards overcoming the difficulties of interpretation and definition of impairment in such circumstances, it remains that these difficulties are not conclusively resolved.[169]
  5. Indeed, in some jurisdictions there remains considerable doubt as to whether the status of being asymptomatic HIV positive is covered by the definition of physical impairment in disability legislation. The South Australian Act defines physical impairment as a "partial loss in the body's functioning" and "a malfunction of a bodily function."[170] The focus as such seems more clearly on the degradation of the body.[171]
  6. Hence, there is some doubt whether the South-Australian anti-discrimination law covers asymptomatic infection and at present there is no answer to this issue, as it has not been the subject of any judicial determinations thus far. The uncertainties about the inclusion of HIV infection within the definition of handicap in the South Australian Act and, to a lesser extent, the New South Wales Act, as such problematises the protection which disability discrimination acts offer infected individuals.
  7. Overall, it is evident that anti-discrimination legislation in Australia is largely ineffectual to the needs of the people whom the grounds purports to protect. This highlights that the problems associated with and which stem from HIV/AIDS related discrimination cannot be adequately addressed through legislative action only.
  8. Indeed, the lack of effectiveness of anti-discrimination legislation raises the further question as to whether the law has or should have any role in the HIV/AIDS epidemic. Such a question necessarily entails a discussion of the application of the law in relation to cases involving applicants with HIV/AIDS.

Artificiality of Legal Reasoning

Let the shameful walls of exclusion finally come tumbling down (Thomas Jefferson in a letter to Samuel Kercheval).[172]

  1. In IW v The City of Perth & Ors[173] the High Court held that the Council of the City of Perth did not discriminate when it refused a planning permit for a drop-in centre for people with HIV/AIDS. The Council had justified refusing the planning permit on the basis of assumptions such as most people who would use this centre would be drug users.[174]
  2. The majority in this case ruled that the Disability Discrimination Act did not apply to the Council as such legislation is limited to the providing of services. They held that as wide as the definition of "services" is, it is not capable of including a refusal to exercise the statutory discretion to approve the use of premises.[175]
  3. Yet, as Justice Kirby argued in his dissenting judgment, this view means that we, "accept that the Act on the one hand acknowledges the way in which people discriminate undesirably on the ground of stereotyped characteristics whilst withholding a remedy where much discrimination is shown."[176] Thus, far from correcting the misconceptions espoused by the Council of the City of Perth the majority of High Court judges merely reinforced such views by dismissing the appeal.
  4. This decision as such brings forward the question of whether anti-discrimination legislation is really there to eradicate discrimination as the Council in effect were allowed to practice discrimination, and on the basis of a technicality could not be forced to correct such behaviour.
  5. What is more disturbing about this result is that every complainant with the exception of one, had died by the time litigation of this case reached the High Court[177] and yet the decision remained unaltered. This forcefully illustrates that the law rather than assisting in eradicating discrimination can be plausibly argued to be actually perpetuating it.
  6. Indeed, such a conclusion seems further warranted when one considers the case of In the marriage of B and C.[178] This case concerned the question of whether a father who had contracted AIDS could regain[179] access to his three-year old child. Counsel for the father in this case argued that the court should play an active role in counteracting the sorts of unreasonable fears and discriminatory attitudes regarding HIV/AIDS.
  7. The judge in this case rejected this argument asserting that, "if there is unreasonable community superstition and prejudice the Court cannot change that…it has no role to educate the community in relation to this matter."[180]
  8. Accordingly, the judge ruled that because of the potential detrimental effect on the child's welfare by social ostracism, which might flow from the child's association with a person with AIDS, the father's claim for access must be denied. Thus, the court far from expressing disapproval of discriminatory attitudes, instead legitimised the irrational fears of others by according them decisive weight.[181]
  9. Significantly, the judge by law had such a legal outcome available to him in framing his decision, namely that the Family Court's determination be "in the best interests of the child." Thus, in a technical sense the law practically enjoined the judge to come to such a conclusion, as the judge was putting into action a legal consequence available to him.
  10. This outcome highlights that the law has become a "willing executioner" as it can be seen to be reinforcing discrimination by not doing anything[182] about and not having to do anything about society's misconceptions and discriminatory attitudes.
  11. Anti-discrimination and other laws have not seen the "walls of exclusion come tumbling down." Consequently, it would appear that the law has no role to play in the AIDS epidemic. Indeed, some commentators argue that the laws best response to the HIV/AIDS epidemic would be an absence of laws, rather then the proliferation of anti-discrimination legislation.[183]
  12. However, such a conclusion is too simplistic as it closes any possibility of engaging with the law in an effort to end HIV/AIDS related discrimination.[184] In fact, it will be shown that the law can be a possible site for social reform and as such can serve a useful purpose in assisting strategies aimed at mitigating the impact of HIV/AIDS on those infected and in reducing its spread amongst marginalised populations.

Law as an Instrument of Social Change

I also value human rights and the principle of equal treatment. These are precious bulwarks against vulnerability and oppression, and it is almost axiomatic that the clearest perception of the need for these rights comes from those who lack them (His Honour Chief Justice Alastair Nicholson).[185]

  1. The issue which needs to be considered is whether the law can be deployed to address the problem of HIV/AIDS related discrimination and accordingly whether it has any role in achieving the goals of public health strategies in relation to HIV/AIDS. Considering that societal discrimination amplifies the risk of HIV/AIDS infections for marginalised groups and intensifies the impact of infection for those affected, then such a question is intimately related to whether the law can be used as an instrument of social change.
  2. Whilst the instrumental value of the law has already been shown to be ineffective, it remains that there are other implications of a particular legal intervention which can impact on social transformation.

Ideological Function of the Law

  1. Cotterrell argues that as legal doctrines are seen to elaborate or apply shared values then it has an important function.[186] The fact is that in a modern secular democratic society the norms and values are to a large extent embodied in the legal system.[187] Thus, the assumption that the law reflects the consensus in society is important not in its actual sense but in terms of its ideological value.
  2. The point is that legal representation carries with it a legitimating of ideas in a way in which other institutions, such as the media, do not, as it claims to speak as one of the primary voices of the modern liberal state.[188] Hence, the law by espousing norms of non-discrimination in the form of anti-discrimination legislation is significant and indeed imperative as they can contribute to establishing the legitimacy of non-discrimination in society. This, in turn, may foster a social climate more supportive of people living with HIV/AIDS and those most at risk of contracting it.

Symbolic Function of the Law

  1. Indeed, the law and in particular anti-discrimination laws also have a symbolic or educative function.[189] Put simply, anti-discrimination laws by their very existence, are symbolic statements which serve to tell people that discrimination is not acceptable in our society. In this way, the law can be an agent of social change by serving to teach people that discrimination on the basis of HIV/AIDS status or presumed status is unacceptable.
  2. In fact, earlier this year the Victorian Civil and Administrative Tribunal handed down a landmark decision in, Hall v Victorian Amateur Football Association[190] when they gave clearance to an HIV positive footballer to play in the Victorian Amateur Football League.[191]
  3. Quite apart, from the significance of the individual victory, the decision is significant for its wider impact in conveying an important message to the community about the very low risk of HIV transmission, even in a contact sport such as Australian Rules Football, where injuries resulting in blood loss are a real possibility.[192] In so doing, the decision will serve to dispel many of the misconceptions and prejudices associated with HIV/AIDS.[193]
  4. Therefore, even when it is accepted that the law has severe limitations as a means of social change it is still the case that the ideological and symbolic functions of the law are particularly significant in the field of discrimination. Hence, whilst the consequence of anti-discrimination legislation may not be the actual eradication of discrimination it can be a tool to dismantle the discourse of prejudice in society.
  5. However, the limited instrumental value of the law does raise the question as to why the law stops at "half-hearted" symbolic legislation. If it can be argued that the law can be an instrument of social change but there are very real limits as to its potential then the next step must be to examine these limits of law.

Limitations of the Law: Self-Imposed or Inherent?

  1. Given, the limitations outlined above in terms of anti-discrimination legislation and the law in general, it is necessary to ask whether the current limits to the law in relation to combating discrimination are a reflection of the limitations of the law or how we choose to implement it.
  2. It can be safely asserted that using the law to eradicate discrimination in society has definite limits for as Peter Newsam, the former Chairman of the Commission for Racial Equality states, "you can't legislate for what people think."[194]
  3.  Furthermore, in the context of HIV/AIDS the reality is that many people affected by HIV/AIDS who suffer discrimination will be resistant and unlikely to use the law as a means of possible redress, due to the public nature of the law and the consequent fear of further reprisal and discrimination.
  4. An individual, who had suffered a breach of confidentiality in the workplace, voiced this feeling. When asked whether he had considered legal action, he replied "Legal Action? That's an even greater breach of confidentiality, isn't it."[195] In truth, many persons living with AIDS just do not want the burden of a legal battle in what may be the final months or years of their lives.[196] Hence, it is apparent that there are enduring limitations on the ability of the law to prevent HIV/AIDS related discrimination.
  5. Yet, in recent times the state has actually decreased funding to anti-discrimination bodies and human rights bodies and thereby hindered their ability to advocate for those who do suffer from HIV/AIDS related discrimination.[197] Accordingly, this consequence can be read to be a self-imposed limitation of the law rather than an inherent one.
  6. Moreover, many of the weaknesses of anti-discrimination legislation are reflective of imposed limits rather then real limits due to the cautious approach of the state when enacting anti-discrimination legislation. For example, the weak enforcement structure of anti-discrimination legislation and the broad range of exceptions which it allows are not a necessary detail of disability discrimination acts.[198]
  7. In the words of the Chief Justice of the Family Court of Australia, His Honour Chief Justice Alastair Nicholson, "all too often anti-discrimination laws contain unsatisfactory compromise provisions to appease the more conservative wings of the parties introducing them."[199] Thus, the conclusion can be drawn that the current extent of the limitations of the law in relation to combating HIV/AIDS related discrimination is a reflection of the unwillingness of the law rather than its inability or capacity to make significant changes in this area.
  8. To sum up, the law cannot be relied upon as the only means, given its limitations, by which to educate, change attitudes, achieve behavioural change or protect people's rights in the context of HIV/AIDS.[200] However, at the same time, while there are limitations to the law it has been shown that the law can be an important site for social change.
  9. Indeed, it has been shown that the reality is that much less is being done by the law than what could be done. Given the consequential impact of discrimination in the context of HIV/AIDS then the simple fact is that the law can and should do more.
  10. Accordingly, as Hamblin states the law needs to be used as a "sword rather than a mere shield" by "seeking to change underlying values and patters of social interaction that create vulnerability to the threat of HIV infection."[201] This approach entails using the law proactively to eradicate discrimination. Such a role is necessary, as it would serve to promote a supportive and enabling environment conducive to positive behaviour change and therefore complement public health campaigns and prevention campaigns regarding HIV/AIDS.[202]
  11. An essential part of this enabling environment involves the empowerment of gay men, women and other vulnerable groups by improving their legal status so as to restore a sense of control over health status to these groups.[203] In order to prove these assertions it is essential to discuss the benefits of adopting a proactive approach from the law using specific examples.

Benefits of Adopting a Proactive Stance

The most effective strategies that we have so far found to help promote reduction of the spread of HIV involve the adoption of laws and policies which protect the rights of people most at risk of infection. This may seem surprising. It is a paradox. But it is so (Justice Michael Kirby).[204]

  1. It has been shown already that anti-discrimination legislation is largely "tokenistic."[205] The lack of effectiveness of anti-discrimination legislation in the context of HIV/AIDS indicates that this is a primary site for legal reform as will now be discussed.[206]

HIV/AIDS as a Separate Ground of Discrimination

  1. The problems that arise with placing HIV/AIDS under Disability Discrimination Legislation, such as definitions of handicap/impairment can only be definitively resolved by amendments to the Anti-Discrimination Act so that HIV/AIDS is a separate ground of complaint.[207] That is, specific legislation should be passed protecting those with HIV.
  2. Admittedly, most anti-discrimination legislation would appear to cover asymptomatic HIV infection as a disability for the purposes of anti-discrimination law. However, this does not necessarily mean that there will not be problems with this in the future. Indeed, a narrower reading of disability discrimination laws in this regard is possible and even plausible in the future given the medical advancements in the treatment of HIV/AIDS sufferers.[208] That is, with the advent of protease inhibitors and combination theories, many but not all, people with HIV/AIDS are living longer and enjoying better health.
  3. While these therapies have produced considerable benefits, the presumption that people with HIV/AIDS can now lead relatively healthy lives is dangerous.[209] For example, it has already resulted in a tendency to become more restrictive in determining whether asymptomatic infected individuals qualify for disability benefits in Canada.[210]
  4. In addition, in America, under the Americans with Disabilities Act in recent times the Supreme Court in Bragdon v Abbot[211] held that asymptomatic HIV infection is a "disability" under the ADA because it "substantially limits" the "life activity of procreation."[212] However, it was also stated in that case that, "presented with other facts and circumstances in a future case, perhaps reflecting dramatic improvements in medical science...we might well reach a different conclusion than the one we reach today."[213] Hence, the Abbot court envisioned a future in which the disease would be less threatening, and therefore, potentially not a protected disability at all.[214]
  5. Yet, people with HIV/AIDS are impaired from participating fully in community life not because of any personal defects or deficiencies but rather because of people's misconceptions and prejudices surrounding the disease.[215]
  6. Thus, in order to shift the focus back to the alleged discriminator's intent and away from the alleged victim's physical condition, HIV/AIDS needs to be legislated in a separate model.[216]
  7. Furthermore, by legislating HIV/AIDS as a separate ground of discrimination this would send an even more powerful message to the community that discrimination on the basis of HIV/AIDS is unacceptable, as it would make the rights of those who have suffered HIV/AIDS related discrimination clear, enforceable and known by all parties.
  8. Similarly, there are also considerable benefits to be gained by improving the legal status of marginalised populations. This will now be demonstrated by looking at what a proactive response from the law would entail and accomplish for gay men in the context of HIV/AIDS.
  9. Previous arguments in support of homosexual law reform can be broadly described as having developed around frameworks such as the need for equality and the respect for privacy.[217] Whilst these arguments are in themselves ample justification for the law to improve the legal status of homosexuals, it is the contention of this paper that HIV prevention requires the consideration of new factors.[218] In other words, the protection of their health makes such law reform an inescapable necessity. Some specific areas in which law reform in this regard is required will now be considered. [219]

Equalising the Age of Consent

  1. Only three Australian jurisdictions (Australian Capital Territory, South Australia and Victoria) currently have the same age of consent for gay men as for either lesbians or heterosexuals. In New South Wales and the Northern Territory the age of consent is 16 for heterosexual sex and 18 for homosexual sex. Whilst, in Western Australia, the age of consent for sexual relations between males is set at twenty one, three years higher than for heterosexuals and lesbians.
  2. Besides the obvious unfairness of "gay men being arrested for having consensual sex with someone who could legally have sex with a female", these laws also have a major impact on the self-esteem and sexual development of younger gay men, and accordingly greatly hinder public health policies.[220] Stevie Clayton Co-convenor of the Gay and Lesbian Rights Lobby notes:

Framing our laws [Western Australia] in such a way as to require gay men to wait until they are 21 before they can be sexually active, does not prevent such activity, it simply helps to create an environment where young men are secretive about their sexual conduct, are often forced to have anonymous sex such as at beats, have low self-esteem, and develop a negative attitude to a society which they see as oppressing them.[221]

  1. Moreover, age of consent laws that discriminate against those engaging in consensual same sex sexual behaviour not only add to the lack of self esteem and isolation experienced by young gay men, they also discourage those best positioned to alleviate these feelings from doing anything about it.[222]
  2. In short, laws such as section 78Q(2) of the NSW Crimes Act in effect make it illegal to counsel young gay men about safe sex and as such impedes the delivery of HIV information and education for homosexually active young men.[223] Section 78Q makes it an offence, punishable by up to 2 years imprisonment, to solicit, procure, incite or advise a boy under 18 to commit or be a party to sexual relations with another male.
  3. Accordingly, health professionals may be reluctant to provide services to young gay men, on matters such as condom use and safe-sex guidelines because of a concern that they may be charged with aiding the commission of a criminal offence.[224] This is reflected in a Discussion Paper on HIV/AIDS Prevention Homosexuality and the Law, which found that HIV educators employed by Health Departments and non-government organisations reported that age of consent laws in relation to homosexual behaviour was an impediment to their work.[225]
  4. In addition, these laws make it difficult for gay community and/or AIDS organisations[226] to conduct programs such as peer education which have been demonstrated to be most effective in persuading homosexual men to adopt and maintain safer sexual practices.[227]
  5. Furthermore, equalising the age of consent would have the added benefit of making young gay men less wary of using mainstream services and hence would make them more amenable to seeking advice and support from health workers and doctors.[228]
  6. Hence, a supportive and enabling environment to achieve and reinforce behavioural change among young gay men and thereby reducing their vulnerability towards contracting HIV/AIDS makes unequal age of consent laws indefensible and in need of urgent amendment.

The Law Reform (Decriminalisation of Sodomy) Act 1989 (Western Australia)

  1. In 1989 the Western Australian Government passed the Law Reform (Decriminalisation of Sodomy) Act, which legislated for consensual same sex activity. However, the Preamble to this Act condemns homosexuality by making five statements expressing Parliaments disapproval of homosexuality.[229] Put simply, such a Preamble replaces criminal sanctions against homosexual behaviour with social condemnation as it serves to reinforce the stereotype that homosexuality is an "unacceptable" lifestyle.[230]
  2. Consequently, as Justice Michael Kirby stated when President of the New South Wales Court of Appeal:

... parliamentary denunciations of homosexual conduct, as representing the express opinion of the representatives of the community are not helpful in removal of the sources of alienation which can contribute to not only personal unhappiness, but also to activity which is through ignorance or otherwise likely to cause the spread of the virus."[231]

  1. More significant still, in the context of HIV/AIDS, the Law Reform (Decriminalisation of Sodomy) Act created a new offence prohibiting the promotion and encouragement of homosexual behaviour. Section 23 of Part 2 of the Law reform (Decriminalisation of Sodomy) Act, entitled "Proselytising Unlawful", reads:

It shall be contrary to public policy to encourage or promote homosexual behaviour and the encouragement or promotion of homosexual behaviour shall not be capable of being a public purpose.

  1. In a similar vein, Section 24 of the Act provides that it shall be:

unlawful to promote or encourage homosexual behaviour as part of the teaching in any primary or secondary educational institutions.

  1. Given such legislation, one needs to query whether it is in fact possible to implement the types of strategies needed to reduce the level of HIV/AIDS transmission in Western Australia.[232] After all, safe sex education campaigns and positive images of same sex sexuality aimed at gay youth, could be seen as contravening the anti-proselytising element of this section if they are interpreted as "promoting homosexuality."[233] In addition, this section further dissuades health workers from providing information to gay men about safe sex as it may render them guilty of an offence.[234]
  2. Likewise, within the school environment, section 24 could intervene to prevent any same sex educational programs being implemented as again this might be seen to be promoting homosexuality for the purposes of this section.[235] In short, these sections of the Decriminalisation of Sodomy Act makes any frank and open discussion of homosexuality potentially very difficult.[236] This works contrary to HIV/AIDS prevention programs which are designed to gain the confidence of gay youth and promote their self-esteem in order to achieve long-term sustained behaviour change within this group.
  3. Therefore, a proactive approach from the law would require that section 23 and section 24 of the Western Australian Criminal Code Amendment Act (1989) be repealed and the Preamble removed from the Act in order to make social and physical environments "health enhancing."[237]

Recognising Same Sex Relationships

  1. Family law, through the Federal Marriage Act or State-based de facto legislation confers a certain legal status on heterosexual relationships from which various rights flow. Apart, from the ACT[238] and NSW[239] these benefits are not made available to gay men or lesbians in a relationship.
  2. However, apart from the material benefits which recognition of same sex relationships would confer on same sex couples, in the context of HIV/AIDS such recognition is important for the normative value it would provide for gay men. In the words, of Stevie Clayton:

Legal recognition of same-sex relationships will be the most significant change for lesbians and gay men in recent times, not just because it changes laws which impact on their daily lives, but because it will change both the way society looks at homosexuals and the way homosexuals look at themselves.[240]

  1. Another author writes, that the knowledge that society and the law condemn their personal relationships can be very difficult for young gay men who are coming to grips with their sexuality, as it serves to merely reinforce the morally blameworthy views which gay men, especially young gay men, have of themselves.[241] Legalising same sex relationships may as such spare young gay men the inner turmoil and isolation which often accompanies the early stages of realising their sexuality.[242]
  2. It has already been demonstrated that such inner turmoil can lead to young gay men partaking in risk-taking activities which augment their vulnerability towards HIV/AIDS. The point is that legalising same sex relationships will assist in building the self-confidence of gay men and, gay youth in particular, which would in turn make them more likely to make choices conducive to health.
  3. The failure to recognise homosexual relationships, on the other hand, promotes discrimination against gays and lesbians, as well as the perception that they are "second-class citizens."[243] Hence, legalising same sex relationships may also serve to promote greater tolerance on behalf of society towards gay men. This acceptance and support is essential for young people with same sex attraction to feel good about themselves and feel connected to their families, their peer groups and to the community as a whole.[244]
  4. Hence, the normative role of the law in establishing the legitimacy of non-discrimination against same sex relationships would assist in allowing gay men and gay youth to feel part of society and as such would create a more supportive environment for them in which to make healthy life choices.

Summary

  1. Although, the introduction of law reforms is no solution in itself to prejudice, discrimination, hostility and violence against gay men a proactive approach by the law can promote increased societal and self-acceptance by homosexuals.[245] In so doing, the law can support and complement public health campaigns aimed to give confidence and positive self-esteem to gay men and to achieve long-term sustained behaviour change amongst this group.
  2. In turn, this would reduce their risk of HIV/AIDS infection.[246] On the other hand, to maintain the law in its current discriminatory form is to sustain and exacerbate the conditions which lead to societal vulnerability to HIV/AIDS infection among gay men and gay youth.
  3. Therefore, the advent of HIV/AIDS necessitates that the law adopts a proactive stance in relation to discrimination, which entails a human rights approach aimed at improving the status of marginalised groups in society, as to not do so places lives at risk, as is evident when one considers the plight of gay men.

Conclusion

AIDS has become a permanent challenge to human ingenuity and solidarity (Dr. Peter Piot, head of UNAIDS).[247]

  1. It has been demonstrated that it is impossible or futile to address the vulnerability of marginalised populations in relation to the HIV/AIDS epidemic without addressing the societal context which places marginalised groups at risk of infection and at risk of suffering needless consequences if affected. This reality is graphically illustrated when one considers the impact of discrimination in the context of HIV/AIDS.
  2. In short, the discrimination which is propagated at all levels of society serves to dramatically increase the personal cost of infection as it adversely impacts on the care and support those living with HIV/AIDS receive. Moreover, discrimination also results in magnifying the vulnerability of marginalised groups in society towards contracting HIV/AIDS and therefore assists in fueling the spread of HIV/AIDS.
  3. The fact that these two unpalatable consequences are intertwined with discrimination means by practicing and perpetuating discrimination or in not challenging it, then we have all become the "willing executioners" of this deadly virus.
  4. Put simply, the advent of AIDS means that we can no longer afford not to challenge discrimination as to not do so threatens the lives of millions of men, women and children. If we fight now at least we can absolve ourselves of further responsibility in this tragedy and shed the tag of being "willing executioners." In this regard, the state and the law have to adopt a human rights, proactive approach to the AIDS epidemic which entails strengthening anti-discrimination laws and empowering those groups marginalised in society.[248]
  5. Perhaps, as such, if there is to be a positive consequence of this epidemic it will be that it has forced us to recognise and remove some of the most entrenched barriers to the effective protection of the rights to life and health for marginalised populations.[249] Indeed, if nothing else, hopefully the HIV/AIDS pandemic may unmask the danger that is discrimination.
  6. The views expressed in this paper, are best summed up by Kofi Annan, the Secretary-General of the United Nations, when he stated:

In some parts of Africa, the name for AIDS translates as "shame has fallen on the Earth." My friends, shame will indeed fall on the Earth if we turn our backs on those affected by AIDS and cast them into the shadows. Shame will fall on all of us if we do not wipe out every trace of prejudice and discrimination surrounding this disease...Is the choice really so hard?[250]

  ☼

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Notes

[1] D.Altman, AIDS in the Mind of America (London: Pluto Press, 1996), p. 192.

[2] This label has been taken from D.Goldhagen's book, Hitler's Willing Executioner (London: Little, Brown and Company, 1996). It is in no way meant to represent approval with the views expressed in that book nor is it an endorsement for that book. Rather, the term "willing executioners" has been used as it most powerfully conveys the message that we are all reprehensible in the context of HIV/AIDS as will be demonstrated throughout this essay.

[3] D.Goldhagen, Hitler's Willing Executioners (New York: Transnational Publishers, 1995), pp. 1-25.

[4] "Us" here refers to "us" in terms of our role as individuals, as members of communities and as members of society, as well as "us" in the sense of the dominant institutions that permeate society, in particular the state and the law. As this paper develops, there will be separate sections on the role of the state and the law in relation to the HIV/AIDS epidemic. For the moment, it is convenient to label all under the one term.

[5] HIV is the name of the virus which can cause AIDS. HIV stands for Human Immuno-deficieny Virus. AIDS stands for Acquired Immune Deficiency Syndrome. For a person to become infected with HIV, the virus has to get from an infected person into the bloodstream of a non infected person and therefore cannot be contracted through casual contact as is often assumed by members of the public. The most common ways to contract HIV/AIDS are by unprotected ("unsafe") sex or by sharing needles with an infected person.

[6] D.Tarantola, "A Global View of AIDS at the Millennium", Keynote address to AIDS in the Millennium: The Converging Worlds of AIDS; organised by the Massachusetts Medical Society and Lemuel Shattuck Hospital; John F. Kennedy Library and Museum; Boston, Massachusetts; November 18, 1998, p. 1.

[7] ibid.

[8] P.Piot, "Human Rights and HIV/AIDS", Speech to the UN Human Rights Commission, extracted from, http://www.unaids.org/whatsnew/press/eng/pressarc96/humanen.html, April 1996, p. 1.

[9] This essay will specifically focus on men who have sex with men, as it is this group, who are primarily infected by HIV/AIDS in Australia.

[10] These goals were launched in Australia's Third National Strategy for dealing with HIV/AIDS and other communicable diseases on 18 December 1996. Naturally, this is the stated goal of nearly all countries in combating HIV/AIDS and indeed of the Joint United Nations Program on HIV/AIDS (UNAIDS). See, HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, p. 4.

[11] A.L.Yamin, "Defining Questions: Situating Issues of Power in the Formulation of a Right to Health under International Law", Human Rights Quarterly, Vol. 18 (1996), pp. 398-438.

[12] T.de.Bruyn, "HIV/AIDS and Discrimination: A Discussion Paper", Canadian HIV/AIDS Legal Network and Canadian AIDS Society, Montreal, 1998, pp. 1-13.

[13] R.Jurgens, "HIV/AIDS, Law, and Ethics", Canadian HIV/AIDS Legal Network and Canadian AIDS Society, Montreal, 1995, pp. 1-5.

[14] J.Hamblin, "The Role of the Law in HIV/AIDS Policy", AIDS, Vol. 5 (Suppl 2, 1991), p. 239.

[15] HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, p. 5.

[16] For the purposes of this paper, these groups will at times be generally classified as "marginalised" groups, although it needs to be acknowledged that the degree and source of vulnerability of these groups varies widely within countries and across regions.

[17] HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, p. 40.

[18] D.Pratt, "Health Care Policy: What Lessons Have We Learned From the AIDS Pandemic", Albany Law Review, Vol. 61 (1998), p. 672.

[19] D.Buchanan and J.Goodwin, "AIDS - The Legal Epidemic", Legal Services Bulletin, Vol. 13 (1998), p. 111.

[20] ibid.

[21] R.Evans, "Living with AIDS", Law Institute Journal, Vol. 12 (1994), p. 9.

[22] J.Mann and D.Tarantolo, AIDS in the World II: Global Dimensions, Social Roots and Responses (New York: Oxford University Press, 1996), p 441.

[23] T.de.Bruyn, op.cit., p. 1.

[24] L.A.Nisbet and D.V.McQueen, "Anti-Permissive To Lifestyles Associated With Aids", Social Science and Medicine, Vol. 36 (1993), p. 893.

[25] ibid.

[26] R.O'Brien, "Discrimination: The Difference With Aids", Journal of Contemporary Health Law and Policy, Vol. 6 (1990), p. 95.

[27] M.L.Colsen, "The Decade of Supreme Court Avoidance of AIDS: Denial of Certiorari in HIV-AIDS Cases and its Adverse Effects on Human Rights", Albany Law Review, Vol. 61 (1991), p. 912.

[28] ibid.

[29] The fact that HIV/AIDS is transmissible in addition to the reality that the effects of HIV/AIDS are irreversible, as it is incurable, make some sort of stigma attached to HIV/AIDS inevitable.

[30] G.M.Herek, "AIDS and Stigma", American Behavioral Scientist, Vol. 42 (1999), p. 1102.

[31] D.Altman and K.Humphrey, "Breaking Boundaries: AIDS and Social Justice in Australia", Social Justice, Vol. 16 (1989), p. 163.

[32] McCallum, et al., National Centre for Epidemiology and Population Health, Australian National University, 1990.

[33] R.O'Brien, op.cit., p. 93.

[34] Reflected in the fact that since the beginning of the epidemic HIV/AIDS was associated with gay men; AIDS was often given titles such as the "gay plague", "gay cancer" and "Gay Related Immune Deficiency (GRID)."

[35] T.de.Bruyn, op.cit., p. 5.

[36] I.Lauw, "Victimless Crimes - Decriminalisation of Homosexual Sexual Activity", E Law - Murdoch University Electronic Journal of Law, Vol. 1 (1994), p. 4. This journal is available from the internet at: http://www.murdoch.edu.au/elaw

[37] T.de.Bruyn, op.cit., p. 5.

[38] ibid., p. 7.

[39] C.A.Hankins and M.A.Handley, "HIV Disease and Aids in Women. Current Knowledge and a Research Agenda", Journal of Acquired Immune Deficiency Syndrome, Vol. 5 (1992), p. 957.

[40] S.Lawless et al, "Dirty and Diseased and Undeserving: The position of HIV Positive Women", Social Science and Medicine, Vol. 43 (1996), p. 1373.

[41] ibid..

[42] ibid, pp. 1371-1377.

[43] E.Cameron, "Human Rights, Racism and AIDS: The New Discrimination", South African Journal on Human Rights, Vol. 9 (1993), p. 26.

[44] P.Piot, Speech at the XIth International Conference on AIDS and STDs in Africa, 12 September, 1999, Lusaka, Zambia, extracted from http://www.unaids.org/whatsnew/speeches/eng/lusaka99.html, p. 2.

[45] T.de.Bruyn, op.cit., p. 1.

[46] R.L.Siegel, "AIDS and Human Rights", Human Rights Quarterly, Vol. 18 (1996), pp. 612-615.

[47] M.Kirby, "Human Rights and the HIV Paradox", Lancet, Vol. 348 (1996), p. 1217.

[48] W.Adler, "A Legal Perspective on Insurance Industry Reactions to AIDS", Law Society Journal, Vol. 6 (1992), p. 64.

[49] M.Kirby, op.cit., pp. 1217-1218.

[50] T.de.Bruyn, op.cit., p. 8.

[51] A.E.Yamin, op.cit., p. 406.

[52] T.Rhodes, "Individual and Community Action in HIV prevention" in T.Rhodes and P.Hartnoll (eds), Aids, Drugs and Prevention (London: Routledge, 1996), p. 8.

[53] ibid.

[54] ibid.

[55] G.Hart, "Gay Community Orientated Approaches to Safer Sex", in T.Rhodes and P.Hartnoll (eds), Aids, Drugs and Prevention (London: Routledge, 1996), p. 98.

[56] L.V.Quiros, "Discrimination Against HIV-Infected People or People with AIDS: Conclusions and Recommendations of the Special Rapporteur of the Sub-Commission", 1997, p. 3.

[57] It is important to note that the category gay men comprises a diversity of identities, cultures and behaviours. Thus, it must be kept in mind that the degrees to which men considered under these categories may have appropriated the discrimination and stigma associated with homosexual activity or identity will vary.

[58] Australian HIV Surveillance Report, National Centre in HIV Epidemiology and Clinical Research, Sydney, University of New South Wales, Vol. 15 (1999).

[59] D.L.Chambers, "Gay Men, AIDS and the Code of the Condom", Harvard Civil Rights-Civil Liberties Law Review, Vol. 29 (1994), p. 356.

[60] L.Wherrett and W.Talbot, HIV/AIDS Prevention, Homosexuality and the Law, Intergovernmental Committee on AIDS Legal Working Party, 1991, p. 3.

[61] A.Lean, "Queer Justice or Just Plain queer", Polemic, Vol. 4 (1993), p. 107.

[62] Men were included in the Male Call '96 survey according to the criterion that they had had sex with at least one other man during the last five years prior to the interview. See, P.Van de Ven et al, "Homophobic and HIV-related Abuse and Discrimination Experienced by Gay and Homosexually Active Men in an Australian National Sample", The Australian and New Zealand Journal of Criminology, Vol. 31 (1998), pp. 149-159.

[63] P.Van de Ven, S.Kippax, J.Crawford, K.Race and P.Rodden, "Homophobic and HIV-related Abuse and Discrimination Experienced by Gay And Homosexually Active Men in an Australian National Sample", The Australian and New Zealand Journal of Criminology, Vol. 31 (1998), p. 141.

[64] R.Jurgens, "Focus on Gay Issues: Discrimination Impedes the Fight Against AIDS", Canadian HIV/AIDS Policy And Law Our Sponsors , Vol. 1 (1995), p. 2.

[65] L.Wherrett and W.Talbot, op.cit., p. 6.

[66] Report of the Evaluation of the National HIV/AIDS Strategy, National Evaluation Steering Committee (Canberra: Commonwealth of Australia, 1992), p. 17.

[67] R.Sanitioso, "A Social Psychological Perspective on HIV/AIDS and Gay or Homosexually Active Asian Men", Journal of Homosexuality, Vol. 36 (1999), pp. 76-78.

[68] T.de.Bruyn, op.cit., p. 12.

[69] It must be noted that gauging how much new infection is occurring among young gay men is difficult as many young gay men are unwilling to be interviewed and tested. However, studies show general agreement on the fact that new infections are occurring at a significant level amongst this group.

[70] D.R.Hoover et al., "Estimating the 1978-1990 and Future Spread of HIV Type 1 in Subgroups of Homosexual Men", American Journal of Epidemiology, Vol. 134 (1991), pp. 1190-1192. See also, L.Lewis & M.Ross, The Gay Dance Party Subculture and the HIV/AIDS Pandemic (London: Cassell, 1995).

[71] Report of the Evaluation of the National HIV/AIDS Strategy, National Evaluation Steering Committee (Canberra: Commonwealth of Australia, 1992), p. 58.

[72] See, HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, pp. 34-44.

[73] The Project Male Call survey found that younger gay men were approximately four times more likely to have been bashed as a consequence of HIV-related prejudice then older gay men. See, P.Van de Ven et al, "Homophobic and HIV-related Abuse and Discrimination Experienced by Gay And Homosexually Active Men in an Australian National Sample", The Australian and New Zealand Journal of Criminology, Vol. 31 (1998), pp. 141-159.

[74] C.N.Kendall and S.Walker, "Combating Lesbian and Gay Youth Suicide and HIV/AIDS Transmission Rates: An Examination of Possible Education Strategies in Western Australian High Schools in Light of Prevailing State Statutes", E Law - Murdoch University Electronic Journal of Law, Vol. 5 (1998), pp. 2-3.

[75] A number of authors have shown that gay, lesbian and bisexual youth are at an increased risk for engaging in behaviour which jeopardises their health, including suicide attempts. The fact is that homosexuality is the leading cause of suicide amongst gay teenagers. However, for the purposes of this essay the vulnerability of gay youth will be discussed in terms of HIV/AIDS infection although it is important to recognise the extreme vulnerability of gay youth in society. For further reference to the topic of gay youth and the increased risks to which they are exposed to in society, including suicide see: K.Fordham, Sexuality and Suicide: An Investigation of Health Compromising and Suicidal Behaviours among Gay and Bisexual Male Youth in Tasmania, Division of Community and Rural Health, Faculty of Medicine, University of Tasmania, September 1998, pp. 1-78. Also see, A.R.D.A'ugelli and S.L.Hershberger, "Lesbian, gay and bisexual youth in community settings: personal challenges and mental health problems", American Journal of Community Psychology, Vol. 21 (1993), pp. 421-428.

[76] As alluded to earlier positive self-esteem is a necessary prerequisite for gay men and gay youth especially to be able to adopt and maintain safe sex practices. Increased self-esteem serves to enhance people's ability to negotiate safe sex and recognise risky situations, which may expose them to HIV/AIDS infection.

[77] G.Kruks, "Gay and Lesbian Homeless/Street Youth: Special Issues and Concerns", Journal of Adolescent Health, Vol. 12 (1991), pp. 515-518.

[78] See, G.Brown, R.Chadwick and A.Goldflam, "'Here For Life' Youth Sexuality Project", WA AIDS Council in conjunction with the Gay and Lesbian Counselling Service, Western Australia, Perth, January 1999.

[79] R.C.Savin-Williams and R.E.Lenhart, "AIDS Prevention among Gay and Lesbian Youth", in D.G.Ostrow (eds), Behavioural Aspects of AIDS (New York: Plenium Medical Book Co), pp. 80-83.

[80] Quoted in K.Jennings, Becoming Visible: A Reader in Gay and Lesbian History for High School and College Students (Boston: Alyston Publications, 1994), p. 271.

[81] R.C.Savin-Williams and R.E.Lenhart, op.cit., pp. 85-86.

[82] C.N.Kendall and S.Walker, op.cit., p. 3.

[83] N.Toonen, "Homophobia and HIV", National AIDS Bulletin, December 1992/January 1993, pp. 35-37.

[84] In spite of the popular belief that teaching kids about sex will lead to promiscuity, the opposite is true. The World Health Organisation review of studies on the effect of sexual health education found that education on sexuality and/or HIV does not encourage increased sexual activity but rather allows responsible and safe behaviour to be learned. Yet, despite this knowledge gay youths continue to receive the minimal amount of education in relation to their needs.

[85] E.Kallen, "Gay and Lesbian Rights Issues: A Comparative Analysis of Sydney, Australia and Toronto, Canada", Human Rights Quarterly, Vol. 18 (1996), p. 219.

[86] Quoted in "Homosexuality Gay Men & AIDS", AVERT Website, extracted from http://www.avert.org/hsexu3.htm, Sept 27, 1999, p. 3.

[87] The fact is that such attitudes are not only plainly discriminatory but incorrect as they ignore the reality that gay youth often identify themselves as gay at an early age. Therefore, it is essential that education be focused at gay youth. For a discussion of this topic see: B.M.Dank, Coming Out in the gay world. In deviance: the interactionalist perspective, (New York: Macmillan, 1981).

[88] Indeed, the government has constantly espoused similar views. For example, in August of 1997, the Federal Minister for Family Services, Judy Moylan, publicly rejected a poster aimed at building self-esteem among same-sex attracted youth, branding it a "recruitment aid for homosexuality."

[89] S.Watney, "AIDS: The Second Decade: 'Risk', Research and Modernity", in P.Aggleton, G.Hart and P.Davies (eds) AIDS Responses, Interventions and Care (Lewes: Falmer Press, 1991), p. 13.

[90] C.Dobney and M.Jones, "Don't You Worry About That", Capital Q Weekly, Vol. 3 (1997), p. 4.

[91] T.de.Bruyn, op.cit., p. 13.

[92] C.Hankins, "Human Rights, Women and HIV", Canadian HIV/AIDS Legal Network and Canadian AIDS Society, Montreal, July 1996, pp. 1-8.

[93] Today, put simply, women are at the centre of concern of the HIV/AIDS epidemic as they are one of the fastest growing populations being infected with HIV. Indeed, WHO estimates that almost half of all newly infected adults in the world are women.

[94] HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, pp. 44-46.

[95] R.Stodhill, "Where'd You Learn That", Time Magazine, June 20, 1998, p. 57.

[96] T.Wilton and P.Aggleton, "Condoms, Coercion and Control: Heterosexuality and the Limits to HIV/AIDS Education", in P.Aggleton, G.Hart and P.Davies (eds), AIDS Responses, Interventions and Care (Lewes: Falmer Press, 1991), p. 155.

[97] A.E.Yamin, op.cit., p. 429.

[98] L.Freedman, "Reflections on Emerging Frameworks of Health and Human Rights", Health & Human Rights, Vol. 1 (1995), p. 314.

[99] Gender discrimination is also manifested in the low economic status of women in most societies. This can impact on the ability of women to negotiate safe sex as they may be economically dependent on their partner.

[100] P.Piot, op.cit., (1996), p. 4.

[101] Quoted from R.Zerner, "German Protestant Responses to Nazi Persecution of the Jews" in R.L.Braham (eds), Perspectives on the Holocaust, (London, 1983), p. 66.

[102] HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, p. 4.

[103] E.D.Fesl, Conned, (Queensland: University of Queensland Press, 1993) pp. 1-7, 72-75.

[104] T.de.Bruyn, op.cit., p. 12.

[105] C.N.Kendall, "Sexuality: What's the law got to do with it ?", Alternative Law Journal, Vol. 20 (1995), p. 267.

[106] ibid.

[107] Also because their privileged position comes as a result of others non-privileges. For a further explanation as to these points see, E.D.Fesl, Conned, (Queensland: University of Queensland Press, 1993) pp. 1-7, 72-75.

[108] K.Annan, "The Diana, Princess of Wales, Memorial Lecture on AIDS", extracted from http://www.nat.org.uk/kofiannan/lecture.html, p. 5.

[109] Quoted in, J.M.Oleske, "Rights of the Child: Real World Connections between Health and Human Rights", Annual Conference of the Global Health Council, Arlington, VA, June 20-22 1999, extracted from http://www.fxb.org/kids/oleske_plea.html, p. 4.

[110] Quoted in, M.Heywood, "Thirty Million and Counting : The Urgent Need to Move Policy to Comprehensive Interventions", Canadian HIV/AIDS Legal Network and Canadian AIDS Society, Montreal, extracted from http://www.aidslaw.ca/Our Sponsors /spring99/geneva98-2.htm, 1998, p. 9.

[111] A Special Report by Public Medical Center. San Francisco: The Center, 1995; cited in Canadian HIV/AIDS Legal Network and Canadian AIDS Society, Montreal, extracted from http://www.aidslaw.ca/

[112] ibid.

[113] M.Carden, "Health, Homophobia and HIV", Social Alternatives, Vol. 14 (1995), pp. 34-35.

[114] See the section of this paper entitled, "The Problem in Perspective: Their Behaviour or Ours" under the sub-heading of "The Impact of Discrimination on Young Gay Men."

[115] C.N.Kendall and S.Walker, op.cit., p. 5.

[116] M.Heywood, op.cit., p. 10.

[117] S.Gruskin, "Human Rights and Public Health: An Overview", Speech Presented at the XII International AIDS Conference, Geneva, Switzerland, June 1998, extracted from http://www.hri.ca/, p. 4.

[118] This is most clearly evidenced in the reality that HIV/AIDS disproportionately affects marginalised groups who lack human rights protection.

[119] HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, p. 40.

[120] HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, p. 10.

[121] D.Stephens, "Human rights: from policy to practice", Reprinted from HIV/AIDS Legal Link, Vol. 8 (1997), published by the Australian Federation of AIDS Organisations, pp. 10-11.

[122] J.M.Dwyer, "Legislating AIDS Away: The Limited Role of Legal Persuasion in Minimizing the Spread of the Human Immunodeficiency Virus", Journal of Contemporary Health Law and Policy, Vol. 9 (1993), p. 169.

[123] P.Piot, op.cit., (1996), p. 2.

[124] ibid.

[125] ibid.

[126] HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, p. 24.

[127] M.Kirby, op.cit., p. 1217.

[128] M.Thornton, "Sex Discrimination Legislation in Australia", Australian Quarterly, Vol. 54 (1982), p. 401.

[129] Data provided by the Anti-Discrimination Board of New South Wales from its Annual Reports 1997-98.

[130] J.Cabassi, "Out of Reach", Reprinted from HIV/AIDS Legal Link, Vol. 8 (1997), published by the Australian Federation of AIDS Organisations, p. 9.

[131] New South Wales Anti-Discrimination Board, Discrimination - The Other Epidemic: Report of the Inquiry into HIV and AIDS Related Discrimination (1992).

[132] J.Cabassi, op.cit., p. 9.

[133] ibid.

[134] (1995) 127 ALR 1.

[135] W.Wright, "HIV/AIDS Related Discrimination", Law Society Journal, Vol. 30 (1992), p. 63.

[136] Note that there have been proposals to try and overcome the lack of enforcement power of HREOC. One current proposal, which at the time of writing was in its second reading in the Senate, is The Human Rights Legislation Amendment Bill (No.1) 1996. The Bill proposes to remedy the current enforcement problem by transferring HREOC's hearing function to the Federal Court to overcome the need for two hearings. Yet, in no way does the bill satisfactorily overcome the prospect of two hearings. This is because it will enable judges to delegate decision-making power to judicial registrars in discrimination matters - and decisions by judicial registrars are not enforceable. Moreover, this in itself, creates many disincentives to using the system, including massive financial disincentives such as filing fees. See, J.Cabassi, "Out of Reach", Reprinted from HIV/AIDS Legal Link, Vol. 8 (1997), published by the Australian Federation of AIDS Organisations, pp. 9-17.

[137] J.Cabassi, op.cit., p. 11.

[138] Adding to the fundamental inadequacies associated with HREOC is the fact that in its first budget, the current Federal Coalition Government announced significant funding cuts to HREOC, amounting to 40% over three years. A loss in funding as such has seen the capacity of the Commission's complaints handling functions diminished. See, R.Banks, "Human Rights & discrimination body facing erosion of powers", Reprinted from HIV/AIDS Legal Link, Vol. 9 (1998), published by the Australian Federation of AIDS Organisations, p 10.

[139] Tasmanian law does not prohibit discrimination on the grounds of HIV/AIDS. In South Australia, the Equal Opportunity Act prohibits discrimination where a person has symptomatic HIV infection such that it is not clear whether this covers asymptomatic HIV/AIDS infection.

[140] ss. 83(1) and (3), WA EO ACT; s. 103, NSW A-D Act; s. 44(4) VIC. EO Act.

[141] G.K.Roussos, "Protections Against HIV-Based Employment Discrimination in the United States and Australia", Hastings International & Comparative Law Review, Vol. 13 (1990), p. 666.

[142] H.Watchirs, HIV/AIDS and Anti-Discrimination Legislation, Intergovernmental Committee on AIDS Legal Working Party (Canberra: Commonwealth of Australia, 1991), p. 31.

[143] B.Doyle, "Disability discrimination and enforcement in Britain: future prospects" in M.MacEwen (eds), Anti-Discrimination Law Enforcement: A Comparative Perspective (Suffolk: Ipswich Book Comp, 1997), p. 78.

[144] J.Cabassi, op.cit., p. 14.

[145] ibid.

[146] M.Landolt, "Are AIDS Victims Handicapped", Saint Louis University Law Journal, Vol. 31 (1987), p. 730.

[147] P.Garde, "Discrimination and Vilification", Reprinted from HIV/AIDS Legal Link, Vol. 9 (1998), published by the Australian Federation of AIDS Organisations, p. 12.

[148] J.Cabassi, op.cit., p. 14.

[149] G.K.Roussos, op.cit., p. 673.

[150] P.Van de Ven, S.Kippax, J.Crawford, K.Race and P.Rodden, op.cit., p. 141.

[151] In each jurisdiction there are complex range of exceptions to the legislation both generally, and particularly in relation to impairment or handicap. Exceptions include in employment in a private household, in a business employing less than six people or in a private educational authority. Section 49B(3)(b), NSW A-D Act; s21(4)(g) and (j), VIC EO Act; 71(1) - last ground only.

[152] W.Morgan, "Still in the Closet: The Heterosexism of Equal Opportunity Law", Critical inQueeries, Vol. 2. (May 1996), p. 121.

[153] H.Watchirs, op.cit., p. 26.

[154] P.Waters, "The Coverage of AIDS-related Discrimination under Handicap Discrimination Laws: The US and Australia Compared", Sydney Law Review, Vol. 12 (1990), p. 377.

[155] H.Watchirs, op.cit., p. 26.

[156] (1988) EOC 92-234

[157] S. 49 (I) New South Wales Anti-Discrimination Act (1977).

[158] Jamal v Secretary, Department of Health (1988) EOC 92-234 at 77,200 per Samuels J.A.

[159] G.K.Roussos, op.cit., p. 667.

[160] H.Watchirs, op.cit., p. 26.

[161] ibid, p. 27.

[162] B.Doyle, op.cit., p. 70.

[163] The nature of HIV is that the course of infection is characterised by periods of health interspersed with periods of illness. The asymptomatic stages of infection may last from any period between months and years before a person reaches the final stage of infection in which he or she is said to have AIDS.

[164] P.Waters, op.cit., p. 377.

[165] S. 4(1)

[166] P.Waters, op.cit., p. 399.

[167] (1987) EOC 92-96.

[168] Kitt v Minister for Tourism (1987) EOC 92-96

[169] W.Wright, op.cit., p. 62.

[170] P.Waters, op.cit., p. 383.

[171] ibid.

[172] This was quoted by President Bush upon signing into law the Americans with Disabilities Act.

[173] High Court of Australia, 31 July 1997 FC97/027, P37/96.

[174] C.Ward, "Discrimination Case Lost in High Court", Reprinted from HIV/AIDS Legal Link, Vol. 8 (1997), published by the Australian Federation of AIDS Organisations, p. 15.

[175] ibid, p. 17.

[176] ibid.

[177] Initially, the complainants had won their case at the Equal Opportunity Commission and then lost at the Supreme Court to which one member, being the only one still alive, appealed to the High Court.

[178] (1989) FLC 92-043.

[179] Initially, the father did have restricted access to his child but after suffering depression as a result of his infection he informed his ex wife that he no longer wanted access to his child. However, after returning to stable health he informed his ex wife that he now wished to regain access. She refused to grant this and so litigation by the father commenced.

[180] In the marriage of B and C (1989) FLC 92-043 per Smithers J.

[181]  J.Godwin, "AIDS hysteria - the law in support", Legal Services Bulletin, Vol. 14 (1989), p. 170.

[182] For reasoning as to why staying silent or not working to eradicate discrimination entails the label "willing executioners", see section in Part I of this paper entitled, "Challenging Discrimination: An Option or an Obligation?"

[183] J.M.Dwyer, op.cit., p. 177.

[184] S.Burris, "Law and the Social Risk of Health Care: Lessons from HIV Testing", Albany Law Review, Vol. 61 (1998), pp. 831-893.

[185] A.Nicholson, "The Changing Concept of Family - The Significance of Recognition and Protection", Australian Journal of Family Law, Vol. 11 (1997), p. 15.

[186] R.Cotterrell, The Sociology of Law: An Introduction (Sydney: Butterworths, 1984), pp. 74-76, 104-125.

[187] A.Nicholson, op.cit., p. 13.

[188] W.Morgan, "Queer Law: Identity, Culture, Diversity, Law", Australasian Gay and Lesbian Law Journal, Vol. 5 (1995), p. 8.

[189] W.G.Carson, "Law Making: Symbolism and Instrumentality" in C.M.Campbell and P.Wiles (eds), Law and Society (Martin-Robertson, 1979), pp. 236-246.

[190] No 1998/153, 23 April 1999.

[191] This case concerned The Victorian Amateur Football Association refusal of Mr. Hall's application for registration on the basis that such refusal was reasonably necessary to protect the health and safety of other registered players engaged in the competition, considering Mr. Hall's HIV positive status.

[192] M.Otlowski, "Association's ban on HIV positive player ruled discriminatory", Australian Health Law Bulletin, Vol. 7 (1999), p. 89.

[193] ibid.

[194] Quoted in P.Crane, Gays and the Law (Pluto Press, 1982), p. 175.

[195] T.de.Bruyn, op.cit., p. 13.

[196] G.K.Roussos, op.cit., p. 1057.

[197] See, J.Cabassi, "Out of Reach", Reprinted from HIV/AIDS Legal Link, Vol. 8 (1997), published by the Australian Federation of AIDS Organisations, pp. 9-17.

[198] H.Watchirs, op.cit., p. 35.

[199] A.Nicholson, op.cit., p. 13.

[200] See generally, HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, pp. 1-62.

[201] J.Hamblin, op.cit., p. 239.

[202] ibid.

[203] See generally, HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, pp. 1-62.

[204] M.Kirby, op.cit., p. 1217.

[205] M.Thornton, op.cit., p. 393.

[206] Specific reforms, which are needed, is legislative amendment to ensure HREOC determinations in disability discrimination matters are enforceable. Representative and organisation complaints and advocacy services should be permitted in jurisdictions which it is not allowable. Punitive damages should be able to be awarded. Moreover, legislative amendment is clearly required to remove the exceptions, which currently pervade anti-discrimination legislation as the only relevant exception should be discrimination which is reasonably necessary to protect public health. These reforms would serve to strengthen anti-discrimination legislation and therefore would increase its use and also its deterrent function.

[207] W.Wright, op.cit., p. 62.

[208] C.M.Ajat, "Is HIV Really a 'Disability'?: The Scope of the Americans With Disabilities Act After Bragdon v Abbot", Harvard Journal of Law & Public Policy, Vol. 22 (1998), pp. 751-770.

[209] T.de.Bruyn, op.cit., p. 13.

[210] ibid.

[211] 118 S. Ct. 2196 (1998).

[212] W.E.Parmet and D.J.Jackson, "No Longer Disabled: The Legal Impact of the New Social Construction of HIV", American Journal of Law and Medicine, Vol. 23 (1997), p. 36.

[213] ibid.

[214] ibid.

[215] H.Hahn, "The Politics of Physical Differences: Disability and Discrimination", Journal of Social Issues, Vol. 44 (1988), pp. 39-47.

[216] P.Waters, op.cit., p. 383.

[217] L.Wherrett and W.Talbot, op.cit., p. 5.

[218] ibid, p. 13.

[219] It should not, be implied that the areas covered in this part of the paper are the only areas in which law reform is needed to improve the legal position of men who have sex with men, as only those laws which most decisively have an impact on, and can assist with HIV/AIDS prevention strategies, will be discussed.

[220] S.Clayton, "Equal Age of Consent", Reprinted from HIV/AIDS Legal Link, Vol. 8 (1997), published by the Australian Federation of AIDS Organisations, p. 12.

[221] ibid.

[222] C.N.Kendall and S.Walker, op.cit., p. 9.

[223] ibid.

[224] I.Lauw, op.cit., p. 4.

[225] H.Watchirs, op.cit., p. 8.

[226] Moreover, in Western Australia setting the age of consent at 21 also adversely impacts on the way that schools and youth agencies can support people with same sex attractions who are less than 21 years old.

[227] L.Wherrett and W.Talbot, op.cit., p. 8.

[228] C.N.Kendall and S.Walker, op.cit., p. 2.

[229] Specifically, the preamble states: WHEREAS, the Parliament does not believe that sexual acts between consenting adults in private ought to be regulated by the criminal law: AND WHEREAS, the Parliament disapproves of sexual relations between persons of the same sex; AND WHEREAS, the Parliament disapproves of the promotion or encouragement of homosexual behaviour; AND WHEREAS, the Parliament does not by its action in removing any penalty for sexual acts in private between persons of the same sex wish to create a change in community attitude to homosexual behaviour; AND WHEREAS, in particular the Parliament disapproves of persons with care supervision or authority over young persons urging them to adopt homosexuality as a lifestyle and disapproves of instrumentalities of the state so doing.

[230] C.N.Kendall, "Discriminatory laws leave young at risk", Reprinted from HIV/AIDS Legal Link, Vol. 10 (1999), published by the Australian Federation of AIDS Organisations, p 20.

[231] Quoted from, L.Wherrett and W.Talbot, HIV/AIDS Prevention, Homosexuality and the Law, Intergovernmental Committee on AIDS Legal Working Party, 1991, p. 11.

[232] C.N.Kendall and S.Walker, op.cit., p. 7.

[233] ibid, p. 7.

[234] L.Wherrett and W.Talbot, p. 8.

[235] C.N.Kendall and S.Walker, op.cit., p. 7.

[236] ibid.

[237] See, G.Brown, R.Chadwick and A.Goldflam, "'Here For Life' Youth Sexuality Project", WA AIDS Council in conjunction with the Gay and Lesbian Counselling Service, Western Australia, Perth, January 1999.

[238] ACT in 1994 passed a Domestic Relationship Act, which deals with property and financial distribution on the breakdown of a relationship, and was the first piece of legislation in Australia to give equal standing to gay and lesbian relationships.

[239] On the 28 June 1999 the Property (Relationships) Legislation Amendment Act 1999 (NSW) was proclaimed which gave same sex couples the same rights as heterosexual de facto couples.

[240] S.Clayton, "Legal Recognition of Same Sex Relationships: Where to from Here?", E Law - Murdoch University Electronic Journal of Law, Vol. 3 (1996), p. 10.

[241] I.Lauw, "Recognition of Same-Sex Marriages: Time for Change ?", E Law - Murdoch University Electronic Journal of Law, Vol. 1 (1994), p. 23.

[242] ibid, p. 16.

[243] ibid, p. 18.

[244] A.Nicholson, op.cit., pp. 18-21.

[245] ibid, p. 14.

[246] L.Wherrett and W.Talbot, op.cit., p. 13.

[247] P.Piot, op.cit., (1996), p. 6.

[248] HIV/AIDS and Human Rights - International Guidelines, Geneva and New York, 1998, p. 27.

[249] ibid, p. 4.

[250] K.Annan, op.cit., p. 10.



 

 

 

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