Discrimination in Public Health: How Funders Should Fight Laws Like Uganda’s Anti-Homosexuality Act

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On April 3, 2024, Uganda’s Constitutional Court upheld the Anti-Homosexuality Act that President Yoweri Museveni had signed into law a year ago. Uganda’s law establishes a wide range of crimes targeting lesbian, gay, bisexual, transgender, and queer (LGBTQ+) people and their allies and was labeled “one of the most extreme anti-LGBTQI+ laws in the world” by White House press secretary Karine Jean-Pierre. The petitioners have filed an appeal in Uganda’s Supreme Court. Given President Museveni’s enduring 38 years in power, there is some skepticism as to whether those judges can act independently of his pen.

In response to Uganda’s law, the World Bank suspended all lending to Uganda. The U.S. government executed a range of actions including sanctioning the head of the Ugandan prison service, ending Uganda’s eligibility under the African Growth and Opportunity Act for 2024, and redirecting $5 million in funding from the President's Emergency Plan for AIDS Relief (PEPFAR) from the Ugandan government to nongovernmental organizations.

Donor governments contribute more than 50 percent of Uganda’s health sector funding. National budget allocations for the health sector have shrunk on a per capita basis in recent years, while budgets for the president’s office, security, and classified expenditures have ballooned. Construction of super specialized white elephant hospitals attracts extensive private sector investment, eclipsing funding for public sector health worker recruitment and retention, medicines, and the local health clinics where the most marginalized people seek essential and lifesaving health services.

The breadth and vagaries of the new law as upheld by the recent Constitutional Court ruling raise urgent and serious questions for funders of Uganda’s health sector about how to operate given a context rife with state-sanctioned discrimination and violence. If and how such funders reformulate their approach and if or how they reorient their funding to public health work is critical, not only for Uganda but also because other countries, including Ghana and Kenya, are weighing similar legislation.

How the New Law Betrays Best Practices in Addressing HIV

Laws like Uganda’s—which codify stigma and discrimination and drastically increase criminal penalties for even being perceived to be LGBTQ+—are clear barriers to an effective HIV response and drive people away from disease prevention, testing, and treatment. 

There is ample evidence that criminalization causes disproportionate vulnerability for gay and bisexual men and transgender women, sex workers, and people who use drugs. Countries with criminalizing laws and policies are substantially more likely to have poorly controlled HIV epidemics, according to the HIV Policy Lab. Under Uganda’s law, health services focusing on the needs of these key populations run the risk of criminal charges and imprisonment of beneficiaries. Decades of public health research shows that equitable access to safe and quality HIV services, designed with the specific health needs of target populations in mind, is a prerequisite to an effective response. Criminalization of same-sex conduct is associated with vastly greater HIV risk and worse HIV outcomes.

When a person fears being outed in a context rife with violence, hate, and discrimination, they are too afraid to seek healthcare. Data from Uganda demonstrates that homophobic abuse is associated with increased vulnerability to HIV infection: in Kampala, gay men who have experienced verbal or physical homophobic abuse are five times more likely to be HIV positive than those who have not experienced such abuse. HIV prevalence among men who have sex with men in Kampala is more than three times the average prevalence among heterosexual men in Kampala and more than twice as high as the national average. This is because criminalization drives people away from HIV prevention, testing, and treatment—not because of anything unique about the health of men who have sex with men.

However, Uganda’s Anti-Homosexuality Act extends far beyond the preexisting criminalization of “carnal knowledge against the order of nature” in the Penal Code Act—a legacy of British colonial rule. The new law includes the criminalization of the “promotion of homosexuality.” This “crime” imposes up to 20 years’ imprisonment for any act by a person, LGBTQ+ or not, that “promotes” being LGBTQ+ and imposes liability on people or legal entities that provide financial support to “facilitate activities that encourage homosexuality or the observance or normalisation of conduct prohibited under this Act.” This profoundly further complicates health funders’ ability to implement well-established best practices in response to HIV, because now the very workers employed to implement HIV prevention and treatment, who are bound by globally accepted principles of medical ethics, could face imprisonment for 20 years just for doing their jobs.

In order to be effective, health services must be welcoming, non-stigmatizing, and must use messages and approaches that are designed strategically, based on specific communities’ public health needs. All Ugandans, including LGBTQ+ people, have substantial needs for health services from healthcare workers who don’t fear employing best practices. Ensuring welcoming health services for LGBTQ+ people requires normalizing “the observance of homosexuality,” which is now a crime.

The Court’s Harmful Mischaracterization of Well-Established Best Practices

A Ugandan legal scholar recently labeled the court’s ruling upholding the Anti-Homosexuality Act as “Uganda’s Dred Scott,” referring to the U.S. Supreme Court’s 1857 decision widely considered its worst decision in history. In an apparent attempt to force legal reasoning around a political problem, the Ugandan judges warp fundamental best public health practices while amplifying homophobia. The judges distort data—arguing that gay and bisexual men and transgender women’s disproportionate risk of HIV infection and the “burden” this poses for the health system is evidence that they deserve discrimination—rather than linking how criminalization drives disease by driving people away from testing and treatment. 

Ironically, the judges assert that they are enforcing the right to health by striking down one clause, the so-called duty to report. This provision had made it a criminal offense not to report to the police someone who was suspected of committing any crime defined in the law. This turned everyone in the country into mandated reporters, empowered to engage in witch hunts against LGBTQ+ people and their allies, including healthcare workers employing best practices. Although the judges point out that criminalizing health workers for failing to report their patients to the police violates the right to health, meaningfully protecting the right to health clearly requires more than that low bar. And even in the wake of the ruling, healthcare workers themselves remain at risk of prosecution for “promotion” for their own work in providing testing and treatment to real or perceived LGBTQ+ people.

The judges argue that the right to health is protected because health workers are obligated to uphold patient confidentiality or face discipline by their professional councils. But Uganda’s disciplinary bodies routinely fail to act in the interest of justice for patients. When a doctor denied emergency services to a critically ill transgender HIV-positive woman at a large Kampala hospital in 2023, it triggered no disciplinary or ethics action. Generally, allegations of violations of medical ethics in Uganda’s healthcare sector, even not when related to the experiences of LGBTQ+ people, fail to trigger consequences.

In the wake of criticism, Uganda’s Ministry of Health pointed to national directives regarding nondiscrimination in health service delivery, but these directives do not carry the force of law, and police officers have no obligation to enforce them. In 2014, similar directives were in place when the 2014 Anti-Homosexuality Act was in force and such assurances did nothing to prevent the daytime police raid on a PEPFAR-funded HIV clinic run in collaboration with Walter Reed Army Institute of Research and the U.S. Military HIV Research Program in which police accessed patients’ confidential health data and arrested a clinic staffer, closing the clinic for six weeks and severely interrupting patient care.

Likewise, obligations to uphold patient confidentiality are part of the Ugandan Patients’ Charter adopted in 2009 by the Ministry of Health. But this charter has not prevented gross human rights violations and does not have supremacy over the Anti-Homosexuality Act. The judges’ citation of the Patients’ Charter does not provide a shield against the stated and explicit intent of the law—to deny LGBTQ+ people their fundamental right to exist as who they are.

Priority Actions for Health Funders

In the wake of the recent court ruling, PEPFAR’s John Nkengasong said that PEPFAR “will continue to support the most vulnerable communities in Uganda without discrimination” because doing so “is critical to achieving our goal of ending HIV/AIDS as a public health threat by 2030.” While such statements are welcomed, much less has been said about how exactly such funders will operate in the new context created by the absurdities of the law.

All health funders should urgently and radically rethink and reorganize their approach to their work in Uganda, remaining cognizant of the horrific climate for basic rights to healthcare and the criminalization of the very work proven to be most effective in fighting HIV.

  1. Reallocate all funding to nonstate entities committed to nondiscrimination.

In 2023, activists called on PEPFAR to stop all HIV funding flowing through Ugandan government channels and instead reprogram those funds through nongovernmental organizations that have strong track records of providing stigma-free services to criminalized communities. Despite the pledge to “support the most vulnerable,” PEPFAR only pursued the minor adjustment of $5 million out of at least $26.2 million in planned spending for FY24 in “government to government” grants. Before approving FY25 PEPFAR funding, these grants should be canceled and the funding reallocated and reprogrammed.

The Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund) is the largest multilateral funder of Uganda’s public health sector after PEPFAR, having committed $771 million to the country for its 2021–2023 allocation cycle, of which the government is the recipient of $700 million. Beyond two statements expressing concern over Uganda’s law and over the Constitutional Court ruling, the Global Fund has taken no further action. One month after the most recent statement, Global Fund executive director Peter Sands traveled to Uganda and appeared alongside the deputy speaker of Parliament and minister of health, both parliamentarians who ardently support the law. 

This hands-off approach contrasts sharply with the Global Fund’s repeated intervention in response to mismanagement of funding—in 2005, the Global Fund suspended all of Uganda’s grants, and in 2008 it imposed a $12 million cut in funding over a corruption scandal.

Government funding channels should be eschewed in favor of funding organizations that oppose the law and can be trusted to deliver services to criminalized communities in a context of nondiscrimination. Nongovernmental organizations known to support discrimination should also be defunded and their funds rerouted to those that can commit to nondiscrimination and best practices.

At the same time, approaches that improve access, such as 24-hour, key population–focused clinics and clandestine, home-based delivery of prevention and treatment, should be expanded and fully funded.

  1. Set budget lines for legal support for staff and beneficiaries.

In addition to reprogramming funds away from government channels, PEPFAR, the Global Fund, and other donors to health programs should set aside dedicated, ring-fenced budgets for all legal support costs for program staff and beneficiaries. Even before the passage of the law, staff funded by PEPFAR grants reported police harassment and intimidation, for example when carrying out nighttime HIV testing of sex workers and their clients. Funding for legal support is needed to ensure any threat of legal action generates an aggressive and immediate response.

  1. Require written commitments by grant implementers not to discriminate.  

PEPFAR, the Global Fund, and all other donors to the health sector should require program implementers to commit to nondiscrimination in order to attempt to minimize harm from the law. Many civil society program implementers support the law and should not receive health funding as they cannot be trusted to deliver stigma-free services. The veracity of these commitments should be regularly stress tested through community-led monitoring and other independent, community measures of patient satisfaction.

Such steps are the beginning of a pathway for PEPFAR, the Global Fund, and other major donors to take to protect their staff and their intended beneficiaries. Reassessing the entire strategy for deploying treatment, prevention, and care services in the face of the Anti-Homosexuality Act is critical to demonstrating a principled and effective approach to public health.

Asia Russell is the executive director of Health GAP. Maria Burnett is a senior associate (non-resident) with the Africa Program at the Center for Strategic and International Studies in Washington, D.C.

Asia Russell

Executive Director, Health GAP