Health Care Access for Sexual Minorities in Uganda

More than a half-million people with HIV or AIDS live within Uganda’s borders. While Uganda has received international attention for its government-run HIV/AIDS program, its efforts have not effectively served the health care needs of sexual minorities.

There is a need for Ugandan programs that aim to increase health care access for sex workers, gays, lesbians, bisexuals and transgendered persons. Not only are there significant gaps in the country’s existing initiatives, but deeply rooted discrimination against members of these groups severely limits their ability to utilize options that are available to the general population as well.

In 2004, the Ugandan government revised and updated its national HIV/AIDS program. The Uganda AIDS Commission released an official report outlining a plan to develop and implement initiatives that “contribute toward our common target of delivering equitable, timely and quality HIV/AIDS services to the nation.” The report did not contain any strategies for ensuring sexual minorities would have access to HIV/AIDS education or health care. In fact, the report’s only mention of gay, lesbian, bisexual or transgendered persons was one sentence stating that the extent of HIV transmission through male-to-male sexual contact was unknown.

It is not surprising that the Ugandan government has been unwilling to directly address sexual minority health care needs. Doing so would run contrary to a state-sponsored policy of discrimination. In Uganda, same-sex sexual relations are illegal. Prison sentences for such behavior can range from seven years to life imprisonment. These penalties were most recently updated by the Ugandan Parliament in 1990 and still have popular support. In July 2005, the Ugandan Parliament overwhelmingly approved a constitutional amendment outlawing same-sex marriage. Human rights organizations have expressed concern that the new law will exacerbate existing prejudices and hostility toward members of the lesbian, gay, bisexual and transgender community.

Discrimination against Ugandan sexual minorities has been widely documented. These are examples of some incidences which occurred in 2004 and 2005:

These incidents, along with others, have created a climate that encourages health care providers to turn away members of sexual minority groups. Even when providers resist succumbing to their fear that they will be targeted for aiding these individuals, the care they are able to provide is compromised so long as the government and its partner NGOs refuse to acknowledge these parties’ special needs. In spite of the Ugandan government’s extreme stance on homosexuality, groups that work to improve sexual minorities’ access to health care should be allowed to operate.

Health Equity Project and International Law

The Health Equity Project (HEP) mission—to advance healthcare as a basic human right by ensuring that marginalized populations have access to healthcare—is rooted in established international law. International law protects marginalized populations with HIV/AIDS and other illnesses. These legal protections explicitly extend to gay, lesbian, bisexual, and transgendered individuals, and affirms they have the right to quality healthcare. Various covenants, interpretive statements, and declarations promulgated by the United Nations set forth that persons, such as those that HEP helps, shall not be discriminated against on the basis of sexual orientation or health status. They call on nations to end such discrimination and to extend the rights to healthcare which HEP advocates. As a member of the United Nations, and a signatory of these treaties, Uganda is bound by international law to uphold these principles.

The International Covenant on Civil and Political Rights (ICCPR), which Uganda has ratified, directly addresses basic human rights, and nations’ obligations to defend these rights. The United Nations Human Rights Committee has interpreted the ICCPR as granting sexual minorities the rights to equality, freedom from non-discrimination, liberty, and security of the person. Further, it has found the ICCPR to protect sexual minorities from cruel, inhuman or degrading punishment.

Article 2.1 of the ICCPR affirms the equality of all people:

Each State Party to the [ICCPR] undertakes to respect and to ensure to all individuals within its territory and subject to it jurisdiction the rights recognized in the [ICCPR], without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Moreover, with respect to freedom from discrimination, Article 26 of the ICCPR states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In a case that came before the Human Rights Committee in 1994, the Committee held that sexual orientation is a “status” protected under the ICCPR from discrimination, finding that the reference to ‘sex’ in Articles 2.1 and 26 includes sexual orientation. It has also declared that Article 26 broadly “prohibits discrimination…in any field regulated and protected by the public authorities,” which, in most countries, includes the healthcare sector. In Uganda, this would include the many programs coordinated through the state-run Uganda AIDS Commission.

Article 7 of the ICCPR states that “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” The U.N. Special Rapporteur on Torture has noted that sexual minorities are especially vulnerable with respect to these types of mistreatment, even though they are protected from such treatment under the ICCPR. In particular it is noted that sexual minorities may not seek medical treatment for physical harm due to such mistreatment because they may fear further victimization at state hospitals.

The International Covenant on Economic, Social, and Cultural Rights (ICESCR), which Uganda has ratified, recognizes that healthcare is a basic human right. Article 12.1 affirms “the right of everyone to the highest attainable standard of physical and mental health.” The U.N. Committee on Economic, Social, and Cultural Rights has interpreted this article to mean that nations may not discriminate on the basis of sexual orientation in ensuring that all its citizens can exercise this right. The ICESCR proscribes all forms of discrimination that unfairly limit access to healthcare and limit the means and entitlements for the procurement of healthcare on the grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS) sexual orientation and civil, political, or other status.

The Committee has also emphasized that the right to health includes “access to health-related education and information, including on sexual health.” It has observed that the ability to access information “includes the right to seek, receive, and impart information and ideas concerning health issues.” The Committee has called on states to refrain from “censoring health information targeted at vulnerable individuals and groups, in the context of HIV/AIDS or other diseases. It has noted that governments violate the right to health when they interfere with or penalize the efforts of non-governmental organizations and other persons to address health issues, or to engage in outreach on such issues to affected populations.

In 2001, the United Nations promulgated its Declaration of Commitment on HIV/AIDS, which, while lacking the force of law, is a persuasive source that calls for increased access to healthcare for HIV/AIDS-infected persons and those at risk for infection, as well as an end to discrimination on the basis of HIV/AIDS status. The Declaration makes the following observations, which underscore the urgency and importance of HEP’s work:

The Declaration also calls on nations to eliminate discrimination and marginalization based on HIV/AIDS status and to enact, strengthen and enforce legislation, regulations and other measures to eliminate all forms of discrimination against people living with HIV/AIDS and members of vulnerable groups. It appeals to nations to “ensure access to education, inheritance, employment, health care, social and health services, prevention, support and treatment, information and legal protection” and to “develop strategies to combat stigma and social exclusion connected with the epidemic.”

Conclusion

International law specifies that all individuals are entitled to a basic level of healthcare. It requires that nations ensure this right to all persons, without discriminating against sexual minorities and other groups. The Health Equity Project Healthcare Program for Sexual Minorities aims to ensure that all Ugandans have access to basic healthcare needs by filling a substantial gap in the country’s existing health services. Therefore, any action by the Ugandan government to prevent initiatives that target gay, lesbian, bisexual, and transgendered persons directly contravenes established international law, and specific treaties that Uganda has signed. There is a need for healthcare programs that focus on sexual minorities in Uganda and established, international legal support for their existence.

 

 

U.S. Department of State, Office of the U.S. Global AIDS Coordinator, Uganda Country Profile (Aug. 12, 2005), available at http://www.state.gov/s/gac/rl/cp/50808.htm.

Uganda AIDS Commission, The Revised National Strategic Framework for HIV/AIDS Activities in Uganda: 2003/04 – 2005/06 (February 2004) at p. 7, available at http://www.aidsuganda.org/pdf/Revised_National_Strategic_Framework_for_HIV_2003-06.pdf.

See Human Rights Watch, Uganda: Same Sex Marriage Ban Deepens Repression (Jul. 12, 2005), available athttp://hrw.org/english/docs/2005/07/12/uganda11307_txt.htm (Same Sex Marriage Ban Deepens Repression).

Afrol News, Fears of Enhanced Gay Repression in Africa (Jul. 11, 2005), available at http://www.afrol.com/articles/16744.

Amnesty International, Uganda: Gay and lesbian rights activists intimidated, and same sex marriage criminalised (Aug. 3, 2005), available athttp://www.amnesty.org.uk/news/press/16329.shtml.

Id.

Afrol News, Persecution of gays intensifies in Uganda (Dec. 1, 2004), available at http://www.afrol.com/articles/14993.

Id., See also Same Sex Marriage Ban Deepens Repression.

See International Covenant on Civil and Political Rights (“ICCPR”); International Covenant on Economic, Social, and Cultural Rights {‘ICESCR”); and G.A. Res s-26/2 U.N. GAOR (“Declaration of Commitment on HIV/AIDS”).

Nicholas Toonen v. Australia, Human Rights Committee, 50 th Sess., Case no. 488/1992, U.N. Doc. CCPR/c/50/D/488/1992. at 8.7.

“General Comment 18: Non-discrimination,” Human Rights Committee, 37 th Session, 1989 UN Doc. HRI/GEN/39/rev.1 p. 26.

“Report of the Special Rapporteur on the question of torture and other cruel, inhuman, and degrading treatment or punishment,” U.N. General Assembly, UN Doc A/56/156, 3 July 2001.

Id.

“General Comment 14: The right to the highest attainable standard of health.” Committee on Economic, Social, and Cultural Rights, 22 nd Session, UN Doc E/C.12/2000/4, 11/08/2000, at 18-19.

Id.

Declaration of Commitment on HIV/AIDS.

Id.