Men who have sex with men and the right to have access to anti-retroviral drugs in South Africa
Issues: Men who have sex with men are a particularly vulnerable group affected by HIV because of widespread societal stigma and discrimination against same-sex sexual practices and identities. Men who have sex with men suffer double discrimination because public policy around access to anti-retroviral drugs often ignore their special needs and circumstances. This leads to a situation in which such men often do not access anti-retroviral drugs or only access them very late.
Description: This paper argues that a human rights based approach to access to anti-retroviral drugs can help to address the double discrimination suffered by men who have sex with men and who happen to be HIV positive. In the context of the South African Bill of Rights – which contains both a strong prohibition on discrimination based on "sexual orientation", and a right for "everyone" to have access to health care – the paper argues that the state has a legal duty to take special measures to give effect to the substantive guarantee of equality and to ensure that men who have sex with men timeously gain access to anti-retroviral drugs in the public health system.
Lessons learned: The fact that non-discrimination law must take cognizance of the special vulnerability of men who have sex with men, places a duty on the state to take special measures to ensure that such men gain access to anti-retroviral drugs. A rejection of a formal understanding of equality in favour of a substantive approach (endorsed by South Africa´s Constitutional Court), invariably will help to protect men who have sex with men from the stigma and discrimination that hampers their ability to access life saving anti-retroviral drugs.
Next steps: Court action may have to be taken to force the South African government to give effect to their obligations as set out above.
-Abstract available at link below-