Legal support and strategic litigation

Legal support services provide legal information, advice, referrals and representation for rights violations to protect and promote health.

Legal support services

Legal support services are a critical enabler for access to health and human rights. They include:
• Providing legal advice and representation;
• Strengthening alternative and community-based dispute resolution mechanisms;
• Engaging religious or traditional leaders and traditional legal systems;
• Strategic litigation;
• Sensitization and training of law enforcement officials and health workers in relevant areas of law; and
• Strengthening services for legal information and referrals.

Case Study: Strengthening legal literacy and legal support services in Asia and the Pacific

In Cambodia, a community legal service provides free legal advice to sex workers in Phnom Penh and a legal advice hotline provides advice on violence protection and other legal issues using interactive voice software. Community networks have received training on documentation of human rights and legal rights violations. A toolkit on scaling up legal services for people living with HIV and key populations was published and disseminated.

NGOs in Indonesia have made progress in piloting of legal aid services for sex workers through OPSI (Indonesian Sex Workers Network) and LBH Masyarakat (Community Legal Aid Institute). Legal aid services for people who use drugs were expanded by the use of paralegals through PKNI (Indonesian Network of People Who Use Drugs) and LBH Masyarakat. Funding for the Stigma Index and community led documentation of quality of and access to services for key populations (including stigma and discrimination) was provided by the Global Fund.

In Bangladesh, a local CSO has collaborated with the National Human Rights Commission (JAMAKON) and the National Legal Aid Services Organization to provide legal aid and support to more than 2 000 community members through its legal hotline (Ain-Alap). Through this collaboration: 186 complaints have been documented; a district level Lawyers Group Committee has been formed, consisting of 190 lawyers who provide pro bono services to the community; and a watch dog committee has been formed at the divisional level, consisting of 42 front-line community members who document human rights violations.

Learn more: UNDP (2016) Review of Country Progress in Addressing Legal and Policy Barriers to Universal Access to HIV services in Asia and the Pacific

COVID-19 and Legal Support Services

Legal support services should be capacitated to include COVID-19-related issues. But they should also receive continued and even increased support to focus on the continuing needs and rights of HIV, TB and malaria key populations and of recently released prisoners, as well as problems such as interpersonal violence in situations of quarantine – all of which might be exacerbated in the COVID-19 crisis. See the Global Fund (2020) COVID-19 Guidance Note: Human Rights in the Time of COVID-19 for additional guidance.

Strategic litigation

Strategic litigation sets important judicial precedents to create an enabling legal and policy environment that protect health and human rights

Strategic litigation is an important strategy to strengthen an enabling legal environment for health, including HIV, TB and malaria. It can help to:

  • Create greater public awareness of and encourage debate around stigma, discrimination and human rights violations towards vulnerable and key populations in the context of health;
  • Enforce existing protections in law for the health and human rights of vulnerable and key populations;
  • Clarify the meaning of existing laws in the context of health;
  • Challenge discriminatory, punitive and outdated laws that apply to health, including for vulnerable and key populations;
  • Change laws, policies and practice in relation to health;
  • Create an enabling environment that protects human rights and the rule of law.

Strategic litigation requires strong partnerships between legal organisations, civil society organisations and key population networks, working together to identify, document, refer and defend human rights violations. Capacity strengthening interventions are critical to creating these strong partnerships, ensuring organisations are sensitized to the issues and able to combine their expertise to bring important cases to court.

A sensitized judiciary is also critical to support progressive court judgements on health and rights of key and vulnerable populations. See the ‘Training judges’ page for more information on work to sensitize judges.

Case Study: High Court ruling set to change lives of transgender persons in Botswana

In Botswana, as in most countries, a person is given a gender identity at birth. For transgender people, this gender assignment may mean growing up and living with official identity documents that don’t respect and reflect their lived gender identity. This impacts on their lives and access to services in many ways, including on access to health care services. For instance, transgender persons whose identity is reflected as male on their official documents may automatically be treated as a man by health care workers and may not receive the information and services appropriate for their gender identity. Challenging and changing this gender marker on official documents is difficult, since laws often require complex medical or surgical evidence in order to effect the change. A transgender man who self-identifies as a man but was assigned a female gender identity at birth, challenged the Botswana Registrar of National Registration’s refusal to change his gender marker, in the Botswana High Court. Represented by Botswana law firms with the support of the Southern African Litigation Centre and Open Society Initiative of Southern Africa, the applicant presented psychological and medical evidence to show that his innate gender identity is, and has always been male. He showed that the state’s failure to formally recognise his gender identity had caused him significant trauma. On 29 September 2017, the Lobatse High Court held that the refusal to change the applicant’s gender marker was unreasonable, violating his rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment. The Registrar of National Registration was ordered to change the applicant’s identity document. According to LGBT and Sex Worker Rights Programme Lawyer at the Southern Africa Litigation Centre, Tashwill Esterhuizen: “This is a monumental victory for the rights of transgender persons in the region. The judge’s finding that the refusal to change a transgender person’s identity documents violates constitutional rights, goes a long way in improving the lives of transgender persons.”

Read more: Botswana High Court rules in landmark gender identity case

Case Study: Nigerian court decision protects employees against HIV-discrimination

On 26 September 2018, the National Industrial Court of Nigeria set a new precedent when it found that forcing a security guard to test for HIV and dismissing him on the basis of his HIV-positive status, violated national and international law. In its judgement, The Abuja Industrial Court, found, that the Nigeria’s Constitution and the 2014 HIV and AIDS Anti-Discrimination Act applied to private employers and prohibited HIV-related discrimination against existing and prospective employees.

Mr X was granted anonymity by the court to prevent public disclosure of his HIV status. He was employed as a security guard at the United States Embassy in Abuja by Sterling Operation and Kings Guard Nigeria Limited. The court declared that the employers’ act of compelling the claimant, Mr X, to undergo an HIV test violated his rights to dignity and privacy and dismissing him on the basis of his HIV status was a violation of his right to work and to confidentiality. The court also found that the dismissal was a violation of the claimant’s right to earn a living and to social participation through work, in violation of Article 23 of the Universal Declaration of Human Rights, 1948, as well as a violation of the right to dignity, life and liberty and security of the person in terms of the Chapter 10 of the African Charter on Human and People Rights.

Lawyer’s Alert, the civil society organization representing Mr X, has participated in training on HIV, law and human rights under the UNDP-funded Africa Regional Grant on HIV: Removing Legal Barriers, between 2016 and 2018. The organisation noted that the court decision has “empowered people living with HIV, like Mr X, who continue to live in the shadows of stigma, to know they can enforce their rights. The decision is a warning against employers that the law will attach consequences to HIV-based discrimination.” Annabel Raw, Health Rights Lawyer at the Southern Africa Litigation Centre, noted that the court victory is a good example of how human rights activists can use strategic litigation to fight stigma and discrimination: “This kind of legal support is a powerful antidote to stigma and discrimination that people living with HIV face despite the existence of good laws on paper,” she says in SALC’s article on the case.