Commentary Human Rights

Sex Workers in Greece Face Forced HIV Testing, While Those in Malawi Fight Back

Chi Mgbako

Rights-based public health measures should seek to protect all people from HIV infection, and provide those who are HIV-positive with the tools to live healthier lives. 

Greece has been a mainstay in the international press as it endures harsh austerity measures in the face of the global economic crisis. But recent news reports have also focused on another disturbing reality: At the end of April, Greek police began systematically arresting sex workers, forcing them to undergo HIV testing, and posting the names and photographs of those who test HIV-positive on official police websites. The sex workers face criminal charges of intentionally causing serious bodily harm, even though there is no evidence they were aware of their HIV status.  

The Joint United Nations Program on HIV/AIDS (UNAIDS), Amnesty International, the Global Network of Sex Work Projects, and the Global Network of People Living with HIV/AIDS, have all condemned the Greek authorities’ actions as incompatible with human rights and discordant with proven public health measures to prevent HIV transmission.  State-sanctioned forced HIV testing of sex workers also occurs elsewhere, including in the southern African country of Malawi. But in Malawi, something inspiring has happened – sex workers are fighting back.

It began in 2009, when police officers in southern Malawi raided a bar, arresting male patrons and female sex workers. The police later released all of the men but took the women to the district hospital where they forced them to undergo HIV tests without their consent. The sex workers who tested HIV-positive were charged with “spreading disease dangerous to life,” and before sentencing, a judge read out their HIV status results in open court. During this period, other Malawian sex workers reported similar instances of forced HIV testing to human rights groups. 

The Malawian sex workers involved in these cases could have returned to their homes and swallowed the bitterness of these indignities.  Instead, fourteen sex workers decided to sue the government and challenge the constitutionality of forced HIV testing. The legal case, among the first of its kind, is making its way, slowly but hopefully, through the Malawi courts.

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The human rights organization representing the Malawian sex workers requested help from the human rights legal clinic I direct; my students and I contributed to the case by conducting international and comparative law research on the human rights implications of forced HIV testing. The results were clear: Because forced HIV testing is physically invasive in nature, it violates the right to bodily integrity and security of the person.  Because it’s a coercive and stigmatizing measure that discourages people from seeking voluntary counseling, testing, and treatment, it violates the right to the highest attainable standard of health. And “outings” of individuals’ HIV status without their consent, as was done in open court in Malawi and on police websites in Greece, violate the rights to privacy and dignity, especially because such revelations can lead to stigma, discrimination, and even violence.

Greek officials have attempted to justify the forced HIV testing of sex workers by stating that they’re protecting public health after an increase in AIDS cases in the country in the past year. This logic feeds into the stigmatizing notion of women as the main source of sexually transmitted infections and the misguided idea of female sex workers as “vectors of disease” from whom we must protect the general population. Rights-based public health measures should seek to protect all people from HIV infection, and provide those who are HIV-positive with the tools to live healthier lives. 

As UNAIDS and the Office of the United Nations High Commissioner for Human Rights have argued, coercive measures in the fight against HIV/AIDS, including forced HIV testing, produce bad public health outcomes by alienating at-risk groups. Mandatory HIV testing breaches medical confidentiality and facilitates stigma and discrimination against people living with HIV/AIDS, therefore discouraging vulnerable groups from seeking out what we know works to stem the tide of HIV transmission – voluntary and confidential counseling, testing, and treatment. Discriminatory state action like the forced HIV testing of sex workers drives further underground some of the people most in need of public health services that facilitate HIV prevention. It also alienates groups, like sex workers, who make fantastic peer educators on HIV.

Our eyes should remain on Malawi as this band of defiant sex workers takes a brave step to affirm their rights and the rights of all people, especially the marginalized, to live free from coercive practices that do not safeguard public health.

Sign the online petition to Greek authorities to stop the forced HIV testing of sex workers.

Roundups Politics

Campaign Week in Review: Trump Selects Indiana Gov. Mike Pence to Join His Ticket

Ally Boguhn

And in other news, Donald Trump suggested that he can relate to Black people who are discriminated against because the system has been rigged against him, too. But he stopped short of saying he understood the experiences of Black Americans.

Donald Trump announced this week that he had selected Indiana Gov. Mike Pence (R) to join him as his vice presidential candidate on the Republican ticket, and earlier in the week, the presumptive presidential nominee suggested to Fox News that he could relate to Black Americans because the “system is rigged” against him too.

Pence Selected to Join the GOP Ticket 

After weeks of speculation over who the presumptive nominee would chose as his vice presidential candidate, Trump announced Friday that he had chosen Pence.

“I am pleased to announce that I have chosen Governor Mike Pence as my Vice Presidential running mate,” Trump tweeted Friday morning, adding that he will make the official announcement on Saturday during a news conference.

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The presumptive Republican nominee was originally slated to host the news conference Friday, but postponed in response to Thursday’s terrorist attack in Nice, France. As late as Thursday evening, Trump told Fox News that he had not made a final decision on who would join his ticket—even as news reports came in that he had already selected Pence for the position.

As Rewire Editor in Chief Jodi Jacobson explained in a Thursday commentary, Pence “has problems with the truth, isn’t inclined to rely on facts, has little to no concern for the health and welfare of the poorest, doesn’t understand health care, and bases his decisions on discriminatory beliefs.” Jacobson further explained: 

He has, for example, eagerly signed laws aimed at criminalizing abortion, forcing women to undergo unnecessary ultrasounds, banning coverage for abortion care in private insurance plans, and forcing doctors performing abortions to seek admitting privileges at hospitals (a requirement the Supreme Court recently struck down as medically unnecessary in the Whole Woman’s Health v. Hellerstedt case). He signed a ‘religious freedom’ law that would have legalized discrimination against LGBTQ persons and only ‘amended’ it after a national outcry. Because Pence has guided public health policy based on his ‘conservative values,’ rather than on evidence and best practices in public health, he presided over one of the fastest growing outbreaks of HIV infection in rural areas in the United States.

Trump Suggests He Can Relate to Black Americans Because “Even Against Me the System Is Rigged”

Trump suggested to Fox News’ Bill O’Reilly that he could relate to the discrimination Black Americans face since “the system [was] rigged” against him when he began his run for president.

When asked during a Tuesday appearance on The O’Reilly Factor what he would say to those “who believe that the system is biased against them” because they are Black, Trump leaped to highlight what he deemed to be discrimination he had faced. “I have been saying even against me the system is rigged. When I ran … for president, I mean, I could see what was going on with the system, and the system is rigged,” Trump responded.

“What I’m saying [is] they are not necessarily wrong,” Trump went on. “I mean, there are certain people where unfortunately that comes into play,” he said, concluding that he could “relate it, really, very much to myself.”

When O’Reilly asked Trump to specify whether he truly understood the “experience” of Black Americans, Trump said that he couldn’t, necessarily. 

“I would like to say yes, but you really can’t unless you are African American,” said Trump. “I would like to say yes, however.”

Trump has consistently struggled to connect with Black voters during his 2016 presidential run. Despite claiming to have “a great relationship with the blacks,” the presumptive Republican nominee has come under intense scrutiny for using inflammatory rhetoric and initially failing to condemn white supremacists who offered him their support.

According to a recent NBC News/Wall Street Journal/Marist poll released Tuesday, Trump is polling at 0 percent among Black voters in the key swing states of Ohio and Pennsylvania.

What Else We’re Reading

Newt Gingrich, who was one of Trump’s finalists for the vice presidential spot, reacted to the terrorist attack in Nice, France, by calling for all those in the United States with a “Muslim background” to face a test to determine if they “believe in sharia” and should be deported.

Presumptive Democratic nominee Hillary Clinton threw her support behind a public option for health insurance.

Bloomberg Politics’ Greg Stohr reports that election-related cases—including those involving voter-identification requirements and Ohio’s early-voting period—are moving toward the Supreme Court, where they are “risking deadlocks.”

According to a Reuters review of GOP-backed changes to North Carolina’s voting rules, “as many as 29,000 votes might not be counted in this year’s Nov. 8 presidential election if a federal appeals court upholds” a 2013 law that bans voters from casting ballots outside of their assigned precincts.

The Wall Street Journal reported on the election goals and strategies of anti-choice organization Susan B. Anthony List, explaining that the organization plans to work to ensure that policy goals such as a 20-week abortion ban and defunding Planned Parenthood “are the key issues that it will use to rally support for its congressional and White House candidates this fall, following recent setbacks in the courts.”

Multiple “dark money” nonprofits once connected to the Koch brothers’ network were fined by the Federal Election Commission (FEC) this week after hiding funding sources for 2010 political ads. They will now be required to “amend past FEC filings to disclose who provided their funding,” according to the Center for Responsive Politics. 

Politico’s Matthew Nussbaum and Ben Weyl explain how Trump’s budget would end up “making the deficit great again.”

“The 2016 Democratic platform has the strongest language on voting rights in the party’s history,” according to the Nation’s Ari Berman.

News Law and Policy

Virginia School Board Wants Supreme Court in Fight Over Transgender Student Bathroom Access

Jessica Mason Pieklo

The Gloucester County School Board wants the Supreme Court to decide whether federal law requires schools to let transgender students access facilities such as bathrooms that conform to their gender identity.

A Virginia school board will ask the U.S. Supreme Court to step into the fight over bathroom access for transgender students in the first real legal test of the Obama administration’s agency actions on the issue.

The case involves Gavin Grimm, a Gloucester County student who, in 2015, challenged his school’s policy of separating transgender students from their peers in restrooms and mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity.

As previously reported by Rewire:

Grimm’s attorneys at the American Civil Liberties Union argued that the restroom policy, which effectively expels transgender students from communal restrooms and requires them to use “alternative … private” restroom facilities, is unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination at schools that receive federal funding.

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The school board defended its policy, arguing that it was consistent with federal law and that it protected the privacy rights of other students at Grimm’s school.

Grimm’s attorneys had asked a federal court for an injunction blocking the policy. A lower court initially sided with the school board; Grimm’s attorneys appealed to the U.S. Court of Appeals for the Fourth Circuit, which reversed the lower court and ruled that Grimm’s lawsuit against his school could proceed.

On Tuesday the Fourth Circuit agreed to put its decision on hold while the school board filed a petition asking the Supreme Court to step in. The board is arguing that the Obama administration has gone too far on transgender rights, beginning in 2012, when it issued an initial agency opinion that refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

In October 2015 the administration took that opinion one step further and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy specifically violated federal law. Then, in May this year, the administration expanded that opinion into a directive. Though it still didn’t have the force of law, the directive put all schools receiving federal funding on notice: Should they deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law and subject to lawsuits. The Fourth Circuit relied heavily on this guidance in siding with Grimm earlier this year.

It is not clear whether the Roberts Court will step into the issue of transgender students’ rights at this time. So far, no other federal appeals court has weighed in on the issue.

Meanwhile, 22 states have filed a lawsuit challenging the Obama administration’s 2016 directive, arguing that the administration overstepped its authority. That lawsuit is also in its early stages.

Both Grimm’s lawsuit and the states’ lawsuit in response suggest the issue of transgender rights and sex discrimination will end up before the Roberts Court at some point.