Close to Home


By Sarah Grace Ross

Unlike the majority of my fellow interns, my placement is not only within Canada, but in the very city where I was born: Toronto.

Despite having lived away from Toronto for a few years, it hasn’t taken long for me to become reacquainted with the city. From the neighbourhoods that my friends live in, to the best roti you can find, I know Toronto.

So with the start of my internship at the HIV/AIDS Legal Network, I was curious to find out what it would mean to work in human rights so close to home. My first realization during the internship was that while I know Toronto, I only know my Toronto, which is one version among millions. My internship was situated in a very different Toronto, one nested in the intersection of health and law, where I would be conducting legal research and policy advocacy for a segment of the population that, I came to realize, I didn’t know at all.

I had never met someone who was openly HIV+. Further, the only two public figures with HIV/AIDS that I could bring to mind were Freddy Mercury and Magic Johnson, a pretty short list. Fortunately, my first week at the Legal Network coincided with their annual symposium, where I met activists, mobilizers, lawyers, volunteers, and many individuals living with HIV. It became clear that while I would be working in a familiar city, everything about this job was going to feel new.

I was prepared to feel appalled at the human rights abuses of people living with HIV abroad, but as I began my first legal research projects, I realized there were many elements of living with HIV in Canada that were worse than I thought. After Russia and the United States, Canada is one of the most aggressive prosecutors of people living with HIV. Worse still, the criminal charge in non-disclosure cases is aggravated sexual assault, one of the most serious offences in the Criminal Code. Past interns have written thorough blogs about disclosure, which is when someone is legally required to disclose their HIV status prior to sexual activity. Advocates such as the Legal Network argue that the criminal justice response is heavy handed and does not reflect scientific advances regarding HIV transmission risks. Studies show that maintaining an undetectable viral load through HIV medication makes the risk of transmitting the virus effectively non-existent.

The publication’s cover photo is from the 1990 Montreal Sex Garage riots.

A few years ago, Canada’s criminal justice approach to disclosure sparked an underground, anonymous, grassroots publication titled How to Have Sex in a Police State. The publication surfaced online in 2015 and provides tips on how a person can access support from the health care system without triggering surveillance from the criminal justice system in the process. The fact that these two systems are interconnected is a huge problem; people should not have to choose between health care and privacy. Since violence, stigma, and discrimination are a reality for many people living with HIV, the publication encourages individuals to protect themselves from potential criminal charges, for example by having proof of their HIV status disclosure (such as screenshots of text messages) or even going so far as having a signed waiver for sexual partners.

There’s an often-used slogan that captures the connection between the health care and criminal justice systems: ‘take the test, risk arrest’. I heard the slogan mentioned a few times during the symposium last month, which made me suspect that the ‘police state’ described in the publication was still a reality for some people living with HIV today, even in large, arguably progressive cities like Toronto. ‘Take the test, risk arrest’ refers to the assumption that whoever is diagnosed with HIV first is presumed to have brought it into the relationship. This misattribution of infection is particularly stigmatizing for vulnerable women whose diagnosis may take place as a result of prenatal care or other routine visits to the doctor. The fear of partner retaliation upon discovering HIV or risking criminal charges related to disclosure can lead vulnerable women to seek prenatal care at very late stages in their pregnancy, to stay in an abusive relationship, or to deter testing.

I haven’t been surprised to see flagrant HIV-related human rights abuses in my international research projects. But the extent to which a segment of the Canadian population has to intentionally protect itself from the criminal justice system on a health matter gives me pause. It troubles me to imagine that in my own city, people living with HIV are, even if unintentionally, treated as a threat from which criminal laws are meant to protect. Are people living with HIV not worthy of protection too? Or an even simpler question: what does criminal law have to do with HIV anyway?  Even when a person’s viral load is undetectable due to medication and therefore untransmittable, their sexual activities are subject to surveillance. Safe sex should be about protecting the health of one’s self and partner, not about protecting one’s self from the long arm of the law.

Trans*clusivity: a call to action

CW: Conversion Therapy & RPDR7 Spoiler
Hi folks, rain & fog have become my new friends in Toronto. - Jeansil Bruyère

Hi folks, rain & fog have become my new friends in Toronto.
– Jeansil Bruyère

We are all born with privileges & barriers. More often than not, we overlook the privilege we benefit from while denouncing the barriers that hinder us. As a good friend of mine once said, privilege is not something we have per se but rather something we don’t have; it is a lack of barriers that spare us from stigma and discrimination. I am French-Canadian, biracial, male, gay, atheist of Muslim and Catholic decent, enrolled in legal studies at McGill University. Until recently, I never realized that being cisgendered could be added to that list of privileges and barriers that compose my identity. Cis-ness is a privilege because I do not face barriers to the same extent as lived by the trans*  members of our LGBTQ community: health, employment, immigration & education (just to name a few). In light of my cis-privilege and field of interest (i.e. human rights law), I am taking the platform offered by the McGill Centre of Legal Pluralism and Human Rights to call all other human rights activists to be more trans* inclusive, or trans*clusive as I titled this blog post.
Toronto City Hall proclamation of the international day against homophobia transphobia and biphobia.

Mayor John Tory proclaimed May 17th of the International Day Against Homophobia, Transphobia & Biphobia.

Within a week of being at the Canadian HIV/AIDS Network (the Network), I was given the opportunity to meet mayor John Tory and Queer Ontario New Democrat MPP Rev. Dr. Cheri DiNovo at a City Hall Proclamation declaring May 17th, International Day Against Homophobia, Transphobia and Biphobia. Notably, DiNovo introduced Bill 77, the “Affirming Sexual Orientation and Gender Identity Act” and is urging Kathleen Wynne to pass it by Pride in the upcoming weeks. The Act would prohibit conversion therapy for LGBTQ children, and prohibit doctors from billing Ontario Health Insurance for conversion therapy conducted on any patient. That said, Ontario isn’t the only province with groundbreaking trans* developments. Only a few days later in Quebec, amazing activists such as Gabrielle Bouchard, Samuel Singer and Jean-Sébastien Sauvé were speaking to the Committee on Institutions which included the Minister of Justice at the National Assembly at special consultations and public hearings on the draft regulation concerning the Regulation respecting change of name and of other particulars of civil status for transsexual and transgender persons. An issue of great concern for volunteering at the Clinique Juridique Trans* Legal Clinic and many trans* people living in Quebec.

Clinique Juridique Trans* Legal Network held a Barreau du Québec continuing education workshop this past May.

Clinique Juridique Trans* Legal Network held a Barreau du Québec continuing education workshop this past May.

Zomming out to what western-mainstream culture has been depicting of trans* folk, who can omit to mention Caitlin Jenner’s Vanity Fair cover, following in the footsteps of more mainstream trans* icons such as Lavern Cox (Time) and potentially Aydian Dowling (Men’s Health Ultimate Guy Search). Be it the finale of RuPaul’s Drag Race (spoiler alert) crowning Violet Chachki as the next Drag Superstar or the fact that I actually live above a drag-crossdressing shop (wildside.org) with the most eclectic and amazing landlady in all of Toronto, LGBTQ developments are in my face and have been garnering more attention than ever. However, more coverage does not mean more understanding and awareness. For this very reason, I call my colleagues within the legal and human rights fields to acknowledge cis-normativity and fight back: attend workshops, get informed.
Yes, my front yard has a bedazzled motorcycle & my living room is an art gallery.

Yes, my front yard has a bedazzled motorcycle & my living room is indeed an art gallery.

In closing, within the various projects assigned by the Network, I have taken the time to integrate trans* oriented statistics and concerns. Did you know that the HIV prevalence rate, (i.e. the proportion of people in a population who have a particular disease at a specified point in time) among male-to-female transgender persons in North America is at 27.7%? Sorry, no Canadian-specific data is available and this is part of the problem. A problem that we can solved by being part of the trans* agenda and working towards a more inclusive environment for all. Whether it be policy analysis, academic research or just plain day-to-day conversation – keep in mind that we live in a heteronormative & cisnormative world where we often forget the benefits and hindrances of our privileges and barriers. Wouldn’t it be lovely to be part of a society where our children can live their lives with dignity and respect be they trans* or cisgendered/seropositive or seronegative/LGBTQ or allies. Honoured to be a jurist of the LGBTQ community, I truly believe that we have a duty to future generations to be more trans*clusive.

A glimpse into my first day as a Policy Analyst Intern at the Canadian HIV/AIDS Legal Network.

A glimpse into my first day as a Policy Analyst Intern at the Canadian HIV/AIDS Legal Network.

Soit la folie, soit la femme décède

Alexandra BornacBy Alexandra Bornac

The first two weeks of my internship revolved around preparing a proposal for UN Women and working along with the CONGEH team for the organisation of an advocacy workshop aimed at raising awareness amidst institutional actors. CONGEH is a conglomerate of smaller NGOs that work under the platform of gender – habitat – HIV/AIDS. Its specific goals makes CONGEH not only a network of NGOs with an interesting view but also endows it with the daunting, yet successfully accomplished task of answering all the questions with a high degree of hands-on knowledge, specificity and accuracy.

The workshop was focused not only on raising awareness, but also on obtaining a clear set of answers, recommendations and solutions with regards to the stigmatisation of women and the violation of their rights. Undoubtedly, the presence of representatives of different ministries was more than a prerequisite, while the presence of members of CONGEH and other NGOs was the trigger.

Regardless of the research I conducted and the statistics that I familiarized myself with during the preparation period, it was during the workshop where I quietly, mindfully and critically learned more than simple numbers or a list of well-known causes. The clash of customary and state law seems to favour the traditional views and practices of the Cameroonian communities. Chiefs of different under-developed areas of Yaoundé presented the reality of these customs: women are discriminated, widows can be accused of their husbands’ death and words such as property and succession are rarely, or almost never, associated with women. Yet, the favouring does not necessarily spur out of a preference for customary law. It is the lack of knowledge of their rights and, thus, their non-claiming that put women in such a precarious situation.

Now, of course, the conversation also took the direction of religion, as Cameroon is a country with a fear of God, regardless whether the God is catholic, orthodox, Muslim, etc. English and French are the official languages for the purpose of standardizing, but there are other 250 languages spoken in Cameroon. Cameroon is called Africa in Miniature not only for its landscape but also for its mix of cultures. We usually say there are as many opinions as there are men. This is true.

The law is meant to help bring about these changes in a uniform, healthy and non-violent way. The government is expected to successfully develop tools in order to encourage these changes. Everybody agreed that the law has been drafted in such a way as to encourage the promotion of equal rights of men and women. Yet, the participants strongly disagreed on what the government through its ministries and projects has done up until now and what tools they offer for these women. Lack of knowledge is prevalent in Cameroon. While I have not had the chance of leaving the heart of Yaoundé, members of other NGOs insisted on the lack of resources offered to these women. Women suffering of HIV/AIDS do not acknowledge and have no means of reaching the places where the government put in place special areas to help. Nonetheless, while these tools are thoughtful and meant to only do well, their application in real life situations has not been done effectively. Their translation into practice causes most of the problems and the dissatisfaction of the people is immense.

CONGEH has conducted its own study on 2000 women suffering of HIV/AIDS in the communities of Yaoundé and has observed that stigmatisation, lack of knowledge of their rights, violation of their rights to property, succession and housing, all lead to unsanitary life conditions as these women are abandoned, kicked out of their homes or left in unimaginable living conditions that do nothing but worsen their already weak situation. While infected men choose to abandon their homes, women are removed from the households and find themselves homeless or turn into squatters. Living a normal life while suffering of HIV/AIDS is no longer a dream, but it demands access to treatment, clean water and decent living conditions: the lack thereof leading to a fast deterioration of both their physical and mental health. The stigmatisation of those suffering of HIV/AIDS knows no gender discrimination, but the acute predisposition of women to being discriminated with regards to their rights to ownership leads to a casting aside with repercussions unbeknownst to our imagination.

Education of the society, modernisation and dismissal of the discriminating practices were in the minds and on the lips every workshop participant.  If modernisation is the goal, and the removal of discriminating practices is the beginning, how will that work? What does modernisation actually entail? What effect will it have on all the Cameroonian customs? As newer generations are born changes are brought. Yet, each community wants to maintain its culture, while some even refuse compromises. Of course, the removal of discriminating practices is ideal and it is suggested, but how fast will it be done? And, do fast solutions necessarily mean realistic measures?

As I am typing this blog entry at my desk, I realize it takes more than a workshop and an exchange of words to draw the real picture. These are numbers, opinions and well-known causes that have yet to been efficiently tackled. Modernisation is thrown around as a word that fills no gap, heals no wound and carries no weight. I look forward to the days where I will sit around the table facing the women we have been talking about. Their stories, their sorrows, their concerns will teach me even more than the intense debate did. And, hopefully, with time, madness or death will no longer exist as options.

Criminalization of HIV status non-disclosure: what’s the issue?

by Jihyun Rosel Kim 

When people hear the question “should non-disclosure of HIV status be a criminal offence?” their usual response is, “well of course! We shouldn’t hurt people.” When all we see and hear about HIV in the news is so sensationalized to the point that we equate HIV with death and people with HIV with predators, that response is understandable.

The landmark case involving HIV status disclosure was R. v. Cuerrier.[1] In the case, the Supreme Court established that failure to disclose one’s HIV status could lead to a charge of aggravated sexual assault, which can lead to a maximum of a life sentence in prison. Justice Cory for the majority stated that non-disclosure of HIV status that would lead to a “significant risk of harm” would constitute an aggravated sexual assault. However, he never clarified what exactly would amount to “significant risk,” despite the differing levels of risk of transmission in diverse sexual activities. Justice Cory did, however, stated in an obiter that certain actions such as wearing a condom might be seen as mitigating the “significant risk.”

Since the Cuerrier decision in 1998, science has come a long way for HIV/AIDS. Moreover, research has shown that transmission risks for HIV are generally low, and differ significantly depending on the activity. Generally, the transmission rate of HIV during unprotected vaginal intercourse is 0.1% per act (with recent analysis suggesting a more accurate rate would be 0.08% per act).[2] If a person has an undetectable viral load (below 50 copies of HIV virus per mililitre of blood), the risk of infection is about 1 in 10,000 for unprotected sex acts.[3] Recent studies also suggest that antiretroviral therapy can reduce transmission up to 96% in heterosexual couples, where one partner is HIV-positive and the other is HIV-negative.[4]

Yet, Canadian courts have not kept up with scientific evidence. Due to the unclear guidelines regarding what exactly constitutes “significant risk,” courts have continued to send mixed messages regarding legal duty to disclose one’s status. Some courts have held that a person who did not disclose to a partner but wore a condom is not criminally liable. Other courts have held the opposite view by charging a defendant with sexual assault for non-disclosure without considering the kind of sexual activities.

The conflicting messages from the courts seriously undermine and threaten the rights of people living with HIV/AIDS (PLHs). How can PLHs truly prove that they disclosed to a partner – should they require witnesses or signatures? Should activities such as oral sex and mutual masturbation, which bears almost zero risk of transmission, bear the possibility of a criminal charge, when almost no activity in our lives are truly risk-free? What about the issue of partners, who can blackmail and even abuse their HIV-positive partners by threatening to charge them?

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Investigating “access” to HIV/AIDS treatment

My first two weeks at the Canadian HIV-AIDS Legal Network have felt like an intense and stimulating crash course. One of my first tasks was to gather information on access to HIV/AIDS treatment to help a policy analyst prepare for a guest lecture. The policy analyst also asked me to go beyond the numbers and find any factors that may complicate the numbers that I found. By the time I finished the research, I came out questioning the word “access” altogether. Here were my findings:

    • At the end of 2009, 36% (about 5.2 million) of the 15 million people in need in low- and middle-income countries were receiving antiretroviral (ARV) therapy, which is used to suppress the HIV virus.[1]
    • Only 21 countries provide data on people with HIV who inject drugs.  Out of the 21 countries, only 9 countries had a treatment rate of 10% for this demographic. [1]
    • Some countries may have initiatives and programs that sound great and accessible, but the whole picture is always more complicated. For example, the National AIDS Control Organization (NACO) provides free first-line ARV treatment in India. However, accessing treatment for sex workers is still difficult due to the negative disposition of health workers. One sex worker recalled to the researchers: “If I am going to be in a condition to take tablets [ART], I will not go there because they denigrate us.”[2]
    • Migrants also face additional barriers to HIV/AIDS treatment, due to strict immigration policies. For example, EU’s Return Directive, established in 2008 and enforced in 2010, enables a member country to detain migrants up to six months.[3] This may make public health interventions regarding HIV/AIDS to migrants more difficult.

 If these facts sound a bit foreign and removed, there is also the issue of differing coverage of ARV drugs by province that can cause mobility issues. Some provincial health care systems don’t cover newer form of drugs. Quebec won’t reimburse claimants who buy medication out-of-province.[4]

“Access” has become one of the buzzwords of human rights law. In many reports I read, there are often goals or objectives that have to do with improving or increasing access to certain services. In our efforts to improve access, we must not only focus on the numbers, but also focus on who gets to access services or programs as well, and how social structures and stigmas limit the effectiveness of certain programs.

 

—–

[1] UNAIDS, Report on the Global AIDS Epidemic, 2010.

[2] V. Chakrapani et al. Barriers to free antiretroviral treatment access for female sex workers in Chennai, India,” AIDS Patient Care and STDs 23 (11) (2009): pp. 973-980 at 976.

[3] Directive 2008/115/EC, European Union, art. 15.5. (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:PDF)

[4] Deborah Yoong, “Access and Coverage of HIV Medications across Canada”, published on Toronto General Hospital’s website: http://www.hivclinic.ca/main/drugs_reimbuse_files/Provincial%20Coverage%20of%20HIV%20medications.pdf)

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