UNAIDS “extremely concerned” by new COVID-19 laws that target people living with or vulnerable to HIV

This week, echoing the concerns of the HIV JUSTICE WORLDWIDE Steering Committee, amongst others, UNAIDS issued a strongly worded press release condemning governments for abusing the current state of emergency over the COVID-19 pandemic for overreaching their powers and enacting laws that target people who are living with, or vulnerable, to HIV.

“In times of crisis, emergency powers and agility are crucial; however, they cannot come at the cost of the rights of the most vulnerable,” said Winnie Byanyima, Executive Director of UNAIDS. “Checks and balances that are the cornerstone of the rule of law must be exercised in order to prevent misuse of such powers. If not, we may see a reversal of much of the progress made in human rights, the right to health and the AIDS response.”

Notably, UNAIDS singles out EU member states, Hungary and Poland.

In Hungary, a new bill has been introduced to remove the right of people to change their gender and name on official documents in order to ensure conformity with their gender identity, in clear breach of international human rights to legal recognition of gender identity.

In Poland, a fast-tracked amendment to the criminal law that increases the penalties for HIV exposure, non-disclosure and transmission to at least six months in prison and up to eight years in prison has been passed—a clear contravention of international human rights obligations to remove HIV-specific criminal laws.

In addition, UNAIDS condemns overly zealous policing that is especially targeting key populations already stigmatised, marginalised, and criminalised.

UNAIDS is also concerned by reports from a number of countries of police brutality in enforcing measures, using physical violence and harassment and targeting marginalized groups, including sex workers, people who use drugs and people who are homeless. The use of criminal law and violence to enforce movement restrictions is disproportionate and not evidence-informed. Such tactics have been known to be implemented in a discriminatory manner and have a disproportionate effect on the most vulnerable: people who for whatever reason cannot stay at home, do not have a home or need to work for reasons of survival.

They single out Uganda where “23 people connected with a shelter for providing services for the LGBTI community have been arrested—19 have been charged with a negligent act likely to spread infection or disease. Those 19 are being held in prison without access to a court, legal representation or medication.”

They also highlight Kenya as a model of cjvil society rapid response to human rights concerns following the release of an advisory note “calling for a focus on community engagement and what works for prevention and treatment rather than disproportionate and coercive approaches.”

The statement concludes:

While some rights may be limited during an emergency in order to protect public health and safety, such restrictions must be for a legitimate aim—in this case, to contain the COVID-19 pandemic. They must be proportionate to that aim, necessary, non-arbitrary, evidence-informed and lawful. Each order/law or action by law enforcement must also be reviewable by a court of law. Law enforcement powers must likewise be narrowly defined, proportionate and necessary.

UNAIDS urges all countries to ensure that any emergency laws and powers are limited to a reasonable period of time and renewable only through appropriate parliamentary and participatory processes. Strict limits on the use of police powers must be provided, along with independent oversight of police action and remedies through an accountability mechanism. Restrictions on rights relating to non-discrimination on the basis of HIV status, sexual and reproductive health, freedom of speech and gender identity detailed above do not assist with the COVID-19 response and are therefore not for a legitimate purpose. UNAIDS calls on countries to repeal any laws put in place that cannot be said to be for the legitimate aim of responding to or controlling the COVID-19 pandemic.

UNAIDS recently produced a new guidance document that draws on key lessons from the response to the HIV epidemic: Rights in the time of COVID-19: lessons from HIV for an effective, community-led response.

Criminalisation laws are harmful for the vulnerable communities affected and for overall public health

Decriminalizing Sex Work, HIV and Substance Use Is the HIV Prevention Strategy We Need

Though maybe not nationally recognized yet, the push to decriminalize sex work, substance use, and HIV has been one of the strongest and fiercest movements of our time. Activists globally are working with legislators to introduce bills that protect communities from harmful laws that keep innocent people behind bars.

You may have heard of activists’ efforts to legalize things that are currently illegal, like marijuana. Legalization, though it sounds progressive, often means including federal and state government. Due to the controlled and contained nature of legalization, it generally introduces added police and militarized involvement, which further harms communities already affected by the abusive behavior of police presence and force. This is why advocates often aim for decriminalization rather than legalization.

As the HIV epidemic progressed, we saw scientific advances in HIV prevention and treatment, including the knowledge of treatment as prevention, or “TasP,” the reality that effective treatment prevents the spread of HIV. This came alongside rapid testing and pre-exposure prophylaxis (PrEP), which are all steps people can take to prevent HIV transmission, depending on access to these avenues of preventative care. And while all of these are interpersonal ways that people can reduce HIV transmission, there is a structural tool that can use existing movements to prevent HIV—decriminalization. It’s what I call DasP, or decriminalization as prevention.

Feeling a little lost? Don’t worry. I’ll unpack everything step by step.

Decriminalizing Sex Work as Prevention

Sex workers continue to be some of the least protected people in our society, despite the long history of sex work as a profession. Sex work criminalization can include one of many things: criminalizing people for having condoms, jailing people for solicitation or for simply even walking while appearing to be engaging in sex work (locally known as “Walking While Trans” bills). The most recent and well-known example of criminalizing sex work is most likely FOSTA-SESTA, the federal law that penalizes sites like Craigslist and Backpage simply for hosting ads advertising sex work, even though those sites allowed sex workers to screen clients and stay safe.

With sex-work criminalization comes escalated intimidation from law enforcement, fear of seeking services from health care providers, and unsanitary working environments. Due to the covert and stigmatized culture of sex work (even at times as a direct result of criminalization), workers are forced to perform in isolated areas and are typically rushed while having sex, therefore not being able to use condoms. Many sex workers have also witnessed police destroying, confiscating, and using condoms as physical evidence to incarcerate. All of this instilled fear results in a decrease in sexual empowerment and a spike in HIV transmission rates for sex workers who do not feel permitted to access and adapt preventative care (such as PrEP and TasP). If we make a considerable effort to decriminalize sex work, studies show that we have the ability to drastically reduce HIV transmissions by 33% to 46% worldwide.

But why stop at decriminalizing sex work, when we can legalize it? The legalization of sex work, though sounding seemingly “progressive,” results in heavier regulations by government agencies, which in turn still criminalize sex workers who do not comply with existing law. Legalizing would also disproportionately affect communities that continually get harassed by discriminatory policing (including but not limited to undocumented people, drug users, and people living with HIV).

Decriminalizing Substance Use as Prevention

Although there is no federal ban on needle-exchange programs, prior to 2016, there was a funding ban for the government to use any money to support such programs. Still, there are currently 15 states in the U.S. that ban needle-exchange programs. For instance, when HIV advocates saw that Mike Pence was slated to lead efforts to confront coronavirus nationally, they referenced his response to an HIV outbreak in Scott County, Indiana. As governor, Pence actively delayed implementing needle-exchange programs across the state up until the federal Centers for Disease Control and Prevention intervened.

We know that as with sex work, drug decriminalization combined with needle exchange, harm reduction, and safe consumption sites have proven to drastically decrease HIV transmissions. Currently, drug-related offenders comprise 191,000 of the 1.3 million people in state prisons, 157,000 of the 631,000 in local jails, and 100,000 of the 226,000 people in federal prisons, according to the Prison Policy Initiative.

Portugal decriminalized drug use in 2001. Data showed that, along with overdoses and drug-related crimes, the number of HIV transmissions descended from a high of 104.2 new transmissions per million in 2000 to 4.2 new transmissions per million in 2015. Although these numbers were specific to harm reduction, one can argue that harm reduction combined with decriminalization was a recipe for a radical and forceful decrease.

In addition to Portugal, the Czech Republic, the Netherlands, and Switzerland also have passed sweeping drug decriminalization bills. A 2019 UNAIDS report showed that once these bills were passed, the four countries invested in public programs that used harm reduction as a tool for substance users. The rates of HIV transmission among injection drug users in these countries are currently visibly low.

The report also proved that people who live in communities that have access to harm reduction services are more likely to get tested and therefore adhere to treatment if they test positive. Having empowering and affirming programs gives users support and not the fear and stigma that fuel new HIV transmissions.

Decriminalizing HIV as Prevention

Most HIV criminalization laws were introduced and passed during the early years of the epidemic, before there was effective medication. Fear of the virus created hysteria among legislators, and many wanted people (and communities) to blame for the rate of transmissions.

Many activists have historically argued that HIV criminalization laws were based on homophobic and racist bias. The Ryan White CARE Act, which continues to be a driving force getting Americans lifesaving treatment and prevention, required states to show that they made efforts to criminalize individuals who exposed people to HIV. Currently there are 34 states and two U.S. territories that criminalize people transmitting HIV. Although laws differ from state to state, as the American Academy of HIV Medicine states, “Many of these laws are applicable whether or not actual harm has been demonstrated or caused.”

Just this past January, New York City’s Port Authority Police Department arrested an HIV-positive man at LaGuardia Airport for spitting into an officer’s mouth. The police report and the CBS News article alerting the public that followed spread false information, stating that the officer was in danger of contracting HIV. As we know, HIV cannot be spread via saliva, yet the report included that the HIV-positive man had a “lethal weapon” on him. Since the report was not detailed, many advocates implied that the “lethal weapon” was the individual’s status. This is one of many examples of recent criminalization across the U.S.

Through the scientific advancements of treatment, testing, and prevention, we know that there is zero percent of transmission sexually from a person who is on successful HIV treatment (undetectable equals untransmittable, or U=U), we know that individuals will be less likely to transmit HIV if they know their status, and we know that PrEP is 99% effective to stop the transmission of HIV. We also know that through active criminalization laws, individuals are less likely to get tested out of fear of having HIV. A majority of criminalization laws only incarcerate if the individual knows their status. A study in Toronto between 2010 and 2012 showed that 7% of men who had sex with men were less likely to get an HIV test for fear of future prosecution. The same study also explained that the fear of knowing their status could lead to an 18.5% increase in HIV transmission. Additionally, people living with HIV who are in criminalization states fear seeking treatment, which is not only a detriment to their own health, but also to public health, because, as a result, HIV continues to spread.

We also know in 2020 that HIV is no longer a death sentence. People living with HIV live long and healthy lives, and are actually more in tune with their own physical health. If anything, active HIV criminalization laws enable and breed stigma and discrimination against people living with HIV and the communities disproportionately affected by it.

There has been a recent movement in HIV criminalization reform, as recently as weeks ago in Washington State, where legislators moved to reduce penalties for people transmitting HIV. This similar modernizing of HIV criminalization laws has also passed in states like California, where Rep. Barbara Lee has led the national charge with these repeals. She introduced the REPEAL HIV Discrimination Act back in 2011 in the House of Representatives, then reintroduced the bill in 2017.

In her own words:

“HIV criminalization laws are based on bias, not science. Instead of making our communities healthier, these laws breed fear, discrimination, distrust, and hatred. Punishments under these laws or statutes include decades-long sentences and sex offender registration, even for behaviors and situations that pose no HIV transmission risk. These dangerous and stigmatizing laws undermine public health and can contribute to worsening the HIV epidemic—and are one of the top 4 reasons why people living with HIV do not seek medical care. Our laws should not perpetuate prejudice against anyone, particularly against those living with diseases like HIV. By introducing this legislation, we are sending a signal that discrimination and stigma have no place in our laws. We must all keep fighting to ensure everyone can live with dignity and respect, and to one day achieve an AIDS-free generation.”

To end the epidemic, we—as Rep. Lee states—need to trust science, not bias.

Decriminalizing COVID-19

With a continuing pandemic at our feet, we are already seeing how the government can prey on the marginalized during a public health crisis. As ProPublica reports, an alarming rate of Black and Brown Americans are contracting and dying of coronavirus. We also know that the hardest hit by new HIV transmissions are Black and Brown people, mostly in Southern states. They are also the most frequent victims of criminalization laws.

We are already seeing the beginnings of COVID-19 criminalization. As recently as March 25, officers in a Chicago Police Department station arrested a man who entered the precinct and coughed on them. He was arraigned for “reckless conduct.” The Department of Justice is planning to charge people as “terrorists” if purposefully exposing coronavirus to others. Additionally, Mayor de Blasio of New York announced on March 29 that the New York Police Department will begin fining people between $250 and $500 if they do not practice social distancing. Gov. Cuomo also voiced support for enforcing social distancing in New York State.

Many advocates say that these examples are a pathway to criminalization. As a response to these and similar offenses in countries such as Bulgaria, Canada, Peru, and South Africa, the HIV Justice Network (a global advocacy hub fighting HIV criminalization) released a statement, voicing, “Communicable diseases are public health issues, not criminal issues.”

As we see New York City jails become the epicenter of the pandemic in the world, we must reiterate that jails are not beneficial to public health. With overcrowded and unsanitary prisons come exponential numbers of transmission rates of both HIV and COVID-19. It is imperative that we mobilize and introduce sweeping decriminalization bills to radically reduce HIV and COVID-19 transmissions. These laws are not only harmful for the vulnerable communities affected, but for overall public health.

To learn more, the author implores readers to follow Decrim NY, DECRIMNOW, SWOP Brooklyn, and Red Canary for movement work on sex work decriminalization, Harm Reduction Coalition and VOCAL NY for movement work on drug decriminalization and harm reduction, and The Sero Project, ACT UP NY, HIV Is Not a Crime, and HIV Justice Network for movement work on HIV decriminalization.

HIV JUSTICE WORLDWIDE Steering Committee
Statement on COVID-19 Criminalisation

Communicable diseases are public health issues, not criminal issues: what we have learnt from the HIV response

Measures that are respectful of human rights and the empowering of communities are more effective than punishment and imprisonment.

As the world struggles with a new global pandemic, law- and policymakers are taking drastic measures in an attempt to minimise the spread of SARS-CoV-2, the virus that causes COVID-19. The situation continues to evolve rapidly and, as it does so, our liberties are being limited in unprecedented ways.

We remind law- and policymakers that each and every limitation of rights should satisfy the five criteria of the Siracusa Principles, as well as be of a limited duration and subject to review and appeal. These principles are:

The restriction is provided for and carried out in accordance with the law;
The restriction is in the interest of a legitimate objective of general interest;
The restriction is strictly necessary in a democratic society to achieve the objective;
There are no less intrusive and restrictive means available to reach the same objective;
The restriction is based on scientific evidence and not drafted or imposed arbitrarily, that is in an unreasonable or otherwise discriminatory manner.

We also warn law- and policymakers against the temptation to use the criminal law or other unjustified and disproportionate repressive measures in relation to COVID-19. These measures can be expected to have a devastating impact on the most vulnerable in society, including those who are homeless and/or living in poverty, as well as individuals from marginalised and already stigmatised or criminalised communities – especially where no economic and social support is provided to allow people to protect themselves and others, including through self-isolation.

As a global coalition campaigning to abolish criminal and similar laws, policies and practices that regulate, control and punish people living with HIV based on their HIV-positive status, we know the deleterious consequences of the criminalisation of diseases on both human rights and public health.

Criminalisation disproportionately impacts the most marginalised, stigmatised and the already criminalised people and communities in society.

Criminalisation is not an evidence-based response to public health issues. In fact, the use of the criminal law most often undermines public health by creating barriers to prevention, testing, care, and treatment – for example, people may not disclose their status or access treatment for fear of being criminalised. It can also lead to ill-informed ‘trial’ by social and news media, and to a myriad of human rights violations, from arbitrary arrests and detentions to unfair trials (or no trials at all under new emergency measures) and harsh prison sentences. This can also lead to the spread of infections and communicable diseases in prisons and is of particular relevance in the context of COVID-19, which reveals, once again, the need to address overcrowding and other poor healthcare and sanitation conditions that are all too common in prisons and other closed settings.

Our experience has taught us that hastily drafted laws, as well as law enforcement, driven by fear and panic, are unlikely to be guided by the best available scientific and medical evidence – especially where such science is unclear, complex and evolving. Given the context of a virus that can easily be transmitted by casual contact and where proof of actual exposure or transmission is not possible, we believe that the criminal justice system is unlikely to uphold principles of legal and judicial fairness, including the key criminal law principles of legality, foreseeability, intent, causality, proportionality and proof.

The human rights of those involved in criminal cases related to COVID-19 are at risk of being ignored or violated.

We therefore urge law- and policymakers, the media, and communities at large, to keep human rights front and centre as we collectively respond to a new public health crisis in a climate of fear and uncertainty. It is more critical than ever to commit to, and respect, human rights principles; ground public health measures in scientific evidence; and establish partnerships, trust, and co-operation between law- and policymakers and communities.

The HIV JUSTICE WORLDWIDE Steering Committee, comprising: AIDS Action Europe; AIDS and Rights Alliance for Southern Africa (ARASA); Canadian HIV/AIDS Legal Network; Global Network of People Living with HIV (GNP+); HIV Justice Network; International Community of Women Living with HIV (ICW); Positive Women’s Network – USA; Sero Project; and Southern Africa Litigation Centre.

Additional references

Last week, a group of human rights experts at the United Nations warned governments against the abuse of emergency measures to suppress human rights:

“While we recognize the severity of the current health crisis and acknowledge that the use of emergency powers is allowed by international law in response to significant threats, we urgently remind States that any emergency responses to the coronavirus must be proportionate, necessary and non-discriminatory,” the experts said. “Restrictions should be narrowly tailored and should be the least intrusive means to protect public health.” Also, authorities must seek to return life to normal and must avoid excessive use of emergency powers to indefinitely regulate day-to-day life.”

UNAIDS also issued guidance last week that included a number of recommendations, including recommending that States “avoid the use of criminal laws when encouraging behaviours to slow the spread of the epidemic”, noting that empowering and enabling people and communities to protect themselves and others will have a greater overall effect.

And, as described in a recent open letter by more than 800 public health and legal experts in the United States providing recommendations to government officials: “Voluntary self-isolation measures [combined with education, widespread screening, and universal access to treatment] are more likely to induce cooperation and protect public trust than coercive measures and are more likely to prevent attempts to avoid contact with the healthcare system.”

US: Lawmakers fail to pass HIV modernisation bill in Florida

Ending the Epidemic in Florida Must Include Ending HIV Criminalization

“Lawmakers Finally Pass HIV Modernization Bill in Florida to End HIV Epidemic by 2030.”

This should have been the headline at the end of the Florida legislative session in Tallahassee, which concluded on March 12. Instead, Florida lawmakers missed the opportunity to pass common-sense legislation for an easy bipartisan win that could benefit all Floridians. The HIV modernization bills sponsored by state Rep. Nick Duran and Sen. Jason Pizzo would have modernized Florida’s outdated HIV-specific laws written in the early ’80s, which do not reflect the scientific and social reality of HIV today. Florida is both the epicenter of the HIV epidemic in the United States and one of the states that continually sends people to prison for nondisclosure of HIV status. If we’re ever going to end the HIV epidemic in the U.S., we will have to end it in Florida. And we have to end HV criminalization in the state to achieve the goal of ending the epidemic.

The HIV prevention bills in the Florida House and Senate introduced this year were designed to align Florida’s outdated HIV laws with the current science of prevention and treatment. The new law would have required actual HIV transmission in order to convict—but it allows for exceptions “if he or she in good faith complies with a treatment regimen prescribed by his or her health care provider or with the behavioral recommendations of his or her health care provider or public health officials to limit the risk of transmission, or if he or she offers to comply with such behavioral recommendations, but such offer is rejected by the other person with whom he or she is engaging in sexual conduct.” It would also reduce harsh penalties (from a felony to a misdemeanor) for nondisclosure. Lastly, the bill would allow for organ donation between people of shared HIV status, which has been legal at the federal level since 2013.

While the bill did not advance this session, lawmakers did demonstrate resounding support for updating Florida’s law that makes it a felony for someone living with HIV to donate organs, tissue, blood, or plasma to someone else living with HIV. A provision to remove the felony and allow for such donations was added into a bill that unanimously passed the House and a bill that unanimously passed the Senate. Unfortunately, neither bill ultimately made it to the governor’s desk to be signed into law. According to a report by the Williams Institute, an average of 35 people are arrested in Florida every year for HIV-related offenses all across the state, but mainly in Central and North Florida.

The provision doesn’t just benefit people living with HIV by expanding their potential donor pool; when anyone receives an organ, everyone on the organ-donor waiting list benefits by being bumped up a spot. Last year, the national story of Nina Martinez and the first successful transplant of a kidney between two people of shared HIV status gave hope to those people who could benefit from the practice.

“Allowing patients with HIV to donate organs to people living with HIV who need them is just common sense,” said Howard Grossman, M.D., an HIV physician and researcher based in South Florida. “Organ donation already involves extensive screening, testing, and informed-consent protocols. What reason could rational people have to deny lifesaving therapy when it is readily available? Many states have already approved such procedures, with excellent results.”

But the states, including Florida, have more work to do. The Trump administration announced Ending the HIV Epidemic: A Plan for America in February, 2019. The end of HIV was mentioned again in the latest State of the Union address. The plan aims to reduce HIV transmissions by 90% by 2030. It allocates funding to the most impacted areas identified by the Centers for Disease Control and Prevention, including seven states, two cities, and 48 counties where at least 50% of people living with HIV in the U.S. currently reside, areas that have some of the highest diagnosis rates in the country. Most of those jurisdictions are in the southern states, and seven Florida counties have been identified as focus areas in the initiative (Broward, Duval, Hillsborough, Miami-Dade, Orange, Palm Beach, and Pinellas counties).

Fixing outdated criminalization laws must be part of the calculus when policymakers consider the range of social determinants of HIV. Without reforming laws that unjustly criminalize people based on their HIV status, we cannot end the epidemic. The American Medical Association has opposed HIV criminalization since 2014, when the organization published a statement calling for the modernization of laws as part of a public health response to the epidemic. Current Florida law criminalizes people living with HIV, working against public health policy by keeping people from seeking testing and treatment.

Florida saw broad, bipartisan support for HIV modernization last session, when House and Senate committees passed the HIV modernization bills, even though they ultimately did not pass the full chambers. We hope for broader HIV criminalization reform from the Florida Legislature. Last year, the Florida Infectious Disease Elimination Act (IDEA) was passed, expanding needle-exchange programs throughout the state. This law built on the success of a pilot project implemented by the University of Miami to help reduce HIV and hepatitis C transmissions, spearheaded by HIV advocate and professor Hansel Tookes, M.D., M.P.H.

The Florida HIV Justice Coalition represents just part of the worldwide HIV criminal reform movement, which has the support of major organizations and professional groups like the World Health Organization, American Medical Association, UNAIDS, and the Presidential Advisory Council on HIV/AIDS (PACHA).

There is no hyperbole in the claim that the current HIV modernization legislation will affect the lives of all Floridians. This session’s progress toward modernizing organ donation was an important step in the road to fully modernizing the HIV-specific laws of the state. Modernizing organ donation is long overdue, and its potential to save lives cannot be underestimated. The inclusion of people living with HIV as organ donors can also eliminate some of the undue stigma still prevalent in our state. That stigma underlies all of Florida’s outdated HIV laws.

The time to fully modernize Florida’s outdated HIV laws is now.

[Update]US: Washington legislators approve bill reducing the severity of charges in cases of alleged HIV transmission

Washington Legislature Ease Penalties for HIV Exposure

OLYMPIA, Wash. — The Washington Legislature on Tuesday approved a bill that reduces the crime of intentionally exposing a sexual partner to HIV from a felony to a misdemeanor.

Supporters of the change to the rarely used law say the current penalties don’t have an effect on reducing transmissions or improving public health. Opponents argued the move diminishes the significance of the impact on a person who is unknowingly infected.

The House passed the bill on a 57-40 vote last month, and the Senate passed it on a 26-23 vote Tuesday. The measure now heads to Gov. Jay Inslee, who supports the bill and is expected to sign it.

Democratic Sen. Annette Cleveland said that the bill modernizes criminal statutes and recognizes “advancements in medical science that have rendered HIV a treatable disease.”

“I realize that this disease evokes fear and emotion even today,” she said. “I understand that the laws that are currently on the books were originally meant to protect people from HIV, yet three decades later we know that instead these laws have only increased the stigma and led to abuse.”

The legislation, which was requested by the state Department of Health, also calls for more intervention from local and state health officers, allowing them to recommend options ranging from testing to counseling. They could even mandate treatment for an individual determined to be placing others at risk.

The Senate rejected a Republican floor amendment that would have maintained the current criminal felony charge, as well as two others that would have imposed a felony charge for people on their second or third conviction.

Republican Sen. Maureen Walsh said there were several elements of the bill that she agreed with, but she couldn’t support it with the reduction of penalties for intentional transmission.

“There is nothing but malice behind a person who would go out and knowingly infect another individual with, frankly, a life sentence,” she said. “And I realize a lot of people are living longer, but they’re spending a lot of money on drugs.”

Under current law, a person can be charged with a felony for exposing or transmitting HIV to another person and could face as much as life in prison and a $50,000 fine, depending on the circumstances. Under the bill approved by the Legislature, that crime becomes a misdemeanor that could carry a penalty of 90 days in jail and a $1,000 fine if a person is infected. In cases where someone lies about their HIV status, it becomes a gross misdemeanor, with penalties of up to a year in jail and a $5,000 fine. An amendment accepted in the House maintains the felony charge for someone who intentionally transmits HIV to a child or vulnerable adult, and requires them to register as a sex offender.

Between 1986 and 2019, there have been 33 criminal cases filed under the current HIV-related statutes, according to the Department of Health. Three of those cases resulted in a felony conviction.

The Department of Health says there are an estimated 14,744 people in the state living with HIV, with about 81 percent of them virally suppressed, meaning they are unable to transmit the virus.

The Center for HIV Law & Policy says Washington is among 29 states with HIV-specific laws. Once Inslee signs the measure into law, Washington will join seven other states that have reformed or repealed one or more parts of criminal laws specific to HIV.

The proposal is not as expansive as changes made by California, which in 2017 passed a law that reduced penalties for knowingly exposing a sexual partner to HIV from a felony to a misdemeanor. The California law also reduced charges for a person with HIV who knowingly donates blood, tissue, semen or breast milk from a felony to a misdemeanor.

Other states that have introduced bills this year on reforming HIV-specific laws include Ohio, Florida and Virginia.

WA Democrats hope to reduce criminal penalties for intentionally spreading HIV

Published in My North West on 15/02/2020

It’s been a law on the books for decades – anyone busted for intentionally infecting someone with HIV faces felony first degree assault.

Under a controversial bill passed by the House this week, that crime would be lowered to a misdemeanor or gross misdemeanor, depending on the circumstances.

Republicans unanimously rejected the measure in the House, contending, among other things, that lowering the punishment puts the public at risk.

But supporters argue the state’s current law, enacted in the ’80s and only updated with a few minor changes in the ’90s, is outdated and increases stigma surrounding HIV, which in turn damages public health efforts.

The bill, HB 1551, originally sponsored by current Speaker of the House Democrat Laurie Jinkins and now sponsored by Democratic Rep. Eileen Cody, is a wide ranging bill that makes multiple changes to state law regarding mandatory testing for HIV, what the public health departments can and cannot do in investigating, and allowing minors to get treatment for HIV without parental consent, but the provision creating the bulk of the controversy is the reduction of the crime relating to intentionally infecting a person with HIV.

Supporters of the bill say the criminalization of HIV has only led to increased stigma that damages ongoing public efforts, according to the 2016 report from the End AIDS steering committee.

“Criminalizing us with a felony A for having a disease state … that’s not a banner I can get behind anymore, and frankly that doesn’t make people want to rush out and get engaged with public health,” Scott Bertani, an HIV positive man and Lifelong AIDS Alliance member, told lawmakers at a hearing on the bill last session.

“HIV is not the same disease as it was over 30 years ago,” said Lauren Fanning with the Washington HIV Justice Alliance. “The law contributes to stigma so many people with HIV feel by how others treat them like they are dirty and they have a great deal of difficulty overcoming that in their lives.”

Fanning also testified at last year’s committee hearing.

“The law creates fear of being tested, fear of accessing healthcare, and undermines the trust and prevention care and treatment systems impacting our marginalized communities the most,” Fanning added.

Nearly a year later, on the House floor this week, Democratic Rep. Nicole Macri said changing the law was long overdue and would decrease stigma while strengthening public health by finally treating HIV like the disease it is.

“A treatable, a chronic illness, and not a moral failing or criminal justice issue,” Macri said.

But Republicans argued the changed law would put the public at risk by making the crime and penalty for intentionally infecting a person with HIV the same as it is for stealing a candy bar.

Rep. Michelle Caldier said it would have other unintentional consequences by removing a tool for prosecutors who use the HIV felony crime as a method to convict rapists.

“Those rape victims deserve a voice,” Caldier said. “And what’s going to happen to all those rape victims where they were able to prosecute this? And now we’re going to reduce the sentence. We’re going to let those rapists go free. I’m not OK with that! And it breaks my heart that so many people on this floor are.”

Macri painted this bill as a compromise, telling fellow lawmakers that many of her constituents want to completely decriminalize HIV.

Kristin Bergtore Sandvik explores how the criminalisation of infectious diseases can hinder global health interventions

Governing global health emergencies: the role of criminalization

The point of departure for this blog is the apparent frequency of criminalization strategies in early government responses to the Coronavirus. While much attention has been given to the securitization of global health responses – also in the case of Corona – less systematic focus has been given to the partial criminalization of infectious diseases as a strategy of global health governance.

As the scope of the Corona outbreak is broadening, the number of countries deploying criminalization measures is also rapidly increasing. China has introduced harsh regulations to deal with the Coronavirus, including ‘medical-related crimes’ involving harassment and violence against medical personnel, refusal to submit to quarantine and obstructing dead body management. Singapore and Hong Kong have criminalized the breach of travel restrictions and misleading authorities or spreading false rumours. Taiwan plans sentencing the violation of quarantines. Iran will flog or jail people who spread false rumours. A Russian prankster is facing jail-time for Corona ‘hooliganism’. In the US, prospective quarantine violators from the infamous cruise ship Diamond Princess were facing fines or jail time. Beyond governments’ need to be seen doing something in the face of public panic across the Global East and the Global North, how should we think about this propensity to reach for penal measures?

How we explain disease and whom we blame are highly symptomatic of who we are and how we organize our relations with others, in particular the practices and life forms of marginalized elements of society. This will also likely be the legacy of Corona. Moreover, current global health responses to infectious diseases remain bound up with both colonial-era and historical command-and control trajectories of response and needs to be understood in context.

In this blog, I map out three categories of criminalization. My assumption is that the Corona response will likely involve all three in some form or other. I take the broad conceptualizations of criminalization in circulation in legal, policy and media discourse as the starting point: this includes criminal law sanctions and administrative and disciplinary sanctions as well as popular perceptions of the uses of penal power and social ‘criminalization-talk’. The idea is that criminalization can be understood as a strategic tool with multiple constitutive uses in the global health field.

In the following, I outline three different things that criminalization ‘does’ in the global health field, which may serve as a resource for thinking about how criminalization will shape approaches to the Corona virus.

First, I am interested in the direct and indirect criminalization of health care delivery through the criminalization of individuals infected with or suspected of being infected with specific infectious diseases. The problem with this approach is that it risks aggravating humanitarian suffering because it is either premised on criminalizing the practices and attributes of groups that are already in a marginal position, or that with infection, patients immediately become socially or economically ‘marginalized’ which allows for criminal interventions. This category of criminalization covers transmission, exposure, interaction with ‘vulnerable groups’ (such as children), failure to disclose or simply physical movement. It relies significantly on the mobilization of othering and of metaphors of fear. The global health response may also be undermined through the de facto criminalization of individuals by way of the use of compulsory health powers such as surveillance, contact tracing, compulsory examination and treatment, regulation of public meeting places, quarantines and forced isolation of individuals.

These regimes might be so repressive as to have severe humanitarian impact on the populations concerned. Human suffering here does not emanate from the inability to offer health care but from the human rights violations arising from how fear and stigma fuel criminalization of ‘vulnerable/deviant/threat groups (such as drug users, those with precarious migration status, sex workers and the LGBTI population) and how criminalization in turn produces further deviance and marginalization. A characteristic of early phases of epidemics is that certain groups are singled out as risky and characterized as dangerous, allowing for repressive public health interventions.

At the same time, fear of harassment, arrest and detention may deter people from using health services. A ‘deviant’ social status combined with health status may lead to discrimination and ill-treatment by health care providers. Criminalization is linked to high levels of harassment and violence, reported by lesbian, gay, transgender people and sex workers around the world (see here and here). Notably, in the context of HIV/AIDS, criminalization, and quarantine and individual responsibility for disclosure have been considered as key tools to halt or limit transmission, despite innovations in treatment that radically transform the nature and lethality of HIV/AIDS. Globally, prosecutions for non‐disclosure, exposure or transmission of HIV frequently relate to sexual activity, biting, or spitting. At least 68 countries have laws that specifically criminalize HIV non‐disclosure, exposure, or transmission. Thirty‐three countries are known to have applied other criminal law provisions in similar cases.

For the fast-moving but relatively low-mortality Corona-virus, these lessons indicate that a marginalized social status can contribute to exacerbating transmission and constitute a barrier to adequate health care, potentially increasing mortality.

Secondly, criminalization and repressive public health measures and discriminatory barriers are also a complicating factor during emergencies caused by other factors. As seen in the context of Ebola, general violence as well as violence against health care workers undermines efforts to end outbreaks. Humanitarian emergencies confront public health systems with often overwhelming challenges. In the midst of this, criminalization of individuals who are infected or perceived as risky or dangerous further compromises the ability to address preexisting epidemics and hamper transmission, thus exacerbating the impact of the overall impact of the crisis.

Third, in situations when the disease itself is the emergency, criminalization and the attendant practice of quarantines directly hampers efforts. Historically, quarantines have been used for a wide range of diseases including venereal disease, tuberculosis, scarlet fever, leprosy and cholera. Quarantines are co-constructed through the longstanding tradition of framing infectious disease through criminalization, whereby stigma, medicalization and incarceration have worked together to produce colonial bodies construed as racial and sexual threats to national security (see here and here). Quarantine was a widely employed tool against Ebola in Sierra Leone and Liberia. As noted by commentators, according to the logic underlying quarantines ‘subjects marked as abnormal, diseased, criminal, or illicit should be isolated for their own betterment and for the collective good’. While resistance becomes a proof of deviance and of the necessity of segregation, in the case of Ebola, quarantines may compel fearful communities to hide suspected cases. In the contemporary context, with an international human rights framework on health suggesting that rights-based approaches to disease prevention and mitigation should be foregrounded, problematic tradeoffs between criminalization-oriented public health measures and fundamental rights and liberties are likely to proliferate, as illustrated by the US government’s budding ‘war on Corona’.

This blog has provided an initial map of how criminalization may shape the Corona response. In sum, when criminalization is pegged directly onto suffering human bodies, criminalization hinders global health interventions in three ways. Criminalization might be so repressive that it has severe health-related impacts on the populations concerned. Criminalization also undermines and exacerbates challenges already faced by the public health infrastructure during an emergency. Finally, the repercussions of criminalization are most impactful in situations when the disease itself is the humanitarian crisis and where criminalization directly hampers efforts to contain and mitigate epidemics.

US: Georgia Republican lawmaker co-sponsors bill that would revise HIV criminalisation law in the State

Republican lawmaker pushes to decriminalize HIV in Georgia

An influential Republican lawmaker in the Georgia House wants to modernize the state’s HIV laws, which activists have criticized as outdated and said stigmatize people living with HIV.

Current Georgia law makes it a crime for people living with HIV to have sex or donate blood without disclosing their status. It’s a felony punishable by up to 10 years in prison. State law also criminalizes spitting at or using bodily fluids on a law enforcement officer by a person living with HIV, an offense that can carry up to 20 years in prison.

But Rep. Sharon Cooper (photo), a Republican from Marietta, wants to change that. The chair of the Health & Human Services Committee in the Georgia House is a co-sponsor of a bill that would revise state law so it’s only illegal to intentionally transmit HIV during sex. The legislation would also downgrade the punishment from a felony to a misdemeanor, which is punishable by up to a year in prison. The revisions to the law would also decriminalize spitting at and using bodily fluids on a law enforcement officer by a person living with HIV.

“[Current Georgia HIV laws] make people so biased and afraid,” she told Project Q Atlanta. “And when you’re afraid of something and don’t understand it, it makes people act in very negative ways.”

“Misinformation is not only harmful to the person who has HIV, it’s harmful to the perceptions of everyone around and how they handle or treat the person. Having that correct information is extremely important,” she added.

Rep. Deborah Silcox, a Republican from Sandy Springs, introduced House Bill 719 on the final day of the 2019 legislative session. It was assigned to Cooper’s HHS committee.

Cooper said she will meet with Kathleen Toomey, commissioner of the Georgia Department of Public Health, to discuss the bill on Feb. 19. Cathalene Teahan, a registered nurse and a board member for the Georgia AIDS Coalition, is also expected at the meeting.

“Is there a more comprehensive bill? Should we have more than one bill? Where are our holes in the system? This is a big issue and I think we have a chance to really look at it,” Cooper said.

Georgia is one of some three-dozen states that criminalize a lack of HIV disclosure, whether or not the specific act actually exposed the sex partner to HIV. Activists and lawmakers have tried for years to modernize state law by decriminalizing non-disclosure of the disease to sex partners.

It’s way past time to update Georgia’s HIV laws, according to Jeff Graham, executive director of Georgia Equality.

“As they are currently written, there is no basis in science,” he said. ”If Georgia is going to get serious about making changes to end the epidemic in the next decade, we have to start by ending policies like this that are so harmful and have gone unchallenged for far too long.”

Rep. Mark Newton, a Republican from Augusta, is a co-sponsor of the legislation with Silcox and Cooper as a sponsor of the bill. The Democratic sponsors include Reps. Michele Henson of Stone Mountain, Karla Drenner of Avondale Estates and Sam Park of Lawrenceville. Drenner and Park are two of the five openly LGBTQ members of the legislature.

Cooper sponsored a measure that created a study committee to examine the state’s HIV criminalization laws in 2017.

The committee published its findings in December 2017, and some of those recommendations became part of HB 719. The committee found that “criminal exposure laws had no effect on detectable HIV prevention” and that these laws should be eliminated unless there was a clear intent to transmit the virus, according to the report.

HIV exposure arrests in Georgia

An Augusta man was arrested in January after allegedly having sex with a relative without informing him he had HIV. He was later released on bond.

A Rome, Ga., man was charged in August with exposing police officers to HIV after allegedly spitting on them, which HIV activists said highlights why the state needs to fix its laws. He is being held without bond in the Floyd County Jail.

An Athens man was arrested in July after allegedly having sex with a woman without informing her he had HIV. He was charged with reckless conduct by a person with HIV. He remains in Athens-Clarke County Jail without bond six months later, according to the Clarke County Sheriff’s Office.

A gay Atlanta man was arrested for HIV exposure in South Carolina in 2015. He claimed he disclosed his status before having sex with the alleged victim. The charges were later dropped.

US: Slow progress for Nevada Advisory Task Force on HIV Exposure Modernization

Task force on HIV decriminalization off to slow start

By Michael Lyle

Six months after Gov. Steve Sisolak authorized the creation of an Advisory Task Force on HIV Exposure Modernization to examine Nevada’s antiquated laws, the committee hasn’t been filled.

The law establishing the task force authorizes up to 15 appointments. The only three appointments made thus far were made in January. The task force has until Sept. 1 to present its finding to the Legislative Counsel Bureau along with any recommendations on potential legislation.

“As is the case with any other board or commission, the Governor can only make appointments when the application process is complete,” said Ryan McInerney, a spokesman for the governor. “There are multiple steps in the application process, and applicants will only be reviewed when all of their paperwork is completed and submitted.”

The governor’s office said it is working with the Department of Health and Human Services to encourage applicants to apply and has a goal of seven total members by mid-February.

“We are not concerned about meeting the deadline and will be prepared to immediately start work with the task force when appointments are announced,” added Shannon Litz, a spokeswoman with Nevada’s Department of Health and Human Services.

HIV criminalization laws developed in the late 1980s following the height of the HIV/AIDS epidemic.

Despite three decades of advancements in medicine that have decreased mortality rates and lowered transmission rates, the laws overwhelmingly remain in place across the United States.

Various movements have worked to change those existing laws.

California passed legislation in 2017 that reduces the penalty for those who expose others to HIV without their knowledge.

In a previous interview, state. Sen. David Parks, who sponsored Senate Bill 284, said he had tried for three sessions to bring forth legislation to address HIV criminalization.

The task force, once formed, is expected to review existing HIV exposure laws, research the impact of those laws, review corresponding court decisions and identify disparities of arrest based on indicators such as gender identity or expression, sexual orientation, race or sex.

In its 2017 report HIV Criminalization in the United States, the Center for HIV Law and Policy identified several existing Nevada laws that criminalizes HIV:

People living with HIV are prohibited from engaging in conduct known to transmit HIV, which is a Class B felony that can come with a two to 10 year prison sentence or up to a $10,000 fine.
People living with HIV can’t engage in sex work, which also comes with six months in prion and up to a $1,000 fine.
Health authorities have “broad powers to prevent transmission of communicable and infectious diseases, including HIV”

As the report points out, “conduct ‘likely to transmit’ HIV is not defined.”

Like most laws, Nevada’s statutes also don’t reflect the science advancements behind transmission.

For example, the Centers for Disease Control and Prevention along with other health organizations and scientific studies found that those on medications who achieve an undetectable viral load — when the copies of HIV per milliliter of blood are so low, it can’t be detected on a test — have no risk of transmitting the virus.

While speaking in support of SB 284, the Nevada Attorneys for Criminal Justice also noted other Nevada laws targeting people living with HIV.

“NACJ would particularly like to highlight one such law, NRS 212.189, which imposes a life sentence on a person with HIV in lawful custody who exposes another person to their bodily fluids,” the group wrote. “This is dramatically overbroad – a person with HIV who spits on a police officer as they are being arrested faces a life sentence, because HIV is sometimes present in saliva even though there is no actual risk of transmission.”

There hasn’t been any indication when the task force will begin meeting.

The three appointments in January include Stephan Page, Steve Amend and Ruben Murillo.

Digital technologies could threaten the safety of vulnerable groups, especially in juridictions that criminalise HIV non-disclosure

OPINION: The promises and perils of digital health

Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

by Mandeep Dhaliwal

The potential for technology to transform health services is tremendous, but advances in digital health can bring privacy and data security challenges.

Mandeep Dhaliwal is the director of the UN Development Programme’s HIV, Health and Development team.

From health apps that record blood sugar or air quality to drones that deliver vaccines, technology is increasingly shaping nearly every aspect of our lives. The potential for technology to transform health services is tremendous, especially for poor, hard-to-reach and marginalized communities. But advances in digital health can bring privacy and data security challenges that threaten human rights and exacerbate inequalities.

When developing countries have access to technology, it can be deployed to address longstanding challenges in access to health services. In Guinea-Bissau, health workers record data on malaria by hand and then send it by public transport for analysis, a process which can take up to three weeks. This makes it difficult to track where outbreaks are occurring or make informed, timely decisions about where to direct resources. UNDP, the Global Fund and the World Bank are working with the government to disseminate mobile tablets to health facilities across the country, allowing health professionals to monitor malaria data electronically. This streamlined system has contributed to a 16 percent decrease in the number of malaria-related deaths in the country since 2017.

However, technological advances aren’t necessarily reaching those with the greatest need. Well over half the world’s population still lack access to the internet, and those who lack access are overwhelmingly from marginalized groups such as women, elderly people, people with disabilities and those who live in poor, remote or rural areas.

Where digital technologies are reaching these communities, security and privacy issues can exacerbate stigma and discrimination. Between 2016 and 2017, there were over 1300 recorded incidents of protected health information data breaches across 27 countries. Leaking this type of information can threaten the safety and wellbeing of vulnerable groups, such as people living with HIV, especially in the 75 countries around the world that criminalize HIV non-disclosure.

Even if data is collected for altruistic purposes, it can be misused or shared with others who may use it for purposes other than what was intended. For example, data-sharing agreements can give governments access to personal information that could be used to target or monitor marginalized groups. This can lead to a breach of trust in the confidential doctor-patient relationship and discourage vulnerable populations from seeking care.

In some places, civil society is pushing back against these potential breaches of patient privacy. Kenyan civil society opposed the health authorities’ plan to use biometric data, such as fingerprints or eye scans, in a study on HIV. They argued that this data could be used by police to target groups – such as sex workers, men who have sex with men, transgender persons and people who inject drugs – for arrest and prosecution. Other countries are following suit – the Supreme Courts of India, Jamaica and Mauritius all affirmed the need for strong safeguards when collecting biometric data to ensure privacy rights are protected.

Countries must take action to enable vulnerable communities to benefit from advances in digital health while respecting their privacy. First, all people – not just a select, privileged few – should be able to enjoy the benefits of innovation and technology. The goal of digital health must be to drive universal health coverage (UHC) while reducing inequalities, rather than deepening them.

Second, strong rights-based legal and ethical frameworks for digital health are critical. Digital health tools must be accompanied by laws and policies that protect the privacy and dignity of patients, particularly those who risk further stigmatization and discrimination.

Finally, greater efforts are needed to ensure advances in technology are distributed equally, so that communities most in need can benefit. Partnerships across sectors can help accelerate the introduction of new technologies in poor, marginalized or remote communities.

Technology offers new opportunities to tackle some of the world’s most challenging diseases, drive UHC and ultimately, save lives. The digital health revolution has happened – it’s time to close the digital divide and for global and national governance, laws and safeguards to catch up.

HIV criminalisation laws need reforming for all those living with HIV, regardless of U=U

We Need to Talk About the Downside of U=U

I remember when I first heard the statement in 2017: the science-based evidence that stated people living with HIV taking antiretroviral medication who had attained an undetectable viral load no longer transmitted the virus. The slogan “U=U” (undetectable equals untransmittable) from that moment took on a life of its own—and I was all for it. I wrote about it, spoke about it, and even hit the streets to protest to ensure people were given access to this important breakthrough in HIV work. Now I feel differently. Three years later, the fight to reduce stigma using “U=U” as a framework has become nothing more than a gesture to prove that the bodies of people living with HIV are safe to have sex with, and I believe it has added another layer of oppression to Black people’s plight in the HIV epidemic.

Being an activist and advocate in this space for some time now, I’m always going to watch movements founded with white leadership with a critical eye—especially when HIV is an epidemic centered on Black queer folks, cisgender women, and transgender people. Movements seen through a white lens often have a blind eye to the most vulnerable and those who will be most affected. This movement is no different. The same people who are often left out of conversations around barriers to treatment are the same who are most harmed by a movement centering the optimal outcome—viral suppression as a marker of health above and beyond anything else.

It is true that being undetectable is what is recommended by every major medical and public health entity. However, undetectable doesn’t equal healthy, nor is it a status that, once attained, is always manageable—especially for Black queer and fem people. Furthermore, due to religious beliefs, inability to use treatment, barriers to care, or personal choice, we know that not everyone will be undetectable. That should be protected, and not othered. We should always be taking an approach to those living with HIV that centers the totality of their health, not their status.

I was first diagnosed with HIV in 2010. I didn’t start treatment until 2013. Much like seeing the phrase, “infectious disease,” made me cower, I would have been mortified seeing a movement like U=U. I was afraid to go to the doctor, afraid to take a pill for the rest of my life. There was no movement focused on my starting point. U=U doesn’t look like the goal to every person who is first diagnosed, and it puts the cart before the horse.

When I worked as a community health care worker, getting a client to an undetectable status was one of the goals, and not the main one. Shelter, finances, other health conditions, mental health, etc. were all a part of the “care” that we assessed with our clients. U=U is great as science and as a tool in the toolkit of care—not the entire toolbox. And its messaging is not reaching the community it claims to be saving or empowering; it is, rather, emboldening folks to weaponize status while creating a hierarchy within HIV.

I was recently made aware of an Instagram account dedicated to exposing individuals who were HIV positive but not undetectable, called “TheUndetectableList.” Although that account has since been taken down, it is movements like U=U that create an atmosphere for those who may not be undetectable—based on several factors and barriers—to be placed in dangerous positions.

Just like U=U, D can equal D, meaning Disclosure can equal Death. Much like the “It Gets Better” campaign around bullying, there was no system in place for those who, just by virtue of getting older, being queer or trans, things didn’t get better for. It was treating a symptom of the problem rather than the root cause. U=U is the “optimal” goal for medical professionals, while social justice activists and advocates understand that the picture of health for us has to be painted with much broader strokes to encompass all people.

Last year, Tamás Bereczky, with the European Patients Academy (EUPATI), penned an article for The BMJ about what he also perceives as the harm caused by this movement.

“Activists in developed countries have said that advocates in regions lacking access to drugs and testing should use the U=U message to call more strongly for improvements,” he wrote. “But this ignores the political, social, and cultural contexts in which people with HIV live.”

Bereczky also goes on to address the kind of bullying that other activists are experiencing globally if they raise questions about U=U as a framework. “The U=U message has spread readily among communities, but political barriers often make it impossible to be more vocal without advocates risking their liberty and physical integrity. Ideological dogma also acts against people with HIV as well as men who have sex with men, injecting drug users, sex workers, and prisoners—that is, the key affected populations.”

The U=U movement misses the mark on the population it claims to be aiming to prioritize at its center. HIV-positive people cannot be responsible for the burden of the work in ending the epidemic. We are often placed in positions where we carry the responsibility and accountability for the sexual health of others. Our “undetectable” status also shouldn’t be used as a badge of honor to tell people it is “safe to sleep with us” or interact with us without fear of contracting the virus.

Any time I see someone post their negative HIV test results, I push back. The U=U movement has in a sense emboldened the idea that negative status (or as close to it as possible) is perfection. It has created a new kind of class system within the HIV community, and a hierarchy of the bodies that society now deems as acceptable and safe.

Is U=U scientific fact? Yes. Is it important to educate people that when you get to an undetectable viral load, you no longer transmit the virus? Yes. Should a movement be centered on an outcome we scientifically know not everyone can achieve or maintain because of social, economic, and environmental determinants of health? Absolutely not. U=U is just like condoms, harm reduction, pre-exposure prophylaxis (PrEP), TaSP (Treatment as Prevention), and anything in the toolkit. It is one of the many tools that should be used, but it should not be sold as the end-all, be-all. U=U is unfortunately sold as the only marker for good health, which in and of itself is dangerous.

Another major factor is how the U=U movement is creating policy change in HIV criminalization that could be potentially harmful to the overall cause. U=U has been used to create reforms in states like North Carolina to reduce the chance of prosecution for people who can prove they have been undetectable for six months or longer, who do not have to disclose their status nor use a condom during sex. This approach centers our safety from prosecution based on our medical status and still puts many at risk, including those who are undetectable who would be required to prove that they were virally suppressed if someone accused them of nondisclosure or not using a condom—a person is only as undetectable as their last labs. Also, this approach puts no responsibility on lawmakers or health care institutions in states like North Carolina to ensure people with HIV can get into care and remain on treatment as easily as possible—the state still has not expanded Medicaid under the Affordable Care Act, which may exacerbate race and class health disparities in who can achieve viral suppression in the first place.

U=U as science should also be used to fight for Medicaid expansion or Medicare for All and to fight against attempts to not cover people with pre-existing conditions and the barriers to care that exist for so many. It should not be a movement as much as it should be a tool in the various ways we fight against HIV stigma, and for better health care. It also shouldn’t be used to create new laws that only protect those privileged enough to get an undetectable status.

Instead, U=U has become a slogan, a T-shirt, and a notion to people who are HIV negative that our bodies are safe to sleep with. It is classist and elitist. The ability to tell folks that we are undetectable should be a personal one. We can’t in one breath critique HIV-negative folks who post their negative results on social media and reinforce stigma that harms HIV-positive people, but then turn around and loudly boast about our own undetectable status. That too harms those who are detectable and many who are undetectable but discrete.

We should all be empowered by U=U for the science, and for the fact that HIV treatment over the past 25 years has advanced us to a place where people living with HIV no longer transmit the virus, and it can help us sustain a high quality of life. However, we need to be clear that U=U is not a viable option for everyone, and our fight must begin at the barriers as to why more can’t achieve it. Our goal is not a happy ending only some of us have been able to achieve. It should be a tool of encouragement for those afraid to be tested or those lost to care, not another campaign that inadvertently causes more stigma and separation.

Top-down movements have never worked—and this movement is no different. Helping those who start in the best position to get to undetectable or leading with that lens will only harm those most marginalized, who tend to be left out with the promise of, “We’ll come back for you later.” The same way Black Lives Matter can’t work unless All Black Lives Matter is the same way a U=U approach can’t work if all lives can’t get to the “U” of being undetectable—especially when overall health should be our main goal, not status-centered health. Movement work should center those most disenfranchised, not embolden others in a place of privilege to shame those who can’t attain that same status—pun intended.

U may equal U, but it certainly does not equal me and a lot of other people who may struggle to get there. My status is a small part of the total person that I am. As I’ve stated before, “My existence is an HIV campaign,” not my status. We must work to educate the world on U=U as science.