to ensure the human rights of persons affected by HIV/AIDS. Public health considerations must also be taken into account since the stigmatization of, or discrimination against, a person who carries the virus can lead to reluctance to go for medical controls, which creates difficulties for preventing infection.140 When allegations of HIV-related discrimination come before the courts, judges and magistrates have the opportunity to do more than just adjudicate the issue in the case at bar, providing redress to the victim if appropriate. The responses of judges and magistrates to cases of HIV-related discrimination are critical pronouncements, with implications for the rights of people living with HIV and for the overall response to the epidemic. By correcting inaccurate information about HIV transmission, renouncing stigma and clearing the way for people living with HIV to have equal access to opportunities and services, courts can reduce barriers to HIV prevention, testing and treatment. They can help break the cycle of marginalisation associated with HIV, and they can help prevent future rights violations.
Understanding HIV-related discrimination Arbitrary discrimination141 against people living with HIV, or suspected of it, can have three devastating public health consequences: 1. A rbitrary discrimination tends to instil fear and intolerance. It creates a climate that interferes with effective prevention by discouraging individuals from coming forward for testing and from seeking information on how to protect themselves and others, thus deepening the adverse impact of living with HIV. Since the effectiveness of a prevention policy depends on reaching those who are at risk and encouraging them to adopt safe behaviour, it is essential to combat the discrimination that drives people away from these types of programmes. 2. A rbitrary discrimination may engender a dangerous complacency in individuals and groups who are not targeted, and who therefore assume that they are not at risk. For example, if a State treats HIV and AIDS as a problem related to foreigners visiting or residing in the country, it may increase the vulnerability of its own citizens. 3. A rbitrary discrimination against people living with HIV, or suspected of it, tends to exacerbate existing forms of marginalisation, such as racism, gender-based discrimination, homelessness, and discrimination against children. It deepens the already-increased vulnerability of marginalised groups to HIV infection, and obstructs their ability to deal with the impact of their own infection and/or infection in their family or associates. —UNAIDS, Protocol for the identification of discrimination against people living with HIV142
Common fact patterns coming before the courts Much of the case law looking specifically at HIV-related discrimination deals with discrimination in the context of employment (including pre-employment testing to exclude HIV-positive job applicants and dismissal of existing employees when it is discovered that they are HIV-positive). Perhaps this is not surprising, given that employment discrimination is quite obvious and deliberate, and that it is most often completely without justification. However, courts should be alive to the discrimination that people living with HIV experience in other realms of their lives, which although it may be less evident, can be equally harmful. For example: ƒƒ When HIV-positive women are denied family-planning services or are given delayed or substandard care in relation to labour and delivery, the results can be both humiliating for the women and potentially life-threatening for both the women and their infants.143
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Judging the epidemic