Regional Protection against HIV-Based Discrimination in the Armed Forces
The decision originated in separate employer decisions to discharge from the Mexican Army two HIV-positive servicemen who had tested for the virus in standard army-run medical examinations. In the first case, J.S.C.H. had been in the army as a driver for 19 years. The second case involved M.G.S., an infantry corporal with twelve years’ service. J.S.C.H. challenged his discharge notice in 1998 and undertook three unsuccessful amparo applications, which ended in October 2003 with a ruling that the matter was fully concluded. For M.G.S., proceedings commenced following notification of official discharge in October 2001; his amparo application was dismissed on appeal in September 2003.
The Inter-American Commission on Human Rights (IACHR) received the two petitions in April 2004, gave all sides time limits under which to produce pleadings, and joined the two cases in October 2008. The servicemen claimed that Mexico had violated the American Convention on Human Rights (ACHR) Articles 2, 5(1), 8(1), 11, and 24 and the general obligations under Article 1(1), which each cover discrimination on the basis of “any other social condition,” their right to privacy, and their right to a fair trial and judicial protection. They claimed loss of army salaries, loss of a military pension, non-provision of medical care and drugs relevant to their HIV status, and related losses to their families.
The domestic legislation relied on for discharge established that being rendered unfit through acts outside the line of duty was cause for retirement, and specified the diseases that qualified as grounds for unfitness: “susceptibility to recurring infections attributable to untreatable conditions of cellular or human immunodeficiency of the organism.” The petitioners claimed that discharging persons with HIV from the armed forces arose from an improper belief that HIV was untreatable. They claimed that the law did not meet the tests of proportionality or necessity because their presence did not jeopardize anyone else’s physical integrity and health and their condition did not automatically impair their professional performance. With due medical care, precautions, and information, the petitioners asserted, HIV is not problematic, nor are the affected person’s abilities automatically diminished.
The state argued that clear HIV examinations (the Elisa test) proved that the two servicemen were unfit for duties in the army; the retirement procedures foreseen in the domestic law were appropriate because their lack of fitness had been acquired outside the performance of their duties; that military staff had to be prepared to adequately perform their mission including intense physical exertion, which their HIV-status did not allow; their right to health was being guaranteed in that they had access to military and non-military medical establishments and treatments; and that all judicial guarantees had been ensured throughout both discharge proceedings.
The IACHR held that Mexico had violated ACHR Articles 2, 8(1), 11, and 24 in combination with Article 1(1).
Article 22(IV) of the 1976 Mexican Armed Forces Social Security Law (ISSFAM) established that being rendered unfit through acts outside the line of duty was a cause for retirement. In both cases, the army authorities read it in conjunction with Paragraph 117 of the ISSFAM appendix that specified HIV as a ground for unfitness for duty. The 1976 ISSFAM was repealed and replaced on 9 July 2003, but the new Law of the Social Security Institute for the Armed Forces reiterated the provisions permitting discharge for HIV infection.1
It was brought to the attention of the IACHR that in February and March 2007 the Mexican Supreme Court had decided a number of similar cases brought by other people serving in the Mexican Armed Forces. The Court decided that being HIV positive did not imply incapacity to serve and therefore it was incumbent on the military authorities to determine, in each case, whether the extent to which a staff member’s health was affected made it impossible for him or her to remain in active service. The Court held that discrimination was practiced in Mexico under the legislation of 1976 and of 2003, so much so that the provisions of the new Law were declared unconstitutional.2
The IACHR examined the non-discrimination Articles of the ACHR, and relied on approaches used by the UN Human Rights Committee (UNHRC), the Committee on the Elimination of Racial Discrimination (CERD), and the Committee on the Elimination of Discrimination Against Women (CEDAW) to note that not all distinctions amount to discrimination, nor are they a violation of the ACHR. Its approach to evaluating whether a distinction was reasonable and objective was to use a case-by-case basis with a staggered test of checking against four elements: the legitimacy of the measure, its suitability, the existence of less restrictive alternative measures, and proportionality.
The IACHR then examined the wording of prohibited grounds in the Convention. It also thoroughly analysed the approach that the UN Committee on Economic, Social and Cultural Rights (CESCR) had used in applying the banned ground of “other status” in the International Covenant on Economic, Social and Cultural Rights (ICESCR), to the effect that a flexible approach was needed to capture other forms of differential treatment that cannot be reasonably and objectively justified and are comparable with the specific grounds listed in the ICESCR. It also referred to the same approach being used by the UN Committee on the Rights of the Child (CRC) and the European Court of Human Rights. It noted international declarations on the need to eliminate HIV-based discrimination—such as the 2001 United Nations Declaration of Commitment on HIV/AIDS—and similar American regional texts, as well as comparative law, in which a series of decisions have banned discrimination based on health, particularly HIV.
The IACHR then held that the ACHR provision banning discrimination on “any other social condition” could include HIV status. Because the petitions concerned measures taken solely because the persons were HIV positive, the IACHR had to examine whether the distinctions, restrictions, and exclusions had been justified as reasonable and proportional. It found that although the goal of ensuring a good health policy for members of the armed forces was legitimate, the actual measures adopted to attain that goal did not match the obligations of non-discrimination in the ACHR; the discharge did not necessarily meet the goal and at law unduly restricted the servicemen’s human rights.
The IACHR stated that it was well known that HIV is susceptible to medical treatment and relied on World Health Organization (WHO) authority that antiretroviral drugs fight the disease so that persons living with HIV who receive adequate medical treatment can go about their work in the same conditions as a person who does not have the virus. The IACHR referred to the 1988 WHO resolution urging member states to protect the human rights of HIV-positive people and people with AIDS, to avoid all discriminatory action against and stigmatization of them in the provision of services and employment, and to promote the availability of confidential counselling and other support services. It likewise referred to the International Labour Organization’s (ILO) HIV Recommendation (No. 200) of 2010, which states that real or perceived HIV status should not be a ground of discrimination preventing recruitment or continued employment, or the cause for termination of employment, or the pursuit of equal opportunities consistent with the provisions of the ILO Discrimination (Employment and Occupation) Convention (No. 111) of 1958. Reference was also made to ILO’s Termination of Employment Convention (No. 158) of 1982, which bans dismissal simply for health-related absences. The crux of IACHR’s decision lies in the international position that no health-related justification exists for placing restrictions on the employment of persons infected with HIV.
The IACHR noted that the judge deciding one of the amparo actions brought by the petitioners had ruled that the expert evidence in line with the international position did not convince him, so he had rejected the appeal. It criticized that decision because, rather than evaluating the individual capacity of the serviceman to perform the duties assigned to him at work, the judge concluded that the petitioner should be retired automatically from the armed forces solely because he had HIV. In IACHR’s opinion, that interpretation “is a product of the stereotypes and stigmas surrounding that disease.”
On 31 October 2011, the IACHR issued Merits Report No. 139/11, recommending that the victims receive comprehensive health services as they may require, full reparation both material and moral including compensation and reinstatement in the armed forces if they so desire, as well as amendment of the ISSFAM law to meet the obligations of the ACHR in particular so that it is clear that testing positive for HIV does not automatically restrict the ability to perform military functions.
Relevance of the Case
This case is an important example of using international labour law to bolster the reasoning of a regional judicial body in the context of a regional human rights text. It is praiseworthy for having relied on ILO Recommendation No. 200— being the only international instrument explicitly addressing HIV-based discrimination—and other conventions concerning employment discrimination based on health or other grounds (Nos. 111 and 158) to underscore its finding that HIV status is a prohibited ground although the regional provisions do not include those words. Likewise, the IACHR used the jurisprudence of UN treaty bodies—such as UNHRC, CESCR, CRC, CERD, and CEDAW—to explain its interpretation of discrimination in the context of the ACHR. Clearly, the IACHR was persuaded by the decisions and practice of other regional human rights jurisdictions, such as the European Court of Human Rights, alongside the Inter- American Court when it comes to the objectiveness and proportionality tests.
What is particularly noteworthy in this Mexican case is the use of comparative law. The decision mentions the reasoning in three national court decisions that dealt with employment discrimination on the basis of HIV: the well-known South Africa decisions Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre and Jacques Charl Hoffmann v South African Airways, and the Indian case Mx Of Bombay Indian Inhabitant v M/S. Zy and Another. The impor¬tant earlier decision of the Australian High Court in X v Commonwealth of Australia should have been referenced as well, in that it dealt with directly analogous facts of discharge of a serving member of the army on his testing positive for HIV. This omission might be due to the fact that the dissent marked out the international and regional law pertaining at the time rather than the majority judgement that the discharge was not discriminatory. The Australian Court insisted that before the employer takes a measure, consideration must be given to the inherent requirements of the particular job in question. It stated that the lower judicial decision should have taken into consideration “the places and circumstances in which the tasks of a soldier are to be performed.” This test might have been persuasive, given that one of the Mexican petitioners was a military driver whose mission might never have exposed him to combat duty.
Practical Implications of Decision
The Mexican case highlights how well entrenched the international labour law banning discrimination on the basis of real or perceived HIV status is. It is being used to right wrongs. This regional body decision should be relied on in other regional cases and in national ones as both a clear expression of the discriminatory nature of such laws and practices and as persuasive authority to bolster domestic legislation that might be lacking or exist but not be explicit about HIV discrimination or medical confidentiality. Judgements such as this can fill such gaps, as well as push social justice further. I say “push human rights further” because of the important final recommendations and Mexico’s follow-up. The 2011 Merits Report No. 139/11 went beyond a classical compensation order (reparation for material and moral damage, access to medical treatment and care) to insist that the discharged servicemen be reinstated if they so wished. This was done. It also insisted that the main law be changed to remove the discriminatory provisions. This was done.
That the full implementation of the IACHR recommendations took some time resulted in the parties’ signing an agreement that expanded the impact of the decision even further. The parties agreed to a solemn ceremony to acknowledge the state’s responsibility as a satisfaction measure, an act that goes to the heart of demonstrating remorse for allowing discrimination in the past (not unlike truth and reconciliation ceremonies in other parts of the world). This was done. Last, the agreement required the implementation of training programs within the armed forces to prevent discrimination against persons with HIV and AIDS. This, like the other measures, was done.
Decisions such as this are to be applauded for using international labour law and for underscoring that discrimination based on real or perceived HIV status is not tolerated in the world of work. It is to be hoped that other jurisdictions will use the J.S.C.H. and M.G.S. v Mexico case not only as the direct statement of HIV-based discrimination under the ACHR, but also as persuasive jurisprudence when domestic legislation lacks a provision outlawing employment discrimination on this ground or exists, or is weak or vague and requires clarification and substantiation. The interesting mix of remedies ordered and agreed upon by the parties themselves are worth replicating in future cases.
One last observation bears on timeliness. What reasons could there be beyond respecting internal procedures and deadlines and parties’ applications and agreements that seventeen years elapsed from the first discharge notice and challenges in 1998, until October 2015, when this judgment was handed down?
This summary was prepared by Jane Aeberhard-Hodges for International Labor Rights Case Law Digest, Vol 2, Issue 2, May 2016 (The Hague Institute for Global Justice, Netherlands) and reprinted with permission.
- Article 226 of the Law reads as follows: “To determine the categories and degrees of accidents and diseases that are cause for discharge for unfitness, the following Tables shall apply: Category Two …Testing positive for human immunodeficiency virus antibodies.” ↩
- As a result of that decision, on 20 November 2008, Article 226 of the new law was amended to introduce reference to the HIV status leaving the person in a terminal stage for more than six months, as well as elements of proportional fitness in the new clauses “List of ailments that cause dysfunctionality of less than 20% shall merit a change of Branch or Service at the request of a Medical Board” and “(Discharge may be ordered upon) Testing positive for HIV antibodies, confirmed with supplementary tests, in cases in which functional military activity is limited due to the need for medical supervision and treatment.” ↩