Prepared by the U.S. Department of Justice in September, 2005, and updated in February, 2006, this guide provides a basic overview of federal laws that offer antidiscrimination protections to people with disabilities, including those with HIV/AIDS. Links and contact information for the federal agencies and organizations charged with enforcement of these laws, and statutory citations, is included. Laws covered include the Americans with Disabilities Act (ADA), Telecommunications Act, Fair Housing Act, Air Carrier Access Act, Voting Accessibility for the Elderly and Handicapped Act, National Voter Registration Act, Civil Rights of Institutionalized Persons Act (CRIPA), Individuals with Disabilities Education Act (IDEA), Rehabilitation Act of 1973 (Rehab Act), and the Architectural Barriers Act.
This policy vision paper outlines the key priorities for women with HIV as identified by a group of young HIV positive women from across Eastern and Southern Africa who met in Durban in April 2004. The meeting was a dialogue organized by the International Community of Women Living with HIV/AIDS (ICW) in partnership with Youth Against AIDS Network (YAAN) and Gender AIDS Forum (GAF). Three primary priorities are identified: 1) Access to sexual and reproductive rights, 2) Access to screening, treatment, and prevention, and 3) meaningful participation and action of women with HIV in decision-making at the community, national, and regional levels. Within these three priorities, several specific issues and examples are identified, citing experiences of real women with HIV. The vision paper then provides a call to action, identifying specific steps that must be taken to remedy these shortcomings. The paper provides a useful starting-point for HIV-positive women and advocates seeking to identify, address, and mobilize around HIV issues specific to women, or anyone seeking to understand the unique obstacles facing HIV-positive women. While many of the issues are identified by women around the world, the themes of disenfranchisement, marginalization, and stigma are universal. Produced by the International Community of Women Living with HIV/AIDS.
Part 35 of Title 28 of the Code of Federal Regulations was issued by the Department of Justice pursuant to the Americans with Disabilities Act (ADA) in order to implement the requirements contained within Title II of the Act, which applies to state and local governments. To check for updates to this part, consult the Government Printing Office web site at http://www.gpoaccess.gov/cfr/index.html.
To help state and local governments comply with Title II of the Americans with Disabilities Act (ADA), the U.S. Department of Justice issued this guidance document, which explains each section of Title II and offers practical illustrations to demonstrate how the law applies in various situations.
The Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), addresses women’s rights within the political, social, economic, cultural, and family life. It calls for state parties to overcome barriers of discrimination against women in areas of legal rights, education, employment, health care, politics, and finance, and sets benchmarks. Particularly relevant to HIV/AIDS issues are: the definition of discrimination against women (Article 1); a mandate that states condemn discrimination in all its forms and ensure a legal framework that provides protection and embodies the principle of equality (Article 2); mandate of the end of discrimination in employment, including the right to work, employment opportunities, equal renumeration, free choice of profession and employment, social security, and protection of health, including maternal health (Article 11); requirement of steps to eliminate discrimination in health care, including family planning access (Article 12); a focus on the unique problems that rural woman face in access to health care and adequate living conditions (Article 14); requirment of steps to ensure equality in marriage and family relations, including the right to freely determine the number and spacing of children (Article 16).
The Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) is an international treaty designed to protect individuals from discrimination based on race that is both intentional or the result of neutral policies. Particularly relevant to HIV/AIDS issues are: the requirement that state parties take concrete measures in social, economic, cultural, and other fields to ensure the adequate development and protection of certain racial groups or individuals belonging to them for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms (Article 2); and the requirement that state parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone to equality before the law in the enjoyment of rights including the right to work and to free choice of employment, the right to housing, the right to public health, medical care, social security, and social services, and the right to education and training (Article 5).
As a treaty, CERD is binding on all parties that ratify it; those who sign but do not ratify it are obligated not to act contrary to the purpose of the convention under Article 18 of the Vienna Convention. State parties must submit periodic reports to the Committee on the Elimination of Racial Discrimination detailing how they are giving effect to CERD. Moreover, under Articles 11-13, if a state party is not giving effect to the provisions of CERD, another state party may bring this to the attention of the Committee, which will collect information from the relevant state parties and, if the dispute cannot be reconciled, will form an ad hoc commission to investigate and issue recommendations. Under Article 14, a state party has the option of allowing the Committee to receive and consider complaints from individuals claiming that the state party has violated their rights under CERD, and the Committee will issue recommendations to the state party accordingly.
The United States has ratified CERD, but has not exercised the option set forth in Article 14.
The Convention on the Rights of the Child (“CRC”) is an international treaty that discusses many of the rights children, some of which are in addition to those also enjoyed by adults. Particularly relevant to HIV/AIDS issues are: the right to life and corresponding obligation of the state to ensure to the maximum extent possible the survival and development of the child (Article 6); the right to seek, receive, and impart information (Articles 13, 17); the right to education (Article 28); the right to the highest attainable standard of health, including preventative health care, guidance for parents, and family planning education and services (Article 24); rights of disabled children to special care and to conditions that ensure dignity and facilitate active participation in the community (Article 23);the right to a standard of living adequate for physical, mental, spiritual, moral, and social development (Article 27); and the right to be actors in their own development and to express their opinions in all matters affecting the child (Article 12). States are also obligated to respect and ensure the rights in the CRC without discrimination of any kind, irrespective of the child’s or his or her parent’s disability (Article 2). The best interests of the child must be a primary consideration in all actions concerning children (Article 3). Moreover, states are obligated to ensure that the child as such protection and care as is necessary for his or her well-being, and to ensure that institutions, services, and facilities responsible for the care or protection of the child conform with the standards established by competent authorities, particularly in the area of safety and health (Article 3).
As a treaty, the CRC is binding on all parties that ratify it; those who sign but do not ratify it are obligated not to act contrary to the purpose of the convention under Article 18 of the Vienna Convention. State parties must submit periodic reports to the Committee on the Rights of the Child detailing their progress on upholding the treaty’s provisions.
General Comment No. 3 of the Committee on the Rights of the Child, available separately in the Resource Bank, analyzes the obligations of the CRC in the context of HIV/AIDS.
The United States has signed, but not ratified, the CRC.
A revised and consolidated version of the original guidelines published in 1996, the purpose of the Guidelines is “to assist States in creating a positive, rights-based response to HIV that is effective in reducing the transmission and impact of HIV and AIDS and is consistent with human rights and fundamental freedoms.” The Guidelines are a joint project of the United Nations Office of the High Commissioner for Human Rights and UNAIDS. The consolidated guidelines include the revised Guideline 6, which reflects the human rights dimensions of access to HIV prevention, treatment, care, and support. The document consists of three parts: 1) twelve guidelines for state action; 2) recommendations for dissemination and implementation of the Guidelines; and 3) a description of the human rights principles underlying a positive response to HIV. The primary users are intended to be states, but it is also meant to inform intergovernmental organizations, non-governmental organizations, networks of people living with HIV, community-based organizations, networks on ethics, law, human rights, and HIV, and AIDS service organizations. It is also useful for any person looking for interested in a rights-based approach to HIV/AIDS and specific steps needed to implement such an approach.
The International Covenant on Economic, Social and Cultural Rights (the “ICESCR”) represents one-third of what is informally referred to as the “International Bill of Rights.” The other two thirds consist of the International Covenant on Civil and Political Rights (“ICCPR”), and the Universal Declaration of Human Rights. The ICESCR outlines universal economic, social and cultural rights; particularly relevant to HIV/AIDS issues are: the right to the highest attainable standard of health (Article 12); the right to education (Article 13); the right to work (Article 7); the right to enjoy the benefits of scientific progress and its applications (Article 15); the right to social security (Article 9); the right to an adequate standard of living, including adequate food, clothing, and housing (Article 11); and the right to participate in cultural life (Article 15).
As a convention, the ICESCR is binding on all parties that ratify it; those who sign but do not ratify it are obligated not to act contrary to the purpose of the convention under Article 18 of the Vienna Convention. Like the ICCPR, parties to the ICESCR are obligated to make periodic reports on their compliance with the convention to the Committee on Economic, Social and Cultural Rights. The Committee also prepares “General Comments” interpreting the ICESCR and exchanges general views on the rights of the ICESCR.
However, unlike the ICCPR, the ICESCR has no optional protocol that would allow victims of violations of ICESCR to present complaints before the Committee on ESCR against a state that has ratified the convention and violates its obligations; however, in April 2008, a UN working group approved a draft of such an optional protocol, and sent it to the UN Human Rights.
The United States has signed, but not ratified, the ICESCR.
This recent convention reaffirms and seeks to enforce established rights for those with disabilities. Articles of the convention that are particularly relevant to HIV/AIDS issues cover: recognition of equality and prohibition of discrimination (Article 5); the right to liberty and security of person (Article 14); the right to liberty of movement and to acquire and change nationality with discrimination on the basis of disability (Article 18); the right to privacy of personal, health, and rehabilitation information (Article 22); the right to respect for home and family and prohibition on discrimination against persons with disabilities in all matters relating to marriage, family, parenthood, and relationships (Article 23); the right to education (Article 24); the right to the enjoyment of the highest attainable standard of health (Article 25); states’ obligations to take measures to enable persons with disabilities to attain and maintain maximum independence (Article 26); the right to work (Article 27); the right to an adequate standard of living and social protection (Article 28); the states’ obligation to comply with legally established safeguards to ensure confidentiality and privacy in the process of collecting and maintaining data on persons with disabilities, and to comply with internationally accepted norms to protect human rights and fundamental freedoms and ethical principles in the collection and use of statistics (Article 31).
The Convention also establishes a Committee on the Rights of Persons with Disabilities and requires parties to the Convention to submit periodic reports to the Committee on measures it has taken to implement the Convention.
The Optional Protocol to the Convention allows individuals who are victims of violations of Convention to present complaints before the Committee against a state that has ratified the convention and violates its obligations.
As of August, 2008 the United States had not yet signed or ratified the Convention or the optional protocol.
General Comment No. 3 was issued by the United Nations Committee on the Rights of the Child to promote the realization of the human rights of children in the context of HIV/AIDS as guaranteed under the Convention on the Rights of the Child (“CRC”). General Comment No. 3 identifies and elaborates on several rights of children and corresponding obligations of state parties with regard to HIV/AIDS issues such as discrimination, HIV-prevention information, health services, counseling and testing, mother-to-child transmission, and children affected and orphaned by HIV/AIDS. For example, General Comment No. 3 explains that under Articles 24, 13, and 17 of the CRC, children should have the right to access adequate information related to HIV/AIDS prevention and care through both formal and informal channels. It also states that “accessibility of voluntary, confidential HIV-counseling and testing services, with due attention to the evolving capacities of the child, is fundamental to the rights and health of children.”
General Comment No. 3 is especially useful for those seeking to understand how HIV/AIDS impacts children and families and what states’ obligations are to respond; it is best read alongside the CRC, available separately in the Resource Bank.
