Excerpts from TOI report
The Victorian-era morality, prohibitions, unsafe sex and living in denial have led to the spread of sexually transmitted diseases like AIDS and it cannot be blamed on homosexual relationships, the Supreme Court on Tuesday said while observing the sexual intercourse itself should not be seen as a crime. The apex court termed the prohibitions on acts like prostitution and homosexual relationships as one of the causes for the spread of STDs and said, "If you licence prostitution, you control it. If you shove it under the carpet, owing to some Victorian-era morality, it will only lead to health concerns".
A five-judge Constitution bench was not in agreement with the submissions of the lawyers favoring retention of section 377 in the IPC that the homosexual relationships have led to spread of AIDS.
"The cause of sexually transmitted diseases is not sexual intercourse. But unprotected sexual intercourse. A village woman may get the disease from a husband who is a migrant worker," the bench said. "This way you would want to make sexual intercourse itself a crime."
"We would not wait for the majoritarian government to enact, amend or not to enact any law to deal with violations of fundamental rights," the bench said and made clear that it may strike down a law if fundamental rights are infringed.
“Sexual orientation is of abstract nature and such an abstract concept cannot be read into Article 15 and moreover, the term sexual orientation has not been defined either in the Constitution or in any other statute”.
The bench said its NALSA verdict recognized transgender as a gender besides male and female.
The European Human Rights court has held that "the right to marry is not a conventional right".
The court reserved its verdict after lawyers concluded their arguments in the case.
The National Legal Services Authority (NALSA) v. Union of India is a landmark decision by the Supreme Court of India, which declared transgender people to be a 'third gender', affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender. The court also held that because transgender people were treated as socially and economically backward classes, they will be granted reservations in admissions to educational institutions and jobs.
Sexual orientation is generally thought of as having three components: identity, behavior, and desire. "Gay" is generally used to describe how people identify themselves, while "men who have sex with men" (MSM) describes a behavior. MSM may identify themselves as gay, bisexual, queer, same-gender loving, or heterosexual. Some who are just beginning to come out may experience a desire to be intimate with other men, but may not yet have been sexually active with men or even identify as being gay. Some MSM do not even regard sex with other men as sexual activity, a term they reserve for sexual relations with women.
Gay men are at higher risk of human immunodeficiency virus (HIV) and other sexually transmitted infections. According to the CDC, 66% of new cases of HIV in the US in 2011 were in men who have sex with men (MSM), including MSM who use injectable drugs. They are more likely to attempt suicide and be homeless. Use of tobacco, alcohol, and other drugs are higher in them. Isolation and lack of supportive services are further barriers to health, especially in older gay men.
For effective HIV prevention, the CDC recommends that
· Sexually active MSM (patient or his sex partner[s] have more than one sex partner since the patient's most recent HIV test) should be tested at least annually for HIV and other STIs.
· Sexually active MSM should practice safe sex by choosing less risky behaviors, using condoms consistently and correctly if they have vaginal or anal sex, reducing the number of sex partners, and, if HIV-positive, letting potential sex partners know their status.
· For some MSM at high risk, taking post-exposure prophylaxis (PEP) can reduce risk.
· For sexually active MSM at substantial risk, pre-exposure prophylaxis (PrEP) is recommended as one option.
· Health care providers and public health officials should ensure that:
o Sexually active, HIV-negative MSM are tested for HIV at least annually (more frequent testing may be recommended e.g., every 3 to 6 months)
o HIV-negative MSM who engage in unprotected sex receive risk-reduction interventions
o HIV-positive MSM receive HIV care, treatment, and prevention services
· Universal screening: HIV screening has long been a core prevention strategy.
Dr KK Aggarwal
Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Immediate Past National President IMA