"Rugged vaginas" and "vulnerable rectums": the sexual identity, epidemiology, and law of the global HIV epidemic.

• Author: Ahmed, Aziza
• Position: Introduction through III. Shifting Terrain: HIV/AIDS and the Return to Biology A. HIV/AIDS in the United States: (68

Abstract

AIDS remains amongst the leading causes of death globally. Identity is the primary mode of understanding HIV and organizing in response to the HIV epidemic. In this Article, I examine how epidemiology and human rights activism co-produce ideas of identity and risk. I call this the "identity/risk narrative": the commonsense understanding about an identity group's HIV risk. For example, epidemiology offers the biological narrative of risk: anal sex and the weak rectal lining make men who have sex with men more vulnerable to HIV; while the fragility of a woman's vaginal wall provides a biological foundation for women's vulnerability. These biological narratives underpin rights-claiming in international human rights institutions: many women's rights activists and gay rights activists rely on these biological ideas of risk to define their groups and demand legal and policy change. The corresponding legal projects emanate from identity driven projects.

While acknowledging identity's potential as an organizational force, this Article argues that we must critically interrogate our reliance on identity politics in building movements to respond to the HIV epidemic. Through telling the history of gender organizing in the context of the international HIV epidemic and international human rights law, this Article encourages HIV-movement lawyers and activists to remain vigilant about the downsides of identity politics so that we can remain responsive to the most marginalized communities. In other words, we must be attuned to the downsides of identity politics, even as it may feel like a necessary mode of activist engagement, in order to protect people and issues that are left out of identity-based movements and strengthen the response to HIV and AIDS.

I conclude this Article by offering strategies to minimize the downsides of identity-based legal advocacy through shifting the mode of legal advocacy around HIE By remaining vigilant about destabilizing identity, taking a consequentialist approach, and remaining focused on the background rules, advocacy can remain agile and responsive to the impact of HIV.

"According to the latest (2008) WHO and UNAIDS global estimates, women comprise 50% of people living with HIE In sub-Saharan Africa, women constitute 60% of people living with HIE In other regions, men having sex with men (MSM), injecting drug users (IDU), sex workers and their clients are among those most-at-risk for HIE but the proportion of women living with HIV has been increasing in the last 10 years." (1)

--World Health Organization, 2012

INTRODUCTION

AIDS remains amongst the leading causes of death globally. (2) The quotation above, set into circulation by the World Health Organization, reproduces the grammar of the HIV epidemic: risk, vulnerability, and population. Quotations like this one manage our understanding of HIV, describing who will contract HIV and who is most deserving of our attention. Consequences follow: funding is allocated and resources are divvied. In a world with purportedly finite resources for human survival, we resort to cost-benefit analysis--some people have to die for others to survive. Or perhaps more accurately, some types of people have to die for other types of people to survive. (3)

As groups must compete for resources, identity becomes the primary mode of understanding, managing, and responding to the HIV epidemic. I define identity as a series of core representations that become commonsense knowledge about a given group. These representations collectively shift and recompose. (4) Existing identity narratives, epidemiology, and through international human rights activism co-produce (5) ideas of identity and risk. (6) I refer to this phenomenon as the identity/risk narrative. For example, epidemiology offers the biological narrative of risk: anal sex and the weak rectal lining make men who have sex with men more vulnerable to HIV; while the fragility of women's vaginal wall provides a biological foundation for women's vulnerability. These biological narratives underpin rights-claiming in international human rights institutions: many women's rights activists and gay rights activists rely on these biological ideas of risk to define their groups and demand legal and policy change. The corresponding legal projects emanate from identity driven projects. For example, building out of women's rights activism, the women's rights agenda in regard to HIV is to alter laws that subordinate women, including property laws and laws on violence against women. Building off of the gay rights movement, the gay rights agenda in HIV is to alter laws that subordinate sexually diverse practices, including sodomy laws.

In producing the identity/risk narrative, communities and individuals come to both represent themselves and understand themselves. (7) In this sense, identity itself becomes a mode of governance as individuals regulate their own identity performance to match that of their group. This Article examines the formation and operation of three identities--women, sex workers, and gay men--in the context of legal advocacy on HIV and human rights.

While acknowledging identity's potential as an organizational force, this Article argues that we must critically interrogate our reliance on identity politics in building movements to respond to the HIV epidemic. Through telling the history of gender organizing in the context of the international HIV epidemic and international human rights law, this Article encourages HIV-movement lawyers and activists to remain vigilant about the downsides of identity politics so that we can remain responsive to the most marginalized communities. In other words, we must be attuned to the downsides of identity politics, even as it may feel like a necessary mode of activist engagement, in order to protect people and issues that are left out of identity-based movements.

Part I of this Article begins with the Global Fund for HIV/AIDS, TB, and Malaria Gender Strategy ("Gender Strategy") that highlights the formation of and the role of identity politics .in HIV governance. The Gender Strategy was eventually split into two strategies: one on "gender equality" addressing men and women and a second on "sexual orientation and gender identity" pertaining to gender and sexuality understood more broadly than male/female. (8) The bifurcated strategy represents an outcome of the identity/ risk narrative. A close examination of the Gender Strategy demonstrates how identity has itself become a mode of governance of the self, of the performance of identity, and of knowledge production.

Part II provides a genealogy of how gender and sexuality identity politics exist in the form that we see them today in HIV legal advocacy. I situate the spread of identity-based knowledge in HIV international legal advocacy inside the resurgence of a neo-formalist legal reasoning about rights and citizenship reinforced, amongst other legal transformations, by the rise of human rights. (9) I begin with the rise of the global women's rights movement and feminist engagement in international law. I highlight two main conflicts inside the global women's rights movements that appear repeatedly in international law and human rights advocacy: dominance feminism versus sex-positive feminism and the stabilization of sex and gender versus gender constructivism. Each of these conflicts represents the production of a new (and often conflicting) stream of knowledge about gender and sexuality.

Part III resituates the history of identity politics around gender, sex, and sexuality within the spread of and response to HIV. With the rise of HIV, new players, including gay men and sex workers, came into the international human rights legal arena. They sought to utilize international law to address HIV/AIDS. The gay men's health response to HIV in the United States laid a foundation for gay identity politics in international human rights. (10) Simultaneously, sex worker rights groups coalesced in Europe and the United States and formulated an identity with which to participate in the international human rights regime to claim rights and demand protection from the state. Bringing together Part III and Part IV, I show how the construction of biological vulnerability to the HIV epidemic underpins the formation of competing HIV identities upon the existing feminist legal terrain. (11)

Part IV examines some of the consequences of identity-based activism in international human rights law for the response to HIV: it masks our understanding of HIV transmission, excludes individuals who do not fit neatly into identity-demarcated territory, and deradicalizes HIV activism.

Part V examines how legal advocates might address the challenges of identity-based legal advocacy in HIV. I propose that by remaining vigilant about destabilizing identity, taking a consequentialist approach, and remaining focused on the background rules, advocacy can remain agile and responsive to the impact of HIV.

This Article does not question the remarkable progress or the strategic decisions made by HIV activists in the face of a deadly epidemic occurring in the contexts of political and...