A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
This is a guest post from Alexander Maine. This post first appeared on LAGLA North East.
In July, a judge in the High Court decided that NHS England did have the authority to provide the preventative HIV drug PrEP. Pre-Exposure Prophylaxis is given to those at a ‘high risk’ of contracting HIV, (or used to stop HIV from becoming established in the event of transmission), and should be used as an increased protection against the spread of sexually transmitted infections.
The NHS England has been given leave to appeal the High Court decision due to funding concerns, and although the majority of the case is concerned with the due allocation of funding within legislation between local authorities and NHS England, this case is of symbolic importance. This case serves to recognise the validity of sexual practice that may be deemed to be ‘high risk’.
The law has typically ignored same-sex sexuality in previous cases and pieces of legislation, most notably in the removal of references to sexual intercourse in the Marriage (Same-Sex Couples) Act 2013. This ignorance can also be seen in the continued reluctance to deal with any redefinition of adultery or consummation, away from the heterosexual standard. This reluctance now flies in the face of the equality that has been won through the recognition of same-sex relationships and marriages.
Recognising the need to provide further protection to those at a higher risk of contracting HIV, (who are most typically transgender women and gay men), is of crucial importance in the task of preventing the further spread of the disease. Transgender women and gay men are the group most at risk, however it is important to remember that no one is immune rom HIV, and transmission is likely to affect all of the LGBT+ and heterosexuals with just as many negative effects. The decision in the High Court received vicious and intensely homophobic backlash in the media, illustrating that there is still a significant amount of work still to be done in improving acceptance and tolerance. The continued refusal of the NHS to provide the treatment and the homophobia that followed will surely contribute to the continuance of the spreading of the HIV in circumstances that could have been prevented. Although there is an argument that everyone has a personal responsibility with regard to their own sexual relations and conduct, the reality is that the virus has continued to spread in the past 30 years, with over 4,000 diagnoses a year, and so this argument holds no real weight.
The decision in National AID Trust v NHS England is a historic, positive step; however it is in danger of being reversed due to the homophobic discourses that fuel arguments against the protection of LGBT+ people’s health, and the divisive way the NHS and media have pitted HIV treatment and other treatments for illnesses such as cancer against each other. This discourse is dangerous and will not help anyone at risk of developing HIV, nor those who already live with the disease.
The chief executive of the National AIDs Trust has called the delay in the provision of PrEP unethical, and expensive, while the chair of the BMA Public Health Committee has come out in support of the provision of the life-saving drug. However, with the date of appeal still unannounced, and NHS England’s position still firmly anti-PrEP, it is unlikely that this delay, and the homophobic attitudes involved, will soon be resolved.
Alexander Maine is Vice-Chair of LAGLA North East and is a PhD student based in the Law School at Northumbria University.