At issue was not whether testing for HIV in the military was discriminatory, but rather the consequences of the testing policy.
Percentage of countries that have HIV-specific restrictions on entry, stay or residence
a complaint with the Pretoria High Court on behalf of the union and three HIV-positive soldiers. At issue was not whether testing for HIV in the military was discriminatory, but rather the consequences of the testing policy. The complaint objected to the blanket denial of employment, foreign deployment and promotion of people living with HIV in the SANDF and argued that an individual health assessment for each soldier should determine whether he or she was fit for work. The case came before the court on 15 May 2008. After the close of the applicants’ oral argument on the first day of the hearing, the government withdrew its opposition. The parties reached an agreement, which was made into an ‘order of court’. The order declared that failing to employ, promote or deploy overseas soldiers solely on the basis of a positive HIV test was unconstitutional. As a result of this landmark court case, South Africa’s military amended its policy on health classifications to take into account the actual state of fitness of each SANDF employee. In October 2009, Sgt Mthethwa was deployed to Sudan, where he worked as an operations clerk. He refused a desk job and insisted that he would join other soldiers on long-distance patrols. “I run 4 kilometers a day. I don’t want to give the impression that I am different. You know you can do everything and anything. You are not powerless just because you are living with HIV,” said Sgt Mthethwa.
While some militaries are revising their HIV policies, there is a growing trend for countries to enact punitive laws aimed at people living with HIV and key populations at higher risk of HIV infection. More than 50 countries broadly criminalize HIV transmission. And nearly 80 countries have laws that criminalize men who have sex with men. UNAIDS has advocated that such punitive laws can create an environment of fear, often preventing men who have sex with men from finding out what they need to know to reduce their risk of HIV, to obtain and use condoms, or to access treatment if living with HIV. As Sgt Mthethwa’s case shows, courts have helped to improve the legal environment and to protect the rights of people living with or at higher risk of HIV. In July 2009, the Delhi High Court annulled a 150-year-old law criminalizing “carnal intercourse against the order of nature”, which banned sex between men in India. There are around 50 countries with travel restrictions on people living with HIV, although the USA and China removed such restrictions in 2010. For women, being HIV-positive can be a double burden. A stark example of the kind of gender-specific human rights violation that women face is their forced sterilization if found to be HIVpositive. In Namibia, a study conducted in 2008 by the International Community of Women Living with HIV/AIDS and the Namibian Legal Assistance Centre found that nearly one fifth of the 230 HIV-positive women they interviewed
Percentage of countries that have laws that specifically criminalize HIV transmission or exposure
Percentage of countries that have laws that criminalize same-sex activities between consenting adults
No data 104 | OUTLOOK | www.unaids.org
No
Yes
Contradictory
Death penalty