UNDP Discussion Paper - Making the Law Work for Women and Girls in the Context of HIV (April 2020)

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In September 2015, 193 United Nations Member States unanimously adopted the 2030 Agenda for Sustainable Development with its 17 Sustainable Development Goals (SDGs). The third sustainable development goal (SDG 3) commits the global community to ensure healthy lives and promote well-being for all at all ages with a target to end the epidemics of AIDS and tuberculosis and to combat hepatitis and other communicable diseases by 2030. SDG 5 commits United Nations Member States to gender equality and the empowerment of women and girls, with specific targets to: end harmful practices, such as child marriage and female genital mutilation; ensure access to sexual and reproductive health; and attain equal rights to economic resources, including property. The 2030 Agenda’s commitment to reach those furthest behind first must acknowledge the intersecting vulnerabilities women and girls face, including women and girls living with HIV and those who belong to HIV key populations – transgender women, female and transgender sex workers, women who use drugs and women in prison.

The Global Commission on HIV and the Law, convened in 2010 with a mandate to generate evidence-informed recommendations to promote effective responses to the HIV epidemic, highlighted the links between enabling legal and policy environments and HIV vulnerability. The final 2012 report of the Global Commission on HIV and the Law, HIV and the Law: Risks, Rights & Health, found that persistent challenges in law presented considerable barriers to women’s and girls’ ability to access HIV and health services. Barriers included gender-biased inheritance and property laws that severely restricted women’s access to and ownership of land thus increasing their economic dependence on men and their vulnerability to violence and HIV. Gender norms - the shared social expectations or informal rules as to how women and men should behave - disadvantage women in the HIV response by discouraging discussion about sexuality and HIV prevention by women; limiting independent decision-making of women and girls related to their sexual and reproductive health; restraining women’s and girls’ access to HIV testing and treatment; or by putting them at risk of discrimination and gender-based violence. Evidence shows that economic dependence on men increases women’s and girls’ vulnerability to HIV by constraining their ability to negotiate the conditions that shape the risk of infection, including sexual abstinence, condom use and multiple partners. The 2018 Supplement to the report of the Global Commission on HIV and the Law noted the continued vulnerability of women and girls to HIV. It highlighted barriers to sexual and reproductive health services for adolescent girls and young women and noted a disproportionate impact of HIV on this group.

Every day, an estimated 460 adolescent girls become infected with HIV and 50 die from AIDS-related illnesses. In sub-Saharan Africa, four of every five new infections among adolescents aged 15–19 are in girls. Laws that sanction violence against women, such as involuntary sterilization of women living with HIV and marital rape, perpetuate gender inequality and negatively affect the HIV response for women and girls. As do criminal laws on HIV non-disclosure, exposure and transmission, sexual orientation, gender identity and expression, choice of work, recreational activities and access to sexual and reproductive health services. Gender-biased and inconsistent laws in plural legal systems often legitimize and perpetuate discrimination, harmful traditional practices and violence which drive the HIV epidemic in women and girls. Similarly, disparity and incoherence of age of consent laws result in reduced access to sexual and reproductive health information, commodities and other services for adolescent girls.

As the countdown to achieving the 2030 Agenda’s target to end the AIDS epidemic continues, governments and other stakeholders need to redouble efforts towards women’s and girls’ empowerment and gender equality. These efforts should include: guaranteeing women’s equal rights to land, property and inheritance in law; reforming penal laws that increase women’s vulnerability to HIV, such as laws on sex work, pre-marital sex, consensual same sex conduct and cross-dressing; and removing laws and policies that restrict access to sexual and reproductive health services. Governments must work to protect women’s and girls’ sexual and reproductive health and rights and provide comprehensive sexuality education for young women and adolescent girls. It is imperative that national laws and policies provide comprehensive protection from violence for all women and girls. Equally important, law and policy should effectively address the structural drivers of gender-based violence, including patriarchal social norms, gender inequalities and intergenerational violence.

UNDP has worked with governments, the Joint United Nations Programme on HIV/ AIDS (UNAIDS) Secretariat, UNAIDS co-sponsors and civil society in 89 countries to advance the recommendations of the Global Commission on HIV and the Law and to promote enabling legal, policy and regulatory environments for rights-based HIV responses, including for women and girls. Ending the HIV epidemic is possible, but not without redoubling efforts and investments in creating enabling legal and policy environments, addressing the impact of laws and policies on women and girls and providing legal empowerment to women and girls living with and vulnerable to HIV.