Larry’s View

Five Convictions in Fear-Driven Crackdown a Blow to Health and Justice

Cairo, May 29, 2008

A Cairo appeals court’s decision to uphold the sentences imposed on five men jailed in a crackdown on people living with HIV/AIDS underscores the Egyptian government’s dangerous indifference to public health and justice, Human Rights Watch said today. The May 28 ruling upheld the maximum three-year prison terms for each of the five, following a months-long campaign targeting men with HIV/AIDS. A total of nine men have been sentenced to prison so far.

“To send these men to prison because of their HIV status is inhuman and unjust,” said Joe Amon, director of the HIV/AIDS program at Human Rights Watch. “Police, prosecutors, and doctors have already abused them and violated their most basic rights, and now fear has trumped justice in a court of law.”

On May 7, a court of first instance in Cairo had convicted the five men on charges of “habitual practice of debauchery,” a phrase that in Egyptian law encompasses consensual sexual acts between men.

Before their first trial, a prosecutor told the men’s lawyer that they should not be allowed to “roam the streets freely” because the government considered them “a danger to public health.”

Since October 2007, Cairo police have arrested a dozen men on suspicion of being HIV-positive. The crackdown began when one man, stopped on the street during an altercation, told officers he was HIV-positive. Police arrested him and the man with him, beat and abused them, and interrogated them to name sexual contacts. Police then began picking up others based on information from those interrogations.

On January 14, 2008, a Cairo court sentenced four of those men to one-year prison terms on “debauchery” charges. An appeals court upheld those sentences on February 2. The present five defendants were referred for trial separately in March. Authorities released three other men, who tested negative for HIV, without charge, after months in detention.

While the 12 were in detention, doctors from the Ministry of Health forcibly subjected all of them to HIV tests without their consent. Doctors from Egypt’s Forensic Medical Authority performed abusive anal examinations on the men to “prove” they had had sex with other men. Human Rights Watch has documented that such examinations conducted in detention constitute torture. Police and guards beat several of the men in detention. A prosecutor told one of the men that he had tested positive for HIV by saying, “People like you should be burnt alive. You do not deserve to live.”

The prisoners who tested HIV-positive were chained to their beds in hospitals for months. After a local and international outcry, the Ministry of Health ordered the men unchained on February 25.

“Putting these men in prison serves neither justice nor public health,” Amon said. “The Egyptian government and the country’s medical profession must act to end this campaign of intolerance.”

Posters in Lambda offices, Turkey
Lambda’s are the only gay-group headquarters in Istanbul

A leading Turkish gay rights group will fight a court ruling that ordered it be closed for “violating morality”.

Lambda, which has become increasingly vocal in calling for gay, lesbian and transgender rights in Turkey, says it will appeal against the decision.

Homosexuality is not illegal in Turkey, but many gay and transgender people complain of discrimination.

A report last week by Human Rights Watch highlighted extensive harassment and called for legal reforms.

The court said the group must be closed, following a complaint, initiated by the Istanbul governor’s office, that Lambda violated laws on the protection of the family, and an article banning bodies “with objectives that violate law and morality”.

“This is a mistake and we hope that the Appeals Court will correct it,” the group’s lawyer, Firat Soyle, told the AFP news agency.

The group can continue to operate in the mean time.

Transgender woman in Turkey
They dragged me into the basement of the police station and they hit me in the face
Transgender woman, Istanbul

Facing hate crime in Turkey

Mr Soyle said a prosecutor threw out a similar application against another gay rights advocacy group, KAOS-GL in 2005, saying that homosexuality does not amount to immorality.

‘Visibility breeds violence’

Lambda says the state wants to pressure it into silence, pointing to a police raid on its offices last month.

Gay, lesbian and transgender people have been becoming more visible in Turkey - last Saturday the first ever gay rights march was held in the capital, Ankara.

But, they say, the more visible they are, the more they are encountering hostility in what remains a conservative society.

“Things were tough before, but they’re getting worse,” Demet, who is transgender, told the BBC.

“One thing we have learned is that visibility breeds violence,” says Scott Long, of Human Rights Watch.

May 21, 2008

By Mayur Suresh

On Wednesday, the Delhi High Court will begin final arguments in the constitutional challenge to Section 377 of the Indian Penal Code, 1860, which criminalises ‘carnal intercourse against the order of nature’. Filed in 2001 by the Naz Foundation, a NGO working on HIV/AIDS and sexual health issues, the petition points to that the provision criminalises private sexual acts between consenting adult men. Naz Foundation is broadly arguing that this provision is hampering efforts at HIV/AIDS prevention and treatment since it drives gay men underground, and that it violates the constitutionally protected rights of equality and privacy.

The petition has attracted its fair share of attention. In 2003, an association of AIDS-denialists, The Joint Action Council, Kannur, made them selves parties to the case and in their written submissions argued that there is no evidence that HIV/AIDS exists and that it is spread through sexual activity. Soon after, Mr. B.P. Singhal, a member of Parliament from the far-right Bharatiya Janata Party entered the fray and in his written petition before the Court argued that homosexuality was unnatural and against Indian culture.

In October 2007, a coalition of human rights, LGBT rights, women’s rights and child rights organisations, known collectively as ‘Voices Against 377’ became a party to the case. They argued that Section 377, while rarely used in actual prosecutions, is used to target lesbian, gay, bisexual and transgendered people, and that sexual minorities face discrimination, harassment, blackmail, violence, rape and even murder as a result of this law.

Oral Hearings
Seven years after it was filed, final oral arguments began on Monday, May 19 before Justices Sikri and Midha of the Delhi High Court.

The proceedings began on an amusing note with the federal Home Ministry upholding the law and the federal Health and Family Welfare Ministry all but supporting Naz Foundation against Section 377. The Home Ministry, in its affidavit, says the law is right as Indians largely disapprove of homosexuality and that the law should continue as a deterrent for such kind of “immoral” acts.

The Ministry of Health and Family Welfare however, in its affidavit, says it is against enforcement of Section 377 as it pushes homosexual men underground, hampering efforts to control the spread of HIV/AIDS among this high risk population.

Monica Garg, the lawyer for the federal government, told an amused Court that she would argue the brief of the Home Ministry but also draw from arguments made by the Health and Family Welfare Ministry.

Anand Grover, lawyer for the Naz Foundation, introduced the case to Justices Sikri and Midha. Before a packed courtroom, he set out the structure of his case and said that the Naz Foundation challenges the constitutional validity of Section 377, on the grounds that it violated certain fundamental rights guaranteed under the Indian Constitution, namely Articles 14 (equality), 15 (non-discrimination), 19 (freedom of speech and expression) and 21 (life and liberty).

The anti-sodomy law presently on the statute books in India, was taken by the British to all its colonies. Mr Grover pointed out however, that not only has the law been repealed or struck down in many of its former colonial possessions, like Canada, Australia and more recently Fiji and Hong Kong, but was also repealed by the United Kingdom, the birth place of the law, more than 40 years ago. He began his arguments by drawing upon the history of the section 377 and traced it back to biblical injunctions against buggery, and which found expression in British law as the ‘vice to horrible to be named.’

The apparent disgust with even naming or describing sodomy, is similarly expressed by Lord Macaulay, who drafted the provisions of the Indian Penal Code in the middle of the nineteenth century. He said that the provisions “relate to offences respecting which it is desirable that as little as possible be said… we are unwilling to insert either in the text or in the notes anything which could give rise to public discussion on this revolting subject, as we are decidedly of the opinion that the injury which could be done to the morals of the community by such discussion would more than compensate for any benefits which might be derived from legislative measures framed with greatest precision.”
Mr Grover, stated that it is this refusal to define the offence clearly is what rendered the provision unconstitutional. The offence criminalises ‘carnal intercourse against the order of nature’ and he argued that it is not clear, on the face of it, of what this means. He argued that the section 377’s vagueness runs counter to any basic principle of modern criminal and constititonal law that a penal law must be clear and precise and everyone should know exactly what the law penalises. In its 148-year history, there have been a few reported cases and even in those cases there has been considerable debate on what sexual acts the section covered.

He further argued that the law was unconstitutional because it did not take into account elements of consent. He said that the law was problematic particularly because it criminalised homosexual acts between adults even where the people involved consented to these acts.

He then referred to the Wolfenden Committee report of the United Kingdom, which recommended the repeal of the British sodomy laws. Relying upon the point in that report that the enforcement of morals on acts committed in private was not the domain and proper function of criminal law, he stated that the very same question now presented itself before the Delhi High.

Mr Grover is expected to continue his oral arguments till early next week. With Court holidays starting at the end of June for a month, a decision is not expected within the immediate future. The Court adjourned the matter and set the next date of hearing on May 21.

Mayur Suresh is a lawyer in New Delhi. He will continue to report on the case.

May 16, 2008

Lesbian talkshow host Ellen DeGeneres and her long-time partner Portia de Rossi are among those planning on wedding bells, as the California Supreme Court overturned the ban on same-sex marriage on Thursday.

In a 4-3 ruling, the California Supreme Court ruled Thursday that same-sex couples should be permitted to marry, rejecting state marriage laws as discriminatory. The broadly worded decision is also expected to have the effect of invalidating virtually any law that discriminates on the basis of sexual orientation.

Lesbian talkshow host Ellen DeGeneres announced her plans to wed her long-time partner Australian actress Portia de Rossi during the taping of her talk show on Thursday (to be aired on Friday in the US), the day the California Supreme Court announced its ruling.
The long awaited court decision stemmed from San Francisco’s Mayor Gavin Newsom’s highly publicised move to allow same-sex weddings in 2004. Four-thousand gay couples wed before the Supreme Court invalided the marriages and put a halt to the practice after a month.

Two dozen gay couples along with the city and gay rights organisations then sued.

The turn of events spurred a national dialogue over gay rights and a conservative backlash in a presidential election year which resulted in several states passing constitutional amendments banning gay marriage. Today, 27 states have such amendments.

Chief Justice Ronald George, who wrote the 121-page majority opinion, said the state Constitution’s guarantees personal privacy and autonomy which protects “the right of an individual to establish a legally recognised family with the person of one’s choice.”

He said the Constitution “properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples.”

Governor Arnold Schwarzenegger, who previously has vetoed two bills in favour of gay marriage, issued a statement saying he “respects” the decision and “will not support an amendment to the constitution that would overturn” it.

However religious and social conservatives who oppose same-sex marriage said the court had overstepped its bounds and are seeking to override the court ruling in favour of same-sex marriage.

Until that happens, same-sex couples are likely to be able to tie the knot in as little as a month. And unlike Massachusetts - the only other state where same-sex marriage is legal, California has no residency requirement for obtaining a marriage license; meaning gays from around the country are able to go to California to be wed.

Prior to the ruling, California, New Jersey and Vermont have legislation which grants same-sex partners many of the same legal rights as married couples.

The ruling is considered monumental by virtue of the state’s size - 38 million of the total population of 302 million are Californian residents. According to U.S. census figures, there are some 100,000 same-sex couples in California, about a quarter of whom have children.

The California Supreme Court was the first state high court to strike down a law barring interracial marriage in a 1948. The United States Supreme Court did not follow suit until 1967.

January 10, 2008

canada bars organ donations from gay men

By News Editor

Gay activists in Canada have hit out at new regulations that ban gay men who have been sexually active in the past five years from donating their organs for transplant.

According to new Health Canada regulations, transplant programs will no longer be able to harvest organs from the bodies of gay men who were sexually active in the past five years. The new rules, which came into effect without much notice in December, are similar to the regulations for determining who can donate blood although any man who has had sex with a man since 1977 is barred from ever donating blood. The rule is applied in Canada, the United Sates and almost all countries in the world except Spain, Switzerland and Italy. Under the new regulations, groups that are at high risk of transmitting infectious diseases including HIV and hepatitis C and B will no longer be accepted as organ donors. The restrictions will also cover intravenous drug users, commercial sex workers and people who have had tattoos or body piercings in the last 12 months using shared needles, came into effect last month. Numerous gay rights groups and health care experts have criticised the new rules as the Canadian media and various news agencies picked up on the issue this week. The head of Nova Scotia Rainbow Action Project, a gay advocacy group, was quoted as saying that the new rules which exclude any man who has had sex with a man within five years from organ donation may not only send the wrong the message but leave those preparing for live donation in the lurch. “They seem to be making decisions that are bad for the health-care system, that don’t seem to be designed to meet the real needs of risk management and that send the wrong messages about the gay community and about HIV and AIDS,” Kevin Kindred said. “Of course that’s frustrating and of course people find that offensive.” Dr. Philip Berger, head of family and community medicine at St. Michael’s Hospital, told the Toronto Star that the rules are unfair to thousands of conscientious gays. “What about a gay monogamous couple, (Health Canada) is not going to let them donate? It’s ridiculous,” says Berger. “It’s been known for 20 years that the risk factor is not in being gay (but) in risky sexual behaviour.” Other medical experts have warned that the new rules could lead to deaths by shrinking an already small pool of donors. Egale Canada, a gay political lobby organisation, is calling on federal Health Minister Tony Clement to suspend the new policy and for a panel to be appointed to review organ donor rules. “Health Canada should be making sure the regulations stop unsafe organ transplants and not create a situation where healthy viable gay organs will be thrown away,” Helen Kennedy, Egale’s executive director, told Reuters. “It’s perpetuating stereotypes. It bans every gay or bisexual man who potentially is in a monogamous relationship - or other gay men who are vigilant about safe sex practices - from donating organs.”

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This has been a touchy subject for years, especially for those dependent on organ donation and for many a life and death scenario.

What do you think?

Lawrence