Two activists discuss decriminalization efforts in Mexico and the U.S.
By Leonardo Bastida and Marco Castro-Bojorquez

Journalist and historian Leonardo Bastida, based in Mexico City, and Marco Castro-Bojorquez, an activist and filmmaker of Mexican descent living in California, met at the HIV is Not A Crime (HINAC) activist training academy, organized by the SERO Project and Positive Women’s Network-USA. Here, they discuss HIV criminalization, specifically against queer and other marginalized communities, here and in Mexico.

HIV criminalization in the U.S.

Leonardo Bastida: During the last HIV Is Not A Crime (HINAC 3) training academy [in June], one of the issues brought to light was that African Americans were more likely to be prosecuted for criminal transmission of HIV than other racial groups. How do ethnicity and race affect other groups such as Latinos, whose members grow up in another cultural context, many of whom have been denied, or do not have, legal immigration status?

Marco Castro-Bojorquez: HIV is a racial issue, an economic issue, and a cultural issue. For the longest time the behavior or personality traits of people of color were blamed for the higher rates of HIV and other STIs, when in reality the socioeconomic aspects of people’s lives, racial discrimination, stigma, and geography, to name a few, are factors that determine how HIV affects a person in their lifetime. At HINAC 3 there was a Black United Leadership Institute (BULI) right before the conference and this event gave our colleagues of African descent an opportunity to engage around a series of issues affecting black Americans, but more importantly, they had the opportunity to be among other black advocates.

People of color are disproportionately affected by HIV in the U.S., especially women, young people, and LGBTQ folks. We lack access to testing, prevention, care, and accurate data due to lack of inclusion in research. That’s why recently a group of national HIV/AIDS advocates of color, myself included, created HIV Racial Justice Now, a collaborative group of leaders in the community, and we drafted a framework called A Declaration of Liberation: Building a Racially Just and Strategic HIV Movement. With this framework, we hope to inspire other leaders of color working in HIV to demand racial justice within our movement, and we are working with organizations and research groups that are interested in adopting it as they engage in HIV care, prevention, research and advocacy so that they analyze and adjust their practices and create meaningful change in their communities.

Bastida: In most of the states that belong to the American Republic, the law punishes people living with HIV who do not reveal their status. Do these actions help to diminish new HIV infections or just control a person’s sexuality as a kind of biopolitics in order to relate sex to a reproductive matter?

Castro-Bojorquez: These actions do not help anything or anyone!

Any law criminalizing someone’s health condition is a bad law.

We don’t need for the government to send us to jail because we’re sick. We need health care, housing, food, and jobs, and we need for the government to stop trying to kill us, that’s what we need. People living with HIV in the U.S. aren’t going to be quiet or passive. We’ve been fighting for our lives since the beginning of the pandemic and we’ll continue to do so. I would fight till the day I die so we can be treated equally and with respect.

HIV criminalization is not just an HIV issue but affects all communities, especially those that are the most marginalized, like women, transwomen, sex workers, people that use drugs, and people of color in general. There’s a disruption in anyone’s life once you’re criminalized because of your HIV status. Every aspect of your life gets negatively affected and it is something I don’t wish anyone to experience, and so my heart goes out to our HIV criminalization survivors and their families!

Bastida: How difficult is it to modernize laws in a country that does not care about human rights, in fact, prefers to call them “civil rights,” and does not accept international recommendations from global agencies and organizations, such as the United Nations or the Organization of American States?

Castro-Bojorquez: It isn’t easy but it is possible. I was a lead organizer in California in the efforts to modernize HIV laws and it was a monumental effort. We fought for over three years and there were really difficult times, both internally in our work as a coalition and externally in some of the reactions from the public’s lack of awareness, but we did it. It wasn’t perfect but I know that, for now, I don’t have to worry about being sent to prison because of my HIV status.

In my opinion, we need to abolish all these laws and not just “modernize” them, but I understand it is a process. All people unjustly incarcerated right now should be freed and returned to their homes with their loved ones. Because HIV is Not a Crime!

When I participated in the so-called “National HIV/AIDS Strategy” and the word “immigrant” was nowhere to be found, I realized that my work needed to be more intentional and embrace human rights principles as my personal framework in any efforts in which I am involved. Just recently I was invited into an important fellowship, by the U.S. Human Rights Network, to their 2018 Fighting Injustice through Human Rights Education (FIHRE) program. As a USHRN FIHRE fellow, I would more formally incorporate human rights principles into my work in HIV/AIDS.

Bastida: Some of the activities at the HIV Is Not a Crime academy were related to art. What is the relevance of using artistic projects to sensitize populations about a problem such as HIV criminalization?

Castro-Bojorquez: Diego Rivera said that every Mexican child is born an artist. I love being an artist and an activist, and I honestly feel that it is with my filmmaking that I better express myself and feel the most connected to people. At HINAC 3
we had different expressions of art, from a poster contest, films, ballroom à la “Indianapolis is burning”—and my altar! [In Mexican culture, an altar pays tribute to the dead.]

For the second time around, I was fortunate to create an altar at the conference to honor the legacy of our sisters and brothers who died because of complications with AIDS and to embrace the idea of celebration even in death. I loved the connections I made during the evenings the altar was open and the stories we heard as a collective.

HIV criminalization in Mexico

Castro-Bojorquez: When I was in Mexico City in 2017 and doing transformative HIV work with you, among other brilliant people, I noticed a tremendous division among the LGBTQ community. I even heard a dear friend saying that “straight people living with HIV have less rights than LGBTQ people living with HIV.” Can you speak to how these divisions in our own queer community affect people living with HIV/AIDS in Mexico?

Bastida: I think that Mexican society, as a diverse entity, is comprised of many opinions and thoughts. In fact, all people should have their own ideas and beliefs. However, it is necessary to agree on general points of view when we talk about common agendas and goals. In this case, to improve the lives of people living with HIV, their conditions and rights. At this time, we have not established a common agenda on HIV. There are so many movements, focused on different goals. For example, a special group for women, another for sex workers, another one for young people and many for LGBTQ persons. But these movements don’t work together and just partially share some goals.

Universal access to antiretrovirals is partial; discrimination is still part of their lives; more than 20 percent of new HIV infections are not detected; co-infections are not treated at all; and there are special criminal laws for people living with HIV.

Castro-Bojorquez: At HINAC 3 you were part of the Mexican delegation and represented the newly formed Red mexicana de organizaciones contra la criminalización del VIH (Mexican Network of Organizations Against the Criminalization of HIV). Why was it important for people here in the U.S. to learn about the HIV work done in Mexico and Latin America?

Bastida: Language represents a big barrier between Mexico and Latin America and the United States and Canada. Many times, it seems that the North and the South are totally different so, apparently, we cannot build common bonds in spite of the fact that we share many problems. One of them is HIV criminalization in our laws. The HIV Justice Network has documented that the U.S. is one of the countries where most persons have been prosecuted in the whole world. Mexico does not appear on that list, but 30 of the states that belong to the Mexican Republic have legal frameworks similar
to the American ones.

We could see during the training sessions that many delegates didn’t know that, or of the existence of a Mexican movement. In addition, they didn’t know that in Mexico the Supreme Court has ruled that laws which punish people living with HIV are not constitutional because they are discriminatory.

In the sessions, we explained how persons who belong to different NGOs [non-governmental organizations] and are from different cities and countries, such as you, could gather together and implement a strategy, at several levels, that could reach public and political spaces where decisions and changes can be made.

We shared our experience in the Veracruz case, a Mexican state that in 2015 changed its law to criminalize HIV. As a result of that, Grupo Multisectorial en VIH-SIDA del Estado de Veracruz [the Multisectorial Group in HIV-AIDS in the State of Veracruz] asked the National Human Rights Commission to declare the law an unconstitutional action because it affects the rights of people living with HIV. That action was submitted to the National Supreme Court and discussed in 2018, three years later. The result was a declaration that the law was invalid.

We think that this experience can help our brothers and sisters create their own interdisciplinary strategy and reach a law modernization in their state, and why not in the whole country?

Castro-Bojorquez: “Molecular Surveillance” was an important topic I first heard about at HINAC 3. What were some of the lessons you learned at the conference?

Bastida: One of the most important lessons I learned was that we need to keep on together, no matter the languages, nationalities, health condition, race, sexual orientation, gender identity or expression, to improve life conditions and guarantee human and civil rights of people living with HIV.

Molecular surveillance means that there is a collection of HIV data to support health systems in monitoring trends on new HIV infections, the use of antiretroviral therapies, and co-infections. Socially, molecular surveillance could mean that we can join together our experiences in modernizing laws and other issues that benefit directly people living with HIV into a database in order to apply them if it is needed or as a guide in making new prevention strategies.

Castro-Bojorquez: I am so grateful for the human rights work for and with people living with HIV in Mexico by people like you and our dear friend and colleague Patricia Ponce from Grupo Multi, and many others. Can you share the biggest issues affecting people living with HIV in Mexico? And also, how is it that HIV criminalization has been a topic that has resonated with the Mexican people?

Bastida: For many years, Patricia Ponce has been interested in HIV social research and in public incidence to help improve the political situation in Veracruz. Part of her work is making visible the needs of people living with HIV and the injustices against them. That is the reason Grupo Multisectorial questioned Mexican HIV criminalization laws.

During the last two years, our states proposed legislation that punish a possible HIV transmission. In Veracruz, it was presented as a solution to diminish rates of HIV in women. Fortunately, it was cancelled by the Supreme Court.

Another case occurred in Chihuahua, where a representative proposed a similar amendment. It was removed some days later.

In San Luis Potosí, the governor tried to punish HIV transmission, but the House of Representatives rejected it after some months.

In Quintana Roo, laws were amended in a negative manner.

After some protest from NGOs, some representatives agreed to modify legal texts, but their deadline is almost here and they have not done it yet.

These propositions are a result of huge ignorance about HIV and AIDS. Many people, including legislators and government officials, still think that HIV is synonymous with death and they have other prejudices as well. Therefore, discrimination against people living with HIV is a big challenge to defeat. Some figures, shown by the National Council to Prevent Discrimination, show that almost 40 percent of Mexican society would not agree to live with a person living with HIV.

That is the reason why I believe the biggest challenge in Mexico is to eradicate prejudices and discrimination, with sexual education in elementary schools, more informative campaigns, positive messages in media, training in medical and public services, focused strategies to prevent new infections, and normalized HIV testing.

SPIRITS RAISED: Castro-Bojorquez in front of an altar he created at HINAC 3, with friend and fellow activist Carrie Foote. 

Photo courtesy of Carrie Foote

Statements from the writers

Leonardo Bastida: For several years I have focused on the oral history of Mexican immigrants in the United States and the social networking of MexAmerican communities in borderlands. In addition, I have worked as a journalist at La Jornada newspaper following human rights, LGBTQ and gender issues, migration, and HIV. During the last two years I have been involved in a social movement against HIV criminalization in Mexico, after as an investigative journalist I learned that 44 people have been prosecuted because of possible HIV transmission. In not one case could it be demonstrated that the person was guilty. However, judges considered their attitudes and actions a felony. As a person interested in human and civil rights, I believe that no one should be prosecuted or discriminated against because of a health condition.

Marco Castro-Bojorquez: I consider my film work to be contracorriente, or countercultural. My philosophy is inspired by the efforts of the “Third Cinema,” coined by filmmakers and thinkers of the movement of the New Latin American Cinema of the ’70s, where the main purpose was to resist, mobilize, agitate, and promote social consciousness to counter the practices of the American film industry, mainly Hollywood. I advocate for the civil and human rights of LGBT people and people living with HIV/ AIDS, as a convener for Venas Abiertas (Open Veins), a network of Latinx immigrant people living with HIV/AIDS in the U.S., as a steering committee member of The U.S. People Living with HIV Caucus, and as a lead organizer with the coalition of Californians for HIV Criminalization Reform. See more about my filmwork at about.me/castro-bojorquez.