When Justice Isn't Blind

Feel like “the man” is out to get you for being poz? You’re not alone, especially if you’re transgender or third sex.

A recent survey revealed that a majority of transgender people are so fearful of criminalization laws that it makes them avoid HIV testing, treatment, and sometimes even disclosure of their positive status to sex partners.

The National HIV Criminalization Survey, conducted by the Sero Project, found 58 percent of HIV-positive transgender and third-sex people say it is reasonable to avoid testing for fear of prosecution, compared with 49 percent of cisgender (nontrans) men and 47 percent of cisgender women. The survey also showed that 61 percent of transgender people living with HIV said it was acceptable to avoid disclosure of their status to sex partners, and 48 percent found it reasonable to avoid treatment out of fear of legal penalties.

 “These findings don’t surprise us,” says Cecilia Chung, senior strategist at the Oakland, Calif.–based Transgender Law Center, in a prepared statement. “The data speaks to the long-standing history of stigmatization and discrimination of trans people, especially trans people of color, by the criminal justice system, because of either their race or their gender identity.”

Current law in many states allows for HIV-positive people to be tried as criminals if they keep their status from their sex partners. Because of these laws, many people are hesitant to get tested.

Trans respondents were the least likely to support criminal penalties for nondisclosure, the survey found. And when deciding if disclosure is warranted, they were most likely to say, “It depends on the circumstances.”

In addition, 25 percent of HIV-positive respondents said they knew at least one person who avoided testing for fear of being prosecuted, and 57 percent of HIV-positive transgender and third-sex respondents feared false accusations. Conversely, 74 percent of cisgender women said they “never” worried about that.

Pessimism extends even to the judicial system, with fewer than 15 percent of the trans respondents believing that a person with HIV could get a fair trial in a U.S. court. One of the anonymous HIV-positive trans respondents called it “doubtful that I would be given a fair hearing in any court of law.” Another respondent added, “There is so much stigma and miseducation that I feel the bad publicity would unfairly influence the process.”

Principal investigator Laurel Sprague says the study shows that when transgender people interact with law enforcement, they expect prosecution rather than protection. The open-ended section of the survey found a number of trans respondents indicating that bias against them, bias against racial minorities, and bias against people living with HIV “all intersected to create a system that would not give them a fair chance at justice,” Sprague says.

She notes that the proportion of transgender and third-sex respondents in this study was small—only about 2 percent of the 3,034 surveys—but still very revealing.

“Even with a small sample size, the results from transgender and third-sex respondents are striking in the way they consistently indicate a sense of greater vulnerability to the legal system and less faith in the legal system to treat them fairly,” Sprague says.

While many HIV criminalization laws were passed (often decades ago) ostensibly to protect people, most experts today agree they are based on inaccurate or outdated science. For example, in some areas an HIV-positive person could be prosecuted for knowingly infecting a person even if they merely kiss, even though research shows contact with saliva isn’t enough to transmit HIV. The laws also fail to make exceptions for HIV-positive people who use condoms or other safe-sex practices or have undetectable viral loads.

The results of the survey should raise alarms for policy makers and public health workers, as the findings show that these laws increase barriers to HIV testing and treatment, not to mention the feelings of vulnerability that transgender people live with.

For Bamby Salcedo, coordinator of the HIV Prevention Services Project with Children’s Hospital Los Angeles, the results weren’t surprising.

“HIV is one of the things that affects the trans community the most, but it’s really not understood in the judicial system,” she says. Salcedo is herself both trans and HIV-positive, and is the subject of Dante Alencastre’s 2013 documentary Transvisible: The Bamby Salcedo Story.

Salcedo says that because HIV is such a widespread problem among transgender people and because so many trans people also work in the sex industry, there is a combination of stigmas that prevents people from getting tested and disclosing their status. For sex workers in particular, disclosure could mean a loss of income. They also face assumptions and discrimination from law enforcement.

“I know a couple of people who have had issues with law enforcement,” Salcedo says. “Because HIV and sex work are very prevalent in the trans community, law enforcement officers automatically assume that a trans person may be infected, and so one of the first questions that I know they ask trans women is if they are HIV-positive.”

The survey also shows the need for access to legal education and services as well as more support for people living with HIV, regardless of their gender and orientation.

Salcedo says there are a couple more things that need to be done: train service providers specifically about HIV and the trans population and allocate funding to empower trans people to be open about themselves and obtain services. Policy makers and service providers, she says, really need to be aware of and understand the issues of trans people related to HIV and how serious the problem is in this population.

Others point out inequities as well. “We live in a society that is profoundly unjust, with mass incarceration and widespread economic injustice,” says Sean Strub, executive director of the Sero Project, author of Body Counts and founder of Poz magazine. “There are new ways society collectively, through the state, is dividing us, like criminalizing health conditions and finding ways to manipulate and exploit parts of the population.”

The findings in the study, according to Strub, show the “tremendous distrust of the criminal justice system” and “should be a wake-up call” because they indicate something is wrong.

Strub said it’s obvious that transgender people and their concerns are getting more attention and are benefiting from broader LGBT advocacy, but a long road remains ahead.

“Campaigning for justice and equality isn’t a matter of clicking off one box after another; it is a never-ending struggle, requiring constant vigilance as well as an evolving understanding of how we discriminate and oppress parts of our society,” he says. “We need to see a fight for justice as not unique to one part of the population but something that must become part of the lives of everyone.”