The Inter-American Commission on Human Rights (IACHR) recently released its decision in a case concerning discriminatory treatment of two Mexican soldiers with HIV, after concluding that Mexico had complied with all its recommendations for remedying the violations. See IACHR, Report No. 80/15, Case 12.689, J.S.C.H and M.G.S. (Mexico), 28 October 2015. The complaint, brought on behalf of two former members of the National Defense Secretariat, alleged that Mexico violated the American Convention on Human Rights (American Convention) by requiring the victims to retire from their positions without benefits, pay, or pension based on their HIV status. The petitioners further alleged that they were denied the right to fair trial in the process of appealing the forced retirement. The Commission found Mexico in violation of its obligation to give domestic legal effects to the rights to non-discrimination, a hearing within a reasonable time before an impartial tribunal, privacy, and equal protection of the law without discrimination. It found no violation of Article 5.1 (humane treatment) of the American Convention, holding that Mexico’s dismissal of the victims and their subsequent lack of pay and benefits did not constitute inhumane treatment. See id. The decision was announced shortly after World AIDS Day, which was observed on December. [IACHR Press Release]
In its merits report, the Commission recommended that Mexico provide the victims with any comprehensive health services needed; make complete reparations to the victims, including financial, moral, and, if desired by the victims, reinstatement in the Armed Forces; and to bring the Mexican Armed Forces Social Security Law (MAFSS Law), which governs the conditions under which a person can be retired from service, into compliance with the non-discrimination, privacy, and equal protection provisions of the American Convention. See IACHR, J.S.C.H. and M.G.S. (Mexico), 28 October 2015. Following the IACHR’s confidential release of the decision to the State and petitioners, the parties executed an agreement on reparations that recognized the victims’ desire to be reinstated in the army, required a ceremonial acceptance of responsibility, ensured amendment and evaluation of the legislation to guarantee non-repetition, and required implementation of training in the armed services on non-discrimination against persons with HIV/AIDS. Id. at paras. 141-47.
The IACHR determined that Mexico “fully complied with the recommendations set forth in Merits Report 139/11, as well as with the additional components of the agreement entered into by the parties.” It found that no additional evaluation would be necessary. Id at para. 168.
The decision elaborates on the international jurisprudence requiring that any difference in treatment based on HIV status be reasonable, as well as suitable and strictly proportional to pursuing a legitimate purpose. See id. at para. 99 et seq. This is apparently the first time that the IACHR has published a detailed discussion of its analysis on this issue. , For example, a previous decision found that the treatment of a hospital patient with HIV, wherein he was provided with a drinking glass marked “XXX” that no other patient used, was “utterly unreasonable and demeaning,” but the IACHR did not explain the relevant standard or analysis. See IACHR, Report No. 27/09, Case 12,249, Jorge Odir Miranda Cortez, et al. (El Salvador), 20 March 2009, para. 74.
Background and Facts of the Case
Several petitioners submitted separate complaints on behalf of J.S.C.H. and M.G.S. in April 2004. See IACHR, J.S.C.H. and M.G.S. (Mexico), 28 October 2015. The Commission joined the petitions in October 2008. In February 2009, the Commission adopted its report finding the admissibility requirements had been satisfied. See IACHR, Report No. 03/09, Petitions 302-04 and 386-04, J.S.C.H. and M.G.S. (Mexico), 4 February 2009. At the request of the petitioners, the IACHR has kept the victims’ identities confidential from the public.
J.S.C.H. had served for 19 years as a driver ranked Second Lieutenant before being discharged in 1998. M.S.G. had served for 12 years as an infantry corporal when he was discharged in 2002. The results of their medical tests were given to non-medical personnel within the army so that each would be forced to retire, pursuant to Article 22 of the Mexican Armed Forces Social Security Law (MSFSS Law), which established untreatable conditions of cellular or humoral immunodeficiency as grounds for dismissing HIV positive personnel. Id. at para 11.
Both victims unsuccessfully pursued redress through administrative channels and then before the Mexican courts to request benefits, including their pensions and ongoing medical care. The domestic courts held, in the case of J.S.C.H., that HIV was an appropriate reason for discharge and, in the case of M.G.S, that he had tacitly agreed to the discharge by not immediately challenging it when he was first notified of the decision. Id. at paras. 43-68.
The MAFSS Law was subsequently modified, but the relevant discriminatory provisions were maintained.
Analysis on the Merits
Articles 24 and 1.1- Equal Protection and Non-Discrimination
The Commission distinguished Article 1.1 (obligation to respect rights) from Article 24 (equal protection) because the former applies to non-discrimination with regard to enumerated rights in the American Convention whereas the latter requires a State to ensure that all people equally enjoy the protections both of the American Convention and of the national laws. The Commission found that the facts giving rise to this case implicate both articles because the victims’ discharge on the basis of their HIV status impacted their rights under the American Convention, as well as their specific rights as members of the Mexican armed forces. Id. at paras. 82-85.
Despite HIV status not being one of the grounds of discrimination specifically listed in Article 1, the Commission referred to both international and regional precedents that include health or HIV status in the “other status” category of prohibited reasons for different treatment. The IACHR looked to the doctrine of several international bodies that have interpreted this phrase to include health, and particularly HIV/AIDS status. The Commission emphasized the vulnerability and stigmatization of people living with HIV, which the Commission and Inter-American Court have recognized. Moreover, the Commission reiterated its understanding that the American Convention and other human rights treaties are intended to be “living instruments” capable of adapting to society’s protection needs as they evolve. Id. at para. 99.
Under international law, not all distinctions on a protected basis constitute discrimination; differential treatment is permissible if it is “reasonable and objective,” meaning the difference is treatment is intended to advance a legitimate purpose, there is a fit between the means and the ends, no less restrictive alternatives exist, and the means are proportional to the ends. In this case, the Commission agreed that Mexico’s different treatment of soldiers with HIV had a legitimate purpose: to maintain good health among its military personnel such that they are fit to carry out all missions. However, it found that the there was no evidence or appropriate medical inquiry regarding whether the victims’ HIV status would actually impair their ability to effectively continue their service. Thus, the IACHR determined that automatic retirement based on HIV status was not proportional or closely enough related to the goal of maintaining a minimum level of health to adequately perform one’s duties. See id. at para. 109.
Article 11- Right to Privacy
The State has an obligation to prevent “arbitrary and abusive” interference with an individual’s private life; hence a State can defend its interference with one’s private life if the action is reasoned. In this case, Mexico had argued that it shared the victims’ medical information with non-medical military personnel to ensure that they were not placed on a mission that would threaten their health, the safety of other personnel or civilians, or where their health could jeopardize the mission. However, the IACHR rejected this argument because it believed the authorities’ goal was to bring about the retirement of the victims not to regulate their ongoing service. Moreover, the Commission noted that the United Nations Human Rights Committee has recommended domestic laws be amended to ensure medical confidentiality, which is especially relevant with regard to HIV because of the social stigma and psychological impact associated with disclosure of a person’s HIV status. See id. at paras. 124-127.
Article 8.1- Right to Fair Trial
The IACHR determined whether Mexico had respected the victims’ right to a fair trial, which includes the right to a hearing within a reasonable time by an impartial authority. In the case of J.S.C.H., the Mexican courts found that HIV status automatically warrants discharge and considered it an untreatable condition. The IACHR viewed this decision in light of its determination that the discharge was discriminatory, and held that the judicial proceedings reflected and perpetuated the same discrimination and stigma against persons with HIV. In M.G.S.’s case, the Mexican court never considered the merits of his claim, which the Commission found to violate Article 8.1 of the American Convention because his complaint was rejected without substantiated analysis. Id. at paras. 135 and 138.
Jurisprudence on HIV Status
While the Commission has not previously analyzed in-depth whether different treatment of persons based on their HIV status violates the American Convention on Human Rights, it has stated that special attention is required when addressing the rights of persons with this disease. See IACHR, Report No. 5/14, Case 12.841, Ángel Alberto Duque (Colombia), 2 April 2014; IACHR, Report No. 102/13, Case 12.723, Gonzáles Lluy (TGGL) and family (Ecuador) (Spanish), 5 November 2013.
In Ángel Alberto Duque v. Colombia, the Commission held that his case called for “exceptional diligence” because his condition rendered his claim for pension benefits crucial due to his medical well-being. The IACHR found that Colombia violated the American Convention by denying Duque the pension benefits of his deceased same-sex partner, which would have been afforded to an opposite-sex partner. It found a violation of Duque’s personal integrity, particularly in light of his specific medical needs. IACHR, Report No. 5/14, Case 12.841, Ángel Alberto Duque (Colombia), 2 April 2014, at paras. 1, 102. In a case concerning a child infected with HIV through a blood transfusion from the Red Cross, the IACHR found a violation of rights to life, dignity, personal integrity, and judicial guarantees and judicial protection because the government had failed to properly oversee the blood bank, investigate the incident, or provide the child with appropriate medical care. IACHR, Report No. 102/13, Case 12.723, T.G.G.L. (Ecuador), 5 November 2013. The Commission referred both of these cases to the Inter-American Court after the States involved failed to comply with their recommendations for repairing the violations. [IACHR Press Release: Duque; IACHR Press Release: TGGL]
Similarly, the United Nations Committee on the Elimination of Racial Discrimination (CERD) has noted the stigma of HIV/AIDS status and its impact on the rights of particularly vulnerable or marginalized groups, including racial and ethnic minorities. In a complaint decided earlier this year, CERD found mandatory AIDS/HIV testing of foreign workers for employment or residence purposes to be discriminatory. See CERD, L.G. v. Republic of Korea, Communication No. 51/2012, Views of 1 May 2015, para. 7.4.
The European Court of Human Rights (ECtHR) has also addressed employment discrimination against individuals with HIV. The ECtHR rejected Greece’s justification that I.B.’s dismissal was to restore order and preserve a good working environment at the bequest of his coworkers. It held that the State had failed to demonstrate proportionality and fit of the means to such an end. Moreover it held that I.B.’s dismissal and subsequent failure in the judicial system to remedy it re-inforce negative prejudice and stigma. See ECtHR, I.B. v. Greece, no. 552/10, Judgment of 3 October 2013.
The Inter-American Commission on Human Rights is a regional human rights body. It is empowered to hold thematic hearings, publish reports and studies, and appoint rapporteurs to monitor specific geographic and thematic areas of concern. In addition, it hears complaints from individuals and non-governmental organizations concerning alleged violations of the American Declaration of the Rights and Duties of Man, American Convention on Human Rights, and other regional human rights instruments.