Canada: Canada’s broken promise on HIV criminalisation reform

HIV criminalization and the Canadian government’s failed law reform project: Another. Incredible. Disappointment. Surprise!

By Chad Clarke with contributions from Colin Johnson

The Government of Canada has broken its promise to reform the laws that criminalize people living with HIV. In November 2024, the Federal Justice Minister’s office informed the Canadian Coalition to Reform HIV Criminalization (CCRHC) that the federal government’s long-promised initiative addressing the “overcriminalization” (their term) of HIV was not going to move forward. This announcement came after almost a decade of difficult work on the part of the HIV community. Blood, sweat and tears and some lives were lost while we worked on developing a workable consensus statement that would satisfy a majority of Parliament.

The government squandered time, money, people’s energy and people’s lives. By conducting a public consultation on “reforming the criminal law regarding HIV non-disclosure” only to appear like they were doing something, when in fact they weren’t, the government failed to address the harms associated with stigma, discrimination and criminalization! It has failed to address the way our current Criminal Code harms people and communities affected by HIV. “Silence = Death” is an iconic slogan in the history of AIDS activism and we can not be silent on our incredible disappointment with the government’s inaction.

A backdrop of struggle

Back in July of 2024, I sat down with fellow CCRHC steering committee member Colin Johnson to discuss HIV criminalization and to urge the government to act. Our CATIE Blog article, entitled “HIV law reform”, began by listing some of the emotions that I was feeling at the time: “Anger! Disappointment! Betrayal!” I still feel these emotions as I write this follow-up blog post.

I feel like I’m playing a game of chess with this government and once again we’re locked in a stalemate. Our current feelings of disappointment are experienced against the backdrop of 44 years of struggle.

While there have been notable improvements in Canada for people living with HIV/AIDS, for example in antiretroviral medicines, in some respects we are backsliding. According to the Public Health Agency of Canada, we saw 2,434 new HIV diagnoses in 2023, a 35.2% increase from the previous year.

Consultation games

In the face of rising HIV cases, it makes sense to ask how the government is funding the HIV response. Short answer: it’s not funding it enough.

In 2003, more than 20 years ago, the House of Commons Standing Committee on Health recommended that $100 million per year be allocated to support the HIV response in Canada. While funding did increase, it fell short of this recommendation. The government promised to spend $84.4 million annually as of 2008, but in reality, this figure has been frozen at about $73 million. This means over $123 million promised for the HIV response was never delivered. This lack of funding has had a crippling effect on the services and community organizations working to respond to and prevent HIV.

In 2019, the Standing Committee on Health, once again, recommended $100 million per year to fund the HIV response in Canada. But, we’re still waiting!

On the one hand, the government is clearly not spending enough on the HIV response. But on the other hand, how much money was spent on the nationwide consultation that was destined to go nowhere? We already had so much data showing that the criminal law needed to be changed. For example, back in 2019 the Standing Committee on Justice and Human Rights tabled a report calling on the government to change the criminal code.

The CCRHC even developed proposed language for reforming the Criminal Code. We didn’t need this expensive consultation.

A consequence of inaction

As I write this, people living with HIV are still being convicted of serious criminal offences and sentenced to years in prison for allegedly not disclosing their HIV status to sexual partners, even in situations where there was little to no risk of transmission.

Beyond the horrible, violent ways that HIV criminalization harms individuals—too numerous and too painful for me to recount here (see Alexander McClelland’s book on this topic)—we know that it has also caused significant harmful consequences for our wider communities. To quote a recent publication in the Canadian Journal of Public Health, HIV criminalization

“…is applied in uneven and discriminatory ways, hinders public health HIV prevention efforts, and has damaging effects on the everyday well-being, safety, security, and rights of people living with HIV. Studies also show that the mainstream press reinforces damaging, racist, stigmatizing messages about HIV in its coverage of criminal non-disclosure cases.”

If anyone reading this thinks they might be in favour of a criminal law response to HIV, let me ask you this: how many cases of HIV has the criminal law ever prevented? To answer this question, I’ll offer this quote from an article in the journal of Critical Public Health: “One of the defining features of the literature is the absence of a single study demonstrating that HIV criminalization has a positive impact on HIV prevention.”

HIV criminalization is killing people. I tell you this based on my own personal experience. As a criminalization survivor, I sometimes feel like I am being inexorably, slowly, killed by a brutal system that has abandoned me to poverty, precarious housing, stigma, discrimination and ongoing criminalization. I served my time, but there are so many other ways that my life is still criminalized today because of the unjust Criminal Code that persecuted me in the first place, and because of the government’s inaction and failure to right this historic wrong.

From inaction to action

I don’t want to end this piece with the government’s inaction. Instead, I want to leave us with a call to action. In the coming federal election, we can ask how parties and leaders will address community calls for criminal law reform. We can ask them to commit to taking real action: we don’t need another public consultation that goes nowhere.

Also, we can inform ourselves and others about the harms of HIV criminalization. I don’t know exactly where this quotation comes from, but it’s one that my friend, the late Cindy Stine, once told me: “If you don’t know your rights… you don’t have any!”

As we head into this next election, we as a community can keep HIV criminalization on the political agenda. We know that HIV criminalization harms public health—it harms everyone. Time to ACT UP!

I encourage you to stand with me by joining the Canadian Coalition to Reform HIV Criminalization. HIV IS NOT A CRIME!!

Chad Clarke has been living with HIV for more than 15 years. His personal experience of prosecution and imprisonment has transformed him into a passionate leader and activist working against the discriminatory criminalization of HIV non-disclosure. Chad’s voice has been a spark that has inspired many to get involved in the movement for change. He is a current member of the steering committee of the Canadian Coalition to Reform HIV Criminalization.

Colin Johnson is a Black gay man who has lived with HIV for the past 40 years. He has been an advocate for African, Caribbean and Black communities for decades, with a focus on queer folk and substance use. He is the co-chair of the Toronto Harm Reduction Alliance (THRA) and sits on the steering committee for the Canadian Coalition to Reform HIV Criminalization.

Zimbabwe’s victory:
A beacon of hope for HIV justice amid global challenges

In a landmark victory for human rights, Zimbabwe repealed its HIV criminalisation law in 2022, marking a significant step forward in the global fight for HIV justice. This historic reform, detailed in a new case study and documentary by the HIV Justice Network (HJN), was the result of years of dedicated advocacy by Zimbabwean activists, legal experts, and community organisations. Their success serves as both an inspiration and a blueprint for other nations still grappling with punitive HIV laws.

For decades, Zimbabwe’s Section 79 of the Criminal Law Code unfairly targeted people living with HIV criminalising alleged transmission without regard for intent, transmission risk, or scientific evidence. These laws, rooted in stigma rather than science, disproportionately harmed women, but mostly deterred men from seeking testing and treatment. The repeal of Section 79 was a hard-won victory that showcased the power of coalition-building and sustained advocacy.

Yet, as we celebrate Zimbabwe’s progress, we must confront a sobering reality: the global movement for HIV decriminalisation faces an existential crisis due to dwindling funding. Many donors are shifting priorities, putting essential advocacy work at risk. The HIV response itself is in peril, making it even more critical to sustain efforts to challenge unjust laws and protect the rights of people living with HIV.

The HIV Justice Network has been at the forefront of this struggle, playing an irreplaceable role in co-ordinating the global movement against HIV criminalisation. In a recent meeting, our HIV JUSTICE WORLDWIDE coalition partners re-affirmed the immense value of our work, emphasising our deep institutional knowledge, comprehensive legal monitoring, and convening power. Our two databases – the Global HIV Criminalisation Database and Positive Destinations – are vital resources for advocates, helping to expose patterns of injustice and build evidence-based arguments for reform.

Moreover, in environments where local organisations face political or legal risks, we serve as a powerful global voice, shining a spotlight on abuses and advocating for change. The network’s ability to bring together diverse stakeholders – activists, lawyers, researchers, and policymakers – ensures that no-one is fighting this battle alone.

Despite the funding crisis, the fight for HIV justice has never been more urgent. Punitive, discriminatory, outdated laws and policies continue to undermine public health efforts, fuel stigma, and violate human rights. The repeal of Zimbabwe’s HIV criminalisation law is a powerful reminder that change is possible, but it does not happen in isolation. It requires sustained, co-ordinated efforts – exactly the kind of work that HJN has championed for years.

The Zimbabwean victory is a beacon of hope, but it also serves as a call to action. We must not allow financial constraints to derail the progress we have fought so hard to achieve. Now, more than ever, we need to stand together to ensure that HIV criminalisation becomes a relic of the past. The future of HIV justice – and, therefore, the HIV response itself – depends on it.

US: The fight Against HIV criminalisation faces new hurdles under Trump

Activists fighting HIV criminalization laws say they’ve lost federal government as partner

The Biden administration sued Tennessee over targeting people living with HIV, most of whom were Black, but Trump has canceled potential future efforts in other states.

A year after the Biden administration laid a blueprint for the federal government to take aim at state laws that criminalize the transmission of HIV, activists say that with the Trump administration, they’ve lost a crucial ally in challenging these outdated, racist, and homophobic laws.

Last year, the Department of Justice (DOJ) under President Joe Biden filed a first-of-its-kind lawsuit alleging that Tennessee’s aggravated prostitution statute, which made it a felony to perform sex work while living with HIV, violated the Americans with Disabilities Act (ADA). For people in the state who do not live with HIV, prostitution is ordinarily a misdemeanor.

Along with the elevated severity of the charge, an aggravated prostitution conviction in the state until last year also came with a lifetime registration as a “violent sex offender” and the onerous requirements and restrictions that accompany such a designation.

While the DOJ settled with Shelby County, Tennessee, which had the most charges filed under the law in the state, in May 2024, a separate private suit brought by OUTMemphis against Tennessee’s governor and attorney general is still making its way through the court.

Courts have repeatedly interpreted the ADA to include HIV. While the DOJ’s suit was seen as a landmark use of the ADA to challenge these laws, President Donald Trump has signaled the opposite approach. Just days after Trump’s inauguration in January, DOJ leadership ordered attorneys in the agency’s Civil Rights Division, which settled the case against Shelby County, to freeze new and ongoing civil rights cases.

That loss not only drains resources from the fight against HIV criminalization laws, but also eliminates a powerful incentive for states to reach favorable agreements, like the one reached with Shelby County.

“The ability for the federal government to bring litigation, or the threat of litigation, is very powerful,” said Sean McCormick, staff attorney at the New York City-based Center for HIV Law and Policy. “I think many state and local actors are motivated by either the financial expense—the logistical cost of pursuing litigation—so the DOJ is able to leverage that to push local actors to enter into these settlements across the board when it comes to the rights of people living with disabilities.”

HIV criminalization laws are a draconian reaction to the AIDS crisis of the 1980s and purportedly target people alleged to have intentionally spread the virus. According to Community Health Law Project, as of February, 32 states criminalize people living with HIV, and 28 states have penalty enhancements that are based on someone’s knowledge of their HIV status. But academic research and journalistic scrutiny have repeatedly shown that these laws disproportionately target Black people, particularly Black trans women.

According to the DOJ’s findings letter that preceded its lawsuit, Shelby County was home to two-thirds of people on the state’s sex offender registry for aggravated prostitution, and nine out of 10 people arrested in the county under the law were Black.

Additionally, an investigation by the Chicago Reader from June 2021 found that of roughly 60 charges in Cook County, Illinois, filed under the state’s now-repealed law that made it a felony to expose someone to HIV without their knowledge, 75% were Black. The investigation also found that charges were repeatedly filed for actions that do not transmit HIV, namely when people had spit on or bit police officers.

Illinois became the second state, after Texas, to repeal its HIV criminalization law that July, followed by New Jersey in 2022. A bill to remove similar criminal penalties in Maryland is making its way swiftly through the state legislature with bipartisan support.

Alongside arguments that the laws violate the ADA by targeting people living with HIV, public health experts have also said for years that HIV criminalization laws discourage seeking testing and treatment under the logic that if people don’t know they’re living with HIV, they can’t be accused of intentionally exposing someone to the virus.

Besides the freeze on civil rights cases, the new Trump administration has also taken other steps to hamper the work of those challenging these laws. For instance, in January, the Centers for Disease Control and Prevention (CDC) website was scrubbed of content related to gender identity and sexual orientation. HIV-related pages were caught up in the mix, including references to the CDC’s position against HIV-related laws.

“The CDC took an affirmative stance that they oppose punitive forms of HIV [criminalization]. That’s gone,” said Jose Abrigo, the HIV Project Director for national LGBTQIA+ legal advocacy group Lambda Legal. “And so that lack of a federal position against HIV criminalization will have an effect on HIV decriminalization.”

Abrigo added that research into HIV decriminalization is also likely to be impacted by Trump policies, namely a freeze on grants through the National Institutes of Health that have held up more than $1 billion in medical research funding.

“So it’s really just the larger collateral effects of his really harmful policies that’s going to affect HIV decriminalization efforts,” Abrigo said.

Still, experts are quick to point out that the DOJ’s role in challenging these laws was effective, with the Shelby County settlement as the first and only one of its kind. Even before the Trump administration’s rollback of civil rights enforcement, activists and advocates alike said it is up to local coalitions to challenge the laws and seek justice for people living with HIV throughout the country.

Kenyon Farrow, the board president of the LGBT Community Center of Greater Cleveland, is a longtime activist against HIV laws and for equitable access to HIV treatment and prevention. In his view, the rollback of the federal government’s attention changes little about how these laws must be challenged and ideally repealed. Farrow said he believed most local advocates would continue focusing on the state level, where most of the harmful laws exist.

“That’s probably where a lot of the work is going to start to happen to try to push for more states to reform those laws, regardless of what the federal government does,” Farrow said.

New case study and documentary examines how Zimbabwe repealed its HIV criminalisation law

Today, the HIV Justice Network (HJN), supported by the International AIDS Society (IAS), released a video documentary, “It is Time!” – How Zimbabwe Decriminalised HIV, along with a case study report examining Zimbabwe’s successful repeal of its HIV-specific criminal law.

The report, Reforming the Criminal Law in Zimbabwe: A Case Study, explores how advocates, legal experts, and community leaders worked together to repeal Section 79 of Zimbabwe’s Criminal Code, which criminalised HIV non-disclosure, exposure, or transmission. It outlines key strategies used in the campaign and lessons for other countries seeking to end HIV criminalisation.

The 24-minute documentary “It is Time!” brings this story to life through interviews with those involved in the multi-year effort. It also explores how advocates responded when a new law threatened to reintroduce HIV criminalisation.

Zimbabwe’s experience highlights several key strategies:

Coalition-building: Bringing together civil society, legal experts, and policymakers strengthened the advocacy effort.
Public health and human rights messaging: Advocates demonstrated how criminalisation undermined Zimbabwe’s HIV response.
Scientific evidence: Expert testimony helped policymakers understand the realities of HIV transmission.
Legislative strategy: Repealing Section 79 as part of a broader legal reform helped ensure success.

The documentary “It is Time!” is now available on the HIV Justice Network YouTube channel.

Reforming the Criminal Law in Zimbabwe: A Case Study (English, pdf, 9 pages) can be downloaded here.

The documentary and case study will also be added to the HIV Criminalisation Online Course, available for free as part of the HIV Justice Academy.

The case study and video were launched during a webinar co-hosted by HJN and IAS, featuring discussions on the significance of Zimbabwe’s law reform for the global movement against HIV criminalisation from:

Marlène Bras, Director of HIV Programmes at the IAS;
Dr Ruth Labode, former legislator, and chairperson of the Parliamentary Portfolio Committee on Health in Zimbabwe;
Immaculate Owomugisha, a Ugandan lawyer and human rights activist who also sits on HJN’s Supervisory Board; and
HJN’s Senior Policy Analyst, Alison Symington.

A recording of webinar can now be viewed in English and in French on the IAS+ website.

HIV Is Not a Crime Awareness Day:
A Call to Action in a Time of Crisis

Today, on HIV Is Not a Crime Awareness Day, we stand in solidarity with people living with HIV and our allies who not only continue to fight criminalisation, discrimination, and stigma, but also the sudden loss of funding amongst rising political opposition. This year, the urgency of our fight has never been clearer. As the devastating consequences of US policy shifts ripple across the world, we are not just advocating for change – we are fighting for our lives.

Last Wednesday, at the UK Parliament, we brought together key stakeholders to highlight how unjust HIV criminalisation laws, arrests and prosecutions persist in the UK and across the Commonwealth. Similar events are taking place globally, reinforcing that this issue transcends borders.

With Zero Discrimination Day tomorrow spotlighting the power of communities in the HIV response, #WeStandTogether – today and every day – to end the unjust laws and policies that punish people not only for living with HIV, but also because of who they are, who they love, or how they make a living. In a world where stigma still shackles and injustice still reigns, HIV Is Not a Crime Awareness Day is not just necessary – it’s urgent.

The fight for justice also brings hope. On Wednesday, 5 March at 9am EST / 3pm CET / 4pm CAT / 5pm EAT, join us for a special webinar with the International AIDS Society’s Heart of Stigma programme (register here), where we will premiere a powerful new documentary and toolkit on Zimbabwe’s successful decriminalisation of HIV. Zimbabwe’s victory proves that change is possible even in challenging political environments.

This is not just a moment. It’s a movement. The time for action is now.

Spain: Landmark ruling in Spain recognises HIV-based discrimination for the first time

Groundbreaking ruling in Spain recognises HIV discrimination

Translated from Spanish with Deepl.com – Scroll down for original article

Cesida, the Legal Clinic of the University of Alcalá and the Fernando Pombo Foundation have achieved an important ruling that recognises for the first time discrimination based on the HIV status of a person.
The legal standing in court of social organisations such as CESIDA paves the way for greater protection of the rights of vulnerable people.

Cesida (the Spanish HIV/AIDS Coordinating Committee), the Legal Clinic of the University of Alcalá and the Fernando Pombo Foundation have obtained a pioneering court ruling on equality and non-discrimination based on HIV status in Spain. The case concerned discrimination suffered by a person with HIV in the administrative sphere. Specifically, a resolution of the Directorate General of Traffic (DGT) has been declared null and void on the grounds that it was discriminatory, as it reduced the validity of a citizen’s driving licence by half solely because he or she is living with HIV, without any justification and without following the established procedure.

The Citizens’ Anti-AIDS Commission of Navarre has accompanied “Pedro” throughout the process, providing support and advice from the outset. Their work, like that of other organisations that work directly with people with HIV, is essential to guarantee the defence of the rights of people with HIV and to offer the necessary support in these situations of discrimination. At CESIDA we would like to thank them for their commitment and that of all the organisations that fight against stigma and inequality every day.

Active legitimisation of social organisations

The case shows how social organisations such as CESIDA can better defend people in vulnerable situations under Law 15/2022 of 12 July, which is comprehensive for equal treatment and non-discrimination.

Oliver Marcos, general secretary of CESIDA, declared: ‘This ruling is a crucial step in the defence of the rights of people with HIV. There is still much to be done, but we are firmly committed to continuing to fight against the stigmatisation and discrimination suffered by people with HIV in our society.’

The active legitimisation of social organisations is a key channel for those who, due to their vulnerable situation, do not want to or cannot appear in a judicial process. Social organisations assume their legal representation by exercising their right to effective judicial protection without the affected person having to be part of the process, their authorisation being sufficient. In this way, the role of the third sector is reinforced when the organisations have among their aims the defence and promotion of human rights, without extending the scope to abstract or media defences without real content.

In this case, the person who felt that their right to equal treatment had been violated consulted the DGT’s decision with CESIDA. Three students, tutored by two professors, from the Legal Clinic of the University of Alcalá, which has collaborated with CESIDA for many years, considered that this could be a case of direct discrimination based on serological status. The Legal Clinic of the UAH then contacted the Fernando Pombo Foundation, which promotes and coordinates pro bono legal advice projects to improve the rule of law. The Fernando Pombo Foundation considered that this was a strategic issue for the achievement of its aims and also involved a team of pro bono lawyers from the law firm Gómez-Acebo & Pombo, and together they planned the legal strategy.

Ana Higuera, director of the Fernando Pombo Foundation, emphasises that ‘for us, participating in the defence of this case has been a stimulus for our mission. The admission of the claim by CESIDA, without the need for individual visibility of the person with HIV, represents a key advance in the legal approach to avoiding discrimination that, although not always visible, is real. Furthermore, the judgement’s analysis of how the discrimination occurred is clear and direct, which I consider essential to raise awareness of real situations of discrimination and differentiate them from others in which differential treatment is appropriate. In this sense, I believe that the judgement is educational and useful’.

This is one of the first cases in which, in accordance with Law 15/2022, the legitimacy of an association constituted for the purpose of defending human rights is recognised to combat a situation of discrimination in the field of public law.

The sentence: discrimination based on serological status in the renewal of a driving licence

On 24 October 2022, the DGT (Directorate General of Traffic) informed Pedro (not his real name) that his driving licence had been renewed for half the normal period (5 years instead of 10) and the only apparent reason was that he had disclosed during the medical check-up that he had HIV and was taking the corresponding antiretroviral treatment, without this affecting his ability to drive in any way.

Although the limitation on renewal may not be very relevant, the interest of the case lies in the recurrence with which situations similar to this one occur every day in the lives of people with HIV, who continue to be stigmatised despite advances in the treatment and prevention of transmission of the virus thanks to the efficacy and safety of antiretroviral drugs. Faced with this decision by the DGT, Pedro authorised CESIDA to lodge an appeal, which was possible thanks to the provisions of article 29 of Law 15/2022, which introduces the active legitimation of social entities with certain requirements.

Once the evidence had been presented and the arguments put forward by the team of pro bono lawyers from the law firm Gómez-Acebo & Pombo defending CESIDA’s claim, the Administrative Court ruled in favour of CESIDA and annulled the DGT’s decision on the grounds that it was discriminatory. This ruling is a pioneering pronouncement in our country. It literally says:

‘But discrimination occurs in several ways. The applicant is discriminated against when the procedure established in article 44.3 of the General Drivers Regulations is not followed. The applicant is discriminated against when, on appeal, the provision established in section 13 of Annex IV itself is not taken into account, according to which ‘except if the interested party accompanies a favourable medical opinion’, a report that appears on page 10 of the administrative file indicating that ‘the influence of Dovato on the ability to drive and use machines is nil or insignificant (see technical data sheet)’. The applicant is discriminated against when the decision adopted is a flat-out one, as evidenced by the fact that the administrative file begins with the applicant’s complaint, which is classified as an appeal, with no record of any previous action.

The renewal applicant is treated differently, as the established general rule (renewal for a period of ten years) does not apply to him. It is done because he is HIV positive, without any justification and without following the procedure that, in any case, would be established for this purpose.’

After the sentence was handed down, the DGT has already sent Pedro his new driving licence for the general period, without exceptions, having also notified the finality of the sentence a few days ago.

A precedent against discrimination based on serological status

Miguel Ángel Ramiro, coordinator of the Legal Clinic of the University of Alcalá, emphasised that ‘This case sets an important precedent in Spain as it is a pioneering ruling against discrimination based on HIV status, as well as for the recognition of the standing of social organisations’. And he added: ‘The participation of our students in this process has been key. Not only have they learned about applicable legal norms and procedural issues, but they have also contributed to the fight for equality and social justice, a fundamental aspect in the training of future professionals.’

Oliver Marcos, general secretary of Cesida, emphasised: ‘We encourage people with HIV to turn to associations when they feel their rights have been violated, showing that in this way changes are achieved. In addition, we place special emphasis on the fact that public administrations should be the guarantors of equality and avoid this type of discrimination in any area within their competence.’

Sentencia pionera en España reconoce la discriminación por el VIH

Cesida, la Clínica Legal de la Universidad de Alcalá y la Fundación Fernando Pombo logran una importante sentencia que reconoce por primera vez la discriminación por razón del estado serológico de una persona con el VIH.
La legitimación activa ante los tribunales de entidades sociales como CESIDA abre el camino a una mayor protección de los derechos de las personas en situación de vulnerabilidad.

Cesida (Coordinadora Estatal de VIH y sida), la Clínica Legal de la Universidad de Alcalá y la Fundación Fernando Pombo han obtenido un pronunciamiento judicial pionero en materia de igualdad y no discriminación por razón del estado serológico en España. El proceso ha enjuiciado la discriminación sufrida por una persona con el VIH en el ámbito administrativo. En concreto, se ha declarado la nulidad de una resolución de la Dirección General de Tráfico (DGT) por entender que la misma era discriminatoria ya que reducía la vigencia del permiso de conducción de un ciudadano a la mitad únicamente porque vive con el VIH, sin motivación alguna y con ausencia del procedimiento que, en todo caso, está establecido para ello.

La Comisión Ciudadana Antisida de Navarra ha acompañado a «Pedro» durante todo el proceso, brindándole apoyo y asesoramiento desde el primer momento. Su labor, al igual que la de otras entidades que trabajan directamente con personas con el VIH, es esencial para garantizar la defensa de los derechos de las personas con el VIH y ofrecer el respaldo necesario ante estas situaciones de discriminación. Desde CESIDA queremos agradecer su compromiso y el de todas las organizaciones que día a día luchan contra el estigma y la desigualdad.

Legitimación activa de las entidades sociales

El caso muestra cómo las organizaciones del ámbito social como CESIDA pueden defender mejor a personas en situación de vulnerabilidad en virtud de la Ley 15/2022, de 12 de julio, integral para la igualdad de trato y la no discriminación.

Oliver Marcos, secretario general de CESIDA, declaró: “Esta sentencia es un paso crucial en la defensa de los derechos de las personas con el VIH. Aún queda mucho por hacer, pero tenemos el firme compromiso de seguir luchando contra la estigmatización y la discriminación que sufrimos las personas con la infección por el VIH en nuestra sociedad.”

La legitimación activa de las entidades sociales resulta una vía clave para aquellas personas que por estar en una situación de vulnerabilidad no quieren o no pueden personarse en un proceso judicial. Las organizaciones sociales asumen su representación legal ejerciendo su derecho a la tutela judicial efectiva sin que la persona afectada tenga que formar parte del proceso, bastando su autorización. De este modo, se refuerza el papel del tercer sector cuando las organizaciones tengan entre sus fines la defensa y promoción de los derechos humanos, sin que se amplíen los ámbitos a defensas abstractas o mediáticas sin contenido real.

En este caso, la persona que sintió vulnerado su derecho a la igualdad de trato consultó con CESIDA la decisión de la DGT. Tres estudiantes, tutorizados por dos profesores, de la Clínica Legal de la Universidad de Alcalá, que colabora desde hace muchos años con CESIDA, consideraron que podría tratarse de un supuesto de discriminación directa por razón del estado serológico. La Clínica Legal de la UAH contactó entonces con la Fundación Fernando Pombo, que impulsa y coordina proyectos de asesoramiento jurídico pro bono para mejorar el Estado de Derecho. La Fundación Fernando Pombo consideró que se trataba de un tema estratégico para la consecución de sus fines e involucró también un equipo de abogados pro bono del despacho Gómez-Acebo & Pombo, y juntos planificaron la estrategia jurídica.

Ana Higuera, directora de la Fundación Fernando Pombo, destaca que “para nosotros participar en la defensa de este caso ha sido un estímulo para nuestra misión. La admisión de la reclamación por CESIDA, sin necesidad de una visibilidad individual de la persona con el VIH, representa un avance clave en el enfoque jurídico para evitar discriminaciones que, aunque no siempre son visibles, son reales. Además, el análisis que realiza la sentencia sobre cómo se ha producido la discriminación es claro y directo, lo que considero fundamental para concienciar sobre situaciones reales de discriminación y diferenciarlas de otras en las que el trato diferenciado es adecuado. En este sentido, creo que la sentencia es pedagógica y útil”.

Se trata de uno de los primeros casos que, conforme a la Ley 15/2022, se reconoce la legitimación de una asociación constituida con el fin de defender los derechos humanos para combatir una situación de discriminación en el ámbito del Derecho público.

La sentencia: discriminación por estado serológico en la renovación del permiso de conducir

El 24 de octubre de 2022 la DGT comunicó a Pedro (nombre ficticio) la renovación de su permiso de conducción reducida a la mitad de tiempo (5 años en lugar de 10) y la única razón aparente fue que éste comunicó en la revisión médica que tenía el VIH y tomaba el correspondiente tratamiento antirretroviral, sin que esto afectará en modo alguno a su capacidad de conducir.

Aunque la limitación de la renovación pudiera resultar poco relevante, el interés del caso está en la recurrencia con que situaciones similares a ésta se producen todos los días en la vida de las personas con el VIH, que siguen siendo estigmatizadas a pesar de los avances en el tratamiento y la prevención de la transmisión del virus gracias a la eficacia y seguridad de los fármacos antirretrovirales. Ante esta decisión de la DGT, Pedro autorizó a CESIDA a interponer un recurso contencioso-administrativo, lo que pudo hacerse gracias a la previsión del artículo 29 de la Ley 15/2022 que introduce la legitimación activa de las entidades sociales con ciertos requisitos.

Una vez practicada la prueba y expuestos los argumentos por el equipo de abogados pro bono del despacho Gómez-Acebo & Pombo que defendían la pretensión de CESIDA, el Juzgado de lo contencioso-administrativo falló en favor de CESIDA y ha anulado la resolución de la DGT por entender que la misma es discriminatoria. Esta sentencia es un pronunciamiento pionero en nuestro país. Textualmente dice:

“Pero es que la discriminación se produce de varias maneras. Se discrimina al solicitante al no seguirse el procedimiento establecido en el artículo 44.3 del Reglamento General de Conductores. Se discrimina al solicitante cuando en vía de recurso no se tiene en cuenta la previsión establecida en el propio apartado 13 del Anexo IV conforme a la que “excepto si el interesado acompaña un dictamen facultativo favorable”, informe que consta en el folio 10 del expediente administrativo en el que se indica que “la influencia del Dovato sobre la capacidad de conducir y utilizar máquinas es nula o insignificante (consultar ficha técnica)”. Se discrimina al solicitante cuando la decisión adoptada lo es de plano, como acredita el que el expediente administrativo se inicia con la reclamación del solicitante que se califica como recurso de alzada, sin que conste ninguna actuación previa.

Se trata de forma diferente al solicitante de la renovación, al que no se aplica la norma general establecida (renovación por plazo de diez años), se hace por su condición de seropositivo, sin motivación alguna y con ausencia del procedimiento que, en todo caso, estaría establecido para ello.”

Después de recibirse la sentencia, la DGT ya ha enviado a Pedro su nuevo permiso de conducir por el período general, sin excepciones, habiéndose, además notificado la firmeza de la sentencia hace unos días.

Un precedente contra la discriminación por razón del estado serológico

Miguel Ángel Ramiro, coordinador de la Clínica Legal de la Universidad de Alcalá, recalcó “Este caso sienta un precedente importante en España al ser un pronunciamiento pionero contra la discriminación por razón del estado serológico; así como para el reconocimiento de la legitimación activa de las entidades sociales”. Y añadió: “La participación de nuestros estudiantes en este proceso ha sido clave. No solo han aprendido sobre normas jurídicas aplicables y cuestiones procedimentales, sino que también han contribuido a la lucha por la igualdad y la justicia social, un aspecto fundamental en la formación de futuros profesionales.”

Oliver Marcos, secretario general de Cesida, enfatizó: “Animamos a las personas con el VIH a acudir a las asociaciones cuando sientan vulnerados sus derechos, evidenciando que de esta manera se logran cambios. Además, hacemos especial hincapié en que las administraciones públicas deben ser las garantes de la igualdad y evitar este tipo de discriminación en cualquier ámbito de su competencia.”

UK Parliamentary Reception Marks HIV Is Not A Crime Awareness Day

On Wednesday, 26th February, the HIV Justice Network (HJN) co-hosted a parliamentary reception in the UK Parliament in collaboration with the All-Party Parliamentary Group on HIV, AIDS and Sexual Health (APPGA) and the UK’s National AIDS Trust (NAT). The event, held to mark HIV Is Not A Crime Awareness Day, underscored the urgent need to combat HIV criminalisation in an era of rising global anti-rights movements and shrinking HIV funding.

Baroness Barker, Co-Chair of the APPGA, opened the event, acknowledging the significance of addressing HIV criminalisation within the broader context of human rights and public health.

The Global Scale of HIV Criminalisation

HJN’s Executive Director, Edwin J Bernard, was the first speaker, offering insights into the global state of HIV criminalisation, with a particular focus on Commonwealth countries. He highlighted key issues, including:

HIV criminalisation is state-sponsored stigma It punishes people living with HIV for acts that wouldn’t be crimes if they were HIV-negative, perpetuating discrimination and undermining public health efforts.
The scale of injustice is vast At least 80 countries have HIV-specific criminal laws, and prosecutions have taken place in at least 90 countries, with Commonwealth nations lagging in law reform.
Progress is happening, but remains under threat While 17 countries have reformed their laws, critical funding cuts jeopardise continued advocacy and reform efforts.
Sustained investment is essential Law reform takes time, and without long-term, flexible funding, the progress made could be reversed, leaving the most marginalised at risk.
The time to act is now Policymakers, funders, and advocates must step up to support efforts to end HIV criminalisation and ensure justice for people living with HIV.

Read the full text of his remarks here: HJN Executive Director’s Speech.

[Show picture list] Photos: Aditi Sharma

Insights from the UK: NAT’s New Report on HIV Criminalisation

Daniel Fluskey, Director of Policy, Research, and Influencing at NAT, presented key findings from NAT’s recently published report, Criminalisation of HIV Transmission: Understanding the Impact (read the report). The report offers several urgent recommendations for reform, including:

U=U should be central to legal considerations If an individual has an undetectable viral load, no investigation should take place.
Reckless transmission cases can force disclosure Legal proceedings can place individuals in unsafe situations, potentially exposing them to stigma and harm.
Police need comprehensive training Investigations must be fair, informed, and necessary to prevent unnecessary criminalisation.
Voluntary attendance should replace arrest Arrest should not be the default approach when investigating HIV-related cases.
All stakeholders must receive training Including people living with HIV, support staff, and clinicians, to ensure a more informed legal and healthcare environment.

A Personal Story: The Impact of Criminalisation

The event featured a powerful testimony from a man who was unjustly arrested for a crime that never existed—there was no risk, no harm. As a police officer himself, he never imagined he would experience such a humiliating and disproportionate arrest. Multiple officers arrived at his home and charged him with ‘attempted grievous bodily harm’ without explanation or the chance to respond.

It was only 20 hours into his unlawful detention, during disclosure before his interview, that he was finally told why he had been arrested. At that point, he disclosed his U=U status – evidence that should have prevented his arrest in the first place.

Although he was never formally charged, the case was eventually dismissed as “Entered in Error” after a review of his medical records. Yet, the arrest remains on his record, casting a shadow over his career and deeply impacting his mental health.

“I did nothing wrong,” he concluded, “yet I am still fighting for justice.”

The Forgotten Impact of Past Prosecutions

Sophie Strachan, Director of Sophia Forum, shared her own experience of being diagnosed with HIV while in prison more than two decades ago. She also highlighted the case of the first woman prosecuted in England & Wales for ‘reckless’ HIV transmission. Convicted in 2006 and sentenced to 32 months in prison, she was vilified by the media for a ‘crime’ that would not be prosecuted today under current guidelines.

Nearly 20 years later, this woman remains deeply affected by her conviction. Despite wanting to move forward, her criminal record has made it impossible for her to work or even volunteer. “She is a virtual recluse, terrified that people will still recognise her,” Sophie explained. Her case remains a stark reminder of the lasting impact of unjust prosecutions.

Building Momentum for Change

The reception was attended by members of the UK House of Commons and House of Lords, as well as representatives from UK and international NGOs, philanthropic funders, and advocates working to end HIV criminalisation worldwide.

The discussions reinforced the urgent need for continued advocacy, law reform, and investment to end the unjust criminalisation of people living with HIV. As our Executive Director emphasised: HIV is not a crime. The time to act is now.

HJN’s Executive Director’s remarks at the UK Parliamentary event commemorating HIV is Not a Crime Awareness Day

Today, on HIV Is Not A Crime Awareness Day, we are here to confront a grave injustice: HIV criminalisation. HIV criminalisation is not a public health tool, it is a human rights violation. It is state-sponsored stigma in its most extreme form.

We are here because people living with HIV are being jailed – even when there was no possibility of transmission – for not being able to prove they disclosed their status. We are here because women with HIV are being prosecuted for breastfeeding, simply for wanting to nourish their children. We are here because HIV criminalisation is never just about HIV.

People living with HIV are often targeted not only for their status but because of who they are, who they love, or how they survive—whether they are LGBTQ+, sex workers, migrants, or belong to other marginalised communities. HIV criminalisation is a proxy for deeper discrimination—rooted in racism, sexism, homophobia, transphobia, and xenophobia. The harshest punishments fall on those at the intersection of multiple stigmas. That’s why our fight must be intersectional and collaborative—because justice for people living with HIV is justice for all.

Our Global HIV Criminalisation Database reveals the scale of the problem:

80 countries have HIV-specific criminal laws.
90 countries have unjustly prosecuted people living with HIV, many of them applying general criminal laws.

But there is hope. Seventeen countries have repealed or reformed their HIV laws in the past decade. Change is happening. Yet, our latest analysis – undertaken by our Policy Analyst, Elliot Hatt – shows that the Commonwealth is falling behind global law reform trends. We cannot let this continue.

18 Commonwealth countries have HIV-specific laws, with four country hot-spots – Canada, the UK, India, and Singapore – accounting for nearly 80% of prosecutions across the Commonwealth.

At the HIV Justice Network, we don’t just highlight the problems – we drive solutions. We connect and support activists. We equip communities with tools, available for free in multiple languages through the HIV Justice Academy.

And we share success stories—like Zimbabwe, where we fought to repeal HIV criminalisation in 2022 and prevented its return in 2024. We will be launching our documentary and toolkit analysing how this was possible in a webinar co-hosted with the International AIDS Society next Wednesday, March 5th. (Register here)

So you see, HIV decriminalisation is possible, even in challenging political environments.

But it takes:

Community leadership—because change starts and ends with those most affected.
Parliamentary action—because laws don’t change without political will.
Global coordination—because no-one can fight this battle alone.
Sustained funding—because without resources, progress stalls.

We are deeply grateful to the Robert Carr Fund for supporting us over the past nine years, ensuring that the fight for HIV justice has borne fruit. But let me be clear—this fight is far from over.

With the United States and the Netherlands withdrawing their support, we are especially grateful to the UK government for its unwavering support of the Fund. But we are at a crossroads. The survival of the Fund, and the HIV Justice movement – of the organisations, networks, and communities working tirelessly to end HIV criminalisation – is now at risk.

This is not just a funding gap. This is a threat to progress.

Law reform does not happen overnight. It requires sustained, long-term, and flexible funding to build the momentum needed to dismantle unjust laws and systems that have oppressed people living with HIV for decades.

Without continued investment, we risk losing the gains we’ve fought so hard for. We risk silencing the voices of those on the frontlines. We risk leaving the most vulnerable people behind, afraid to access HIV services and to live fulfilling lives in dignity.

So, thank you for your support. And thank you to those funders in the room who understand that HIV is not a crime, and that real, lasting change takes time.

Advocacy, movement-building, and legal reform are not quick wins—but they are essential. If we want to achieve HIV justice worldwide then we must ensure that this work continues. The future of the HIV response – and the lives of 40 million people – depends on it.

Mexico: Advocacy organisation calls for the repeal of HIV criminalisation law in Tabasco

Tudyssex seeks to eliminate laws that criminalize people with HIV

Translated from Spanish with Google Translate; scroll down for original article.

The president of Tabasqueños Unidos por la Diversidad y la Salud Sexual (Tudyssex), José Cruz Guzmán Matías, said that they are preparing a proposal to eliminate the legal provisions that criminalize people living with HIV, for having sexual relations without a condom, describing them as discriminatory and obsolete.

Cruz Guzmán pointed out that the state’s Criminal Code contemplates penalties of up to six years in prison and fines for those who, living with communicable infections, are denounced for having unprotected sex.

The activist recalled that, a person with HIV who has adequate control with antiretroviral drugs, achieves that the virus is not only undetectable, but non-transmissible, so that he can lead a normal life, without risk of infecting others.

“The Penal Code includes an article dating back to 1940, when syphilis was the most feared disease. Today we know that HIV, with the appropriate treatment, does not represent a risk of transmission in these conditions. That’s why we ask for its elimination,” he explained.

In addition to the penalty, he also denounced civil rights limitations faced by people with HIV, such as the requirement to undergo medical tests before civil marriage.

According to the leader of Tudyssex, this measure can be used to deny marriage to HIV-positive people, despite the fact that both parties are informed and agree.

Busca Tudyssex que se eliminen leyes que criminalizan a personas con VIH

El presidente de Tabasqueños Unidos por la Diversidad y la Salud Sexual (Tudyssex), José Cruz Guzmán Matías, señaló que preparan una propuesta para eliminar las disposiciones legales que criminalizan a las personas que viven con VIH, por mantener relaciones sexuales sin condón, calificándolas de discriminatorias y obsoletas.

Cruz Guzmán señaló que el Código Penal del estado contempla penas de hasta seis años de prisión y multas para quienes, viviendo con infecciones transmisibles, sean denunciados por tener relaciones sexuales sin protección.

El activista recordó que, una persona con VIH que lleva un control adecuado con medicamentos antirretrovirales, logra que el virus sea no solo indetectable, sino intransmisible, por lo que puede llevar una vida normal, sin riesgo de contagiar a otros.

“El Código Penal incluye un artículo que data de 1940, cuando la sífilis era la enfermedad más temida. Hoy sabemos que el VIH, con el tratamiento adecuado, no representa un riesgo de transmisión en estas condiciones. Por eso pedimos su eliminación”, explicó.

Además de la penalización, también denunció las limitaciones en derechos civiles que enfrentan las personas con VIH, como el requisito de realizarse pruebas médicas antes del matrimonio civil.

Introducing Positive Destinations:
Information and Advocacy on Travelling
and Relocating with HIV

Today, on International Migrants Day, the HIV Justice Network is thrilled to announce the relaunch of The Global Database on HIV-specific Travel and Residence Restrictions (HIVtravel.org) under a new name: Positive Destinations (www.positivedestinations.info). This rebranding reflects a bold vision for the future — empowering people living with HIV through accessible information, advocacy, and resources to promote freedom of movement and challenge stigma worldwide.

Positive Destinations represents hope, progress, and the belief that every journey should be free of archaic barriers and unjust discrimination. This enhanced platform provides up-to-date, accurate information on restrictions affecting people living with HIV who want to travel, relocate or migrate, and serves as a vital advocacy portal to push for the removal of discriminatory laws, policies and practices.

“This rebrand to Positive Destinations reflects our commitment to a world where people living with HIV, in all our diversities, can enjoy our human rights and live in dignity, without fear of unjust criminalisation, regulation or control,” said HIV Justice Network’s Executive Director, Edwin J Bernard. “With this platform, we aim to amplify the voices of those most affected and build a movement that challenges and changes unjust, unscientific policies. Travel or relocation for love, work, family or pleasure should be available to everyone, regardless of HIV status, and we are dedicated to ensuring that every destination is a truly positive destination for all.”

Why the change?

HIVtravel.org has been a trusted resource for more than two decades. The name Positive Destinations better reflects its mission to provide expanded information and tools to promote freedom of movement and uphold human rights, paving the way for a world where people living with HIV can explore, connect, and thrive without prejudice.

Expanding our vision: Positive Destinations goes beyond providing entry, stay and residence restrictions information to also covering information on access to HIV services for non-nationals.
Accessible advocacy tools: The platform equips users with news and resources to challenge unjust restrictions.
Community-focused: It highlights stories of successful advocacy and personal testimonies of lived experience to foster understanding and solidarity.

What’s new on Positive Destinations?

Redesigned website: A completely redesigned user-friendly interface – optimised for mobile phones – that makes accessing critical travel and treatment access information seamless.
Latest news: News stories about advocacy or information relating to HIV-related travel or migration curated from reliable sources around the world.
Advocacy resources: Practical tools for individuals and organisations to advocate for change.
Links to local organisations: Where available we link to organisations in-country that can help migrants with HIV to access services.
Global perspectives: Personal stories highlighting the challenges and triumphs of navigating the world as people living with HIV in all our diversities.

Visit the new platform at www.positivedestinations.info.

About the HIV Justice Network

The HIV Justice Network (HJN) is the leading community-based NGO building a co-ordinated, effective global response to punitive laws and policies that impact people living with HIV in all our diversities. In 2024, HJN took over the running of the hivtravel.org website, rebranding it as Positive Destinations.

Acknowledgments

This project has been made possible with the provision of a financial grant from Gilead Sciences Europe Ltd.

We acknowledge previous funders and contributors to The Global Database on HIV-specific Travel and Residence Restrictions (hivtravel.org) including Deutsche Aidshilfe, European AIDS Treatment Group (EATG), the International AIDS Society (IAS), Positive Council (Switzerland). We would especially like to thank the original authors David Haerry and Peter Wiessner.