Sexual health, human rights and the law

Posted by Maria Codina on November 1, 2017 at 12:21 pm



Sexual health today is widely understood as a state of physical, emotional, mental and social well- being in relation to sexuality. It encompasses not only certain aspects of reproductive health – such as being able to control one’s fertility through access to contraception and abortion, and being free from sexually transmitted infections (STIs), sexual dysfunction and sequelae related to sexual violence or female genital mutilation – but also, the possibility of having pleasurable and safe sexual experiences, free of coercion, discrimination and violence. Indeed, it has become clear that human sexuality includes many different forms of behaviour and expression, and that the recognition of the diversity of sexual behaviour and expression contributes to people’s overall sense of well-being and health.

Developments over the past three decades, particularly in the wake of the HIV pandemic, have brought an understanding that discrimination and inequality also play a key role in whether or not people can attain and maintain sexual health. For example, those who are perceived as having socially unacceptable sexual practices or characteristics, such as being HIV-positive, being an unmarried sexually active adolescent, a sex worker,
a migrant, a transgender or intersex person, or engaging in same-sex sexual behaviour, suffer both marginalization and stigma, which take a huge toll on people’s health. Those who are deprived of, or unable to access, information and services related to sexuality and sexual health, are also vulnerable to sexual ill health. Indeed, the ability of individuals to achieve sexual health and well-being depends on their access to comprehensive information about sexuality, knowledge about the risks they face, vulnerability to the adverse consequences of sexual activity, access to good quality sexual health care, and access to an environment that affirms and promotes sexual health. As well as being detrimental to their sexual health, discrimination and inequalities may also constitute a violation of human rights.

The achievement of the highest attainable standard of sexual health is therefore closely linked to the extent to which people’s human rights – such as the rights to non-discrimination, to privacy and confidentiality, to be free from violence and coercion, as well as the rights to education, information and access to health services – are respected, protected and fulfilled. In the past two decades, an important body of human rights standards pertaining to sexuality and sexual health has been developed. This includes: interpretations by United Nations human rights treaty monitoring bodies of the content of human rights provisions; international, regional and national court decisions; international consensus documents; and reports by the United Nations Special Rapporteur on the Right to the Highest Attainable Standard of Health, among others. These standards are made operational through the enactment and implementation of laws, regulations and policies at the national level.

Laws matter because they set the rules of society and can provide the framework for the implementation of sexual-health-related policies, programmes and services. They can provide human rights guarantees, but they may also create limitations. Either way, laws and regulations have an impact on the enjoyment of the highest attainable standard of sexual health. Harmonizing laws with human rights standards can foster the promotion of sexual health across and within various populations, while the negative impact of laws that are in contradiction with human rights standards has been increasingly documented. For example, laws that foster the dissemination of objective, comprehensive sexuality information, if implemented for all, contribute to people’s knowledge of what protects or damages their sexual health, including where and how to seek further information, counselling and treatment if needed. On the other hand, laws that restrict women’s and adolescents’ access to health services – for example, by requiring third-party authorization for services – and laws that criminalize certain consensual sexual behaviour can exclude or deter people from seeking and receiving the information and services they require and to which they have a right.

This report demonstrates the relationship between sexual health, human rights and the law. Drawing from a review of public health evidence and extensive research into human rights law at international, regional and national levels, the report shows how states in different parts of the world can and do support sexual health through legal and other mechanisms that are consistent with human rights standards and their own human rights obligations. This executive summary presents a few examples selected from the numerous examples provided in the full report.

Removal of legal and regulatory barriers to services

Ill health related to sexuality is vast and represents a significant disease burden throughout the world, so that access to appropriate health services for the wide range of sexual health problems is essential. At the same time, the right to the highest attainable standard of health has been defined and elaborated as encompassing a variety of facilities, goods and services that must be available, accessible, acceptable and of good quality. These are dimensions that have yet to be fulfilled in many places, and frequently this is due to an inadequate legal framework, including direct legal barriers. Among a number of examples of legal barriers to access is the prohibition or restriction on the availability of emergency contraception or on the delivery of services by health-care personnel other than doctors. In a number of countries this has been challenged and modified to make essential medicines and services available.

How services are provided

Because issues related to sexuality and sexual practices concern people’s private lives and may
be considered sensitive in many contexts, the guarantees of privacy, confidentiality and informed decision-making, for example, in the delivery of services, are particularly important. Where these guarantees are lacking, people may simply not use the services they need, with negative consequences for their health. Adolescents, for example, often avoid seeking services when confidentiality is not guaranteed and where parental authorization is required. Recognizing the importance of this dimension, and reflecting human rights standards, some countries have enshrined the guarantees of privacy, confidentiality and informed decision- making in law.

Access to information and education

Access to information and education relating to sexuality and sexual health is essential to enable people to protect their health and make informed decisions about their sexual and reproductive lives. Evidence shows that access to such information – as well as to comprehensive sexuality education that provides not only information but also builds personal communication skills – is associated with positive health outcomes. Laws and regulations that exclude specific topics from sexuality information and education, or exclude certain people from gaining access to sexuality education, have detrimental consequences for sexual health.

International human rights bodies have emphasized the importance of states providing sexuality information and comprehensive sexuality education for both adults and adolescents, and have specifically stipulated that states should refrain from censoring scientifically accurate sexual health information, or withholding or intentionally misrepresenting health-related information, including sexual education and information. Some states have promulgated laws that make specific provision for sexuality information and education through the right to education; in others, the restriction on information regarding abortion services, for example, has been successfully challenged at the regional level.

The use of criminal law

All legal systems use criminal law to deter, prosecute and punish harmful behaviour, and to protect individuals from harm. However, criminal law is also applied in many countries to prohibit access to and provision of certain sexual and reproductive health information and services, to punish HIV transmission and a wide range of consensual sexual conduct occurring between competent persons, including sexual relations outside marriage, same-sex sexual behaviour and consensual sex work. The criminalization of these behaviours and actions has many negative consequences for health, including sexual health. Persons whose consensual sexual behaviour is deemed a criminal offence may try to hide it from health workers and others, for fear of being stigmatized, arrested and prosecuted. This may deter people from using health services, resulting in serious health problems such as untreated STIs and unsafe abortions, for fear of negative reactions to their behaviour or health status. In many circumstances, those who do access health services report discrimination and ill treatment by health-care providers.

International human rights bodies have increasingly called for decriminalization of access to and provision of certain sexual and reproductive health information and services, and for removal of punishments for HIV transmission and a wide range of consensual sexual conduct occurring between competent persons. National courts in different parts of the world have played an important role in striking down discriminatory criminal laws, including recognizing the potentially negative health effects.

Gender identity and expression

Being able to determine and express one’s gender identity without stigma, discrimination, exclusion and violence is an important dimension of health and well-being and the enjoyment of human rights. The possibility for people to live in accordance with their self-identified gender, in law and in fact, has a beneficial effect on their overall well-being, including being able to access health, social and other services. The respect, protection and fulfilment of human rights require that no one should be forced to undergo medical procedures, including gender-affirming surgery, sterilization or hormone therapy, or be forced to divorce, as a requirement for legal recognition of their gender identity and expression. A number of national laws that previously required such procedures for a change of identity have been challenged and modified, or new laws have been promulgated, to be in line with human rights standards.

Sexual and sexuality-related violence

All forms of sexual and sexuality-related violence have multiple negative effects on health and well-being. People living in violent relationships, for example, may be unable to make sexual and reproductive choices, either through direct exposure to forced or coerced sex or because they are unable to control or negotiate regular use of contraception and condoms. This puts them at risk of unwanted pregnancy (for women), and STIs including HIV. Intimate partner violence in pregnancy increases the likelihood of abortion, miscarriage, stillbirth, preterm delivery and low birth weight.

An example of the way in which the law has an impact on sexual health is the legal understanding of rape, which has historically been understood as sexual intercourse by a man with a woman who is not his wife, through force and against her will, involving vaginal penetration by a penis. Under such a definition, women who have been raped by their husbands, women who have been raped anally, men and transgender individuals cannot claim, legitimately, to have been raped. International criminal law has evolved to define rape in much broader terms, covering different invasive acts perpetrated by and against people of any sex or gender, and recognizing that rape within marriage is a crime in all circumstances. Many national laws have been amended over the past decade in line with these human rights standards. This accommodates access to needed health services for all (unmarried girls and women, men, boys and transgender persons) as well as recourse to due process and redress, which plays a role in health.

Conclusion

States have obligations to bring their laws and regulations that affect sexual health into alignment with human rights laws and standards. Removing barriers in access to sexual health information and services, and putting in place laws and regulations that aim to support and promote sexual health, are actions that are also in line with the World Health Organization’s global reproductive health strategy adopted by the World Health Assembly in 2004.