28/02/2022 | Writer: Kerem Dikmen

Discriminatory actions of employers and particularly the corporations should be subjected to financial sanctions; basic rules that should be followed by the employers should be presented and generalized.

LGBTI+s Living with HIV and Right to Privacy in Working Life Kaos GL - News Portal for LGBTI+

According to the official records, “sum of employed and unemployed[1] within the population of age of 15 and above is described as the labor force. According to the latest published basic labor force indicators, as of March 2021, population of age of 15 and above is 63.421.000; while 27.907.000 of them are employed, 4.193.000 individuals re unemployed.[2]

 

Unions and researchers who are experts on the subject believe that these statistics do not reflect the truth and the difference between the data of the unions regarding employment and labor force and the official data is often emphasized.[3] Furthermore, even though they are interpreted as lower limits, the number that comes up with the official statistics constitute a meaningful whole.

 

According to the statistics published by Ministry of Health as the official institution in Turkey however, the population living with HIV as of January 31st 2021 is 26.447 people.[4] Number of employable people among this number is on the other hand, 26.211, when the above 15 years of age limit is based on.

 

Again as a reminder, official statistics regarding HIV are also determined over the facts that were notified after verification test is determined as positive and whether or not this reflects the real numbers is arguable. Because positive associations think that these data do not reflect the truth. Hence, according to the statement[5] made by Positive Solidarity in 2019 on the occasion of December 1st, “presumably 49% of the people living with HIV in our country are not aware that they live with HIV”. “Report of Human Rights of Lesbians, Gays, Bisexuals, Trans, Intersexes and Pluses Living with HIV[6] published by Kaos GL and May 17 Associations on the other hand, summarized the situation as “when number of people who are not yet diagnosed is also considered, the total is two times more than the number, in other words, it is thought that approximately 50.000 people live with HIV in Turkey”.

 

However, even in this situation, when two statistics are reviewed together, the truth that arises is: According to the official data, as of today, vast majority of the persons living with HIV in Turkey (99,11%) is people over 15, in other words, employable population. Accepting the retirement age as 65 and when we deduct these people living with HIV over 65 from this number, the number we obtain is 25.549, which makes us face the fact that 96,6% of individuals living with HIV is at the age of working.

 

Meanwhile, it is necessary to open a parenthesis in terms of the title of the article. In real life and even on rights advocacy basis, from time to time, LGBTI’s and plus identities are mentioned as if they are one object and who these letters and plus identities represent is often forgotten. It can also be mentioned as LGBT individual or LGBTI+ individual as if cis-heterosexual persons are mentioned as woman individual, man individual. Whereas, LGBTI+ term which blends gender identity, sexual orientation, sex characteristics and gender expression, which also includes other gender identities by putting + symbol at the end, has to be separated when a solid right request is mentioned. In Turkey, there are quantitative differences between the access to employment of openly trans and trans in the closet, woman homosexuals and man homosexuals, cisgender women and trans women, even between trans women and trans men. Therefore, when we say LGBTI+ living with HIV, the fact that different identities might be subjected to more than one discrimination due to their identities should also be considered.

 

Within this general table, one finding of the “Situations of Private Sector Employee LGBTI+’s”[7] research made by Kaos GL every year and of which the most recent results were published in 2020 regarding the fact that ratio of the “participants who stated that they were completely open in their workplaces in terms of their sexual orientations and intersex situations” is14,8% should also be considered.

 

Thus, taking a closer look at the issues of the LGBTI+’s living with HIV over the report of Kaos GL and May 17 and revealing its relation with the right to privacy is essential. Because one of the key findings of the report is the fact that people who live with HIV are frequently subjected to discrimination in their social lives by their parents, partners, friends or colleagues.[8] Hence, when we look at the part of the reports based on the facts and published periodically by Positive Living Association that covers 2020 year, it is seen that discrimination in relation to working life corresponds to a significant ratio.[9] When we look at the stories in these reports however, it is understood that the HIV tests made prior to starting or during the job based on informed consent or with the thought that consent is not required at all and workplace doctors or doctors employed by insurance companies being able to reach health information of the person are the two important problem fields.

 

Right to privacy is a fundamental human right protected on so many national and international levels. In article 17 of International Covenant on Civil and Political Rights, article 8 of Human Rights European Convention, article 20 of the Constitution of the Republic of Turkey, requesting respect to private life as a framework is a sub right category protected with names like private life and right of privacy. Thus, Constitutional Court also reviews the right to privacy under this category. It is not possible to make an unchangeable definition of right to privacy because privacy or private life field is a dynamic notion that has the tendency to expand according to our current conditions. Court of Human Rights particularly avoiding from making a permanent definition regarding the term private life and examining the private life in the context of solid reference to the Covenant being a living document is due to its dynamic, moving nature.

 

With the “Everyone has the right to request protection of personal data about themselves” provision in article 20, paragraph 3 of the Constitution, a top level security is provided regarding the personal data which is a part of privacy. The article continues with the “Basis and procedures regarding protection of personal data are arranged with law” provision. This expression that took place in the Constitution in 2010 is corresponded with the name KVKK (The Law on the Protection of Personal Data) in 2016. In here, a general protection framework is defined by describing personal data as “every kind of information regarding natural person whose identity is definite or determinable” with its general meaning and more top level protection framework is defined by describing the information of the person regarding their health specifically.

 

Based on this, HIV status of a person should be described as an information with special attribute that takes place within the privacy field of the person. The state is not only obliged to not declare the HIV status of the person, but also prevent the access of third parties to such information. We should immediately remark that personal data with such characteristic, in other words, data “regarding health and sexual life”, can be processed “by the persons who are obliged to keep secrets or authorized institutions and establishments with the purpose of protection of public health, preventive medicine, medical diagnosis, execution of treatment and care services, planning and executing health services and finance without seeking open consent” (KVKK 6/3)[10]. However, there are limitations to this authority. In terms of working life, whether or not this authority was exceeded and whether or not the state fulfilled their obligation to prevent the HIV status of the persons from being learned by the third parties constitute the fundamental point.

 

Generally there are two appearances of learning the HIV status of the person during the employment stage without their consent. One of them is making the medical screening which also includes HIV status obligatory for employment. If we leave aside the situation of employer not objecting to not making this test or situation of not realizing that test cannot be made, the person generally has two options in this situation. They will either back down from applying the job and employment relation will never be established or accept the mandatory test and will be forced to share their status with the employer. The other appearance on the other hand is medical examinations that are made obligatory during the job or the workplace doctor or the doctor employed by the company that issues insurance policies learning the HIV status of the person as a result of accessing the health data of the person.

 

At this point, it is needed to look at the standards presented in document of International Labour Organization named Code of Practice on HIV/AIDS and the World of Work. HIV testing should not be required at the time of recruitment or as a condition of continued employment. Any routine medical testing, such as testing for fitness carried out prior to the commencement of employment or on a regular basis for workers, should not include mandatory HIV testing.[12] In other words, HIV status plays no determinative role neither in establishing employment relation nor in continuation of employment relation.

 

Submission of HIV negative test result from the person or test submission including HIV examination as well at the time of employment is a clear violation of right.[13] In this way, employer and personnel who have access to documents find out and know the HIV status of the person. HIV examination is mandatory for sex work, acceptance to piloting, acceptance to law enforcement agency as police officer or watcher, acceptance to military rules. Although it is stated in civil society that information to colleagues or employer regarding infection with the exception of sub surface skin works and works with high injury risks should not be given[14], taking every kind of measure regarding possible occupational accidents or after occupational accidents is the responsibility of the employer. So, an information that is not mandatory to share during the continuation of the work not being mandatory at the recruitment stage is a rational result of this situation.

 

On the other hand, the obligation that exists for sex workers requires a rights-oriented discussion. Because even if sexual intercourse is presumed in the nature of sex work, unprotected sexual intercourse is not the only way to transmit HIV; on the other hand, undetectable HIV cannot be transmitted.[15] Besides, protected sexual intercourse almost entirely removes the HIV transmitting possibility. Therefore, the “protected area” expectation of a person who has sexual intercourse with a sex worker should not be provided by forcing the sex worker to share their status with their employer but should be provided by ensuring protected sexual intercourse and the opportunity for this should also be ensured.

 

In the occupations except from the ones listed in above seen paragraph, HIV examination is an absolute violation of right. Because it has no basis in terms of rules either.

 

The limitation of the limitable ones of the fundamental rights (for example private life) is subject to certain conditions.[16] If right to privacy of the person, in other words, privacy of HIV status in terms of our subject, will no longer be a private information, it should have a legal basis and a legitimate purpose and it has to be realized with a means proportional with the purpose. In other words, even though status of the person being learned by the employer has basis in terms of legislation, if there is no legitimate reason that necessitates learning this information, at this point, practices aimed for the employer to learn this information are violations of right.

 

For the people living with HIV, their HIV status being found out during the continuation of work relation without their consent appears as another problem topic. Part of it is coincidental. But most of it is a result of direct or indirect violation of right. Inherently violation of right to request showing respect to private life with different ways like access to personal correspondence (for example from mail server), access to treatment processes may also cause HIV status not being private anymore.

 

Another area of problem is constituted by the MEDULA system that is also used by workplace doctors and under the execution of Ministry of Labor and Social Security. The obligation of the workplace doctors to keep the information of the employee in their health file confidential is an obligation arising from the legislation[17] that has sanction in case of its violation. Workplace doctor cannot make a research aimed at the HIV status of an employee. For the workplace doctor to even receive information about the HIV status of a person by accessing the medical background for instance accessing the prescription background and looking at the medicines that person uses in a system based on consent by exceeding the scope of the consent, sharing this information with third parties or the employer is a crime. As it can be understood from this example as well, MEDULA subject should be dwelled on. MEDULA is basically a software developed by Ministry of Labor and Social Security. This software provides health service providers including private insurance companies access to personal health data in electronic environment in certain situations. According to current application, in access to health data using MEDULA records, accessibility rule, limited access is an exception. In other words, unless the right owner makes a special application to prevent from accessing these records, health providers can easily access to this data background. Though, a right-oriented approach is an approach where limited access is rule and full access is based on consent.[18] E-pulse, the system developed by Ministry is Health and in which personal health data is stored also creates similar issues.

 

When we return to the employment stage from this parenthesis, we briefly mentioned above why sharing status is violation of right. Then, if a person living with HIV backs down from job application because they did not want to share their status or did not want to face the sharing possibility, would it be violation of right? Here, employer does not refuse the request of the employee to be employed; and state is not existent at any stage of this relation. Then, how would deeming the employer or the state as the responsible for violation of right because the person withdrawn their job application be true in terms of our subject? At first glance, it can truly be seen that it is not a violation since the person living with HIV backs down from the job application process voluntarily and it is their own consideration. However, this is a misleading perspective. The things that cause violations of rights are most of the time procedures regarding fundamental rights and as a result, regulatory securities not being generated or policy or law not being generated by the state. Ministry of Labor and Social Security state their mission as “Increase the contribution of growth to employment, increase the employment and participation to labor force by means of regulating and inspecting working life, solving the structural issues of labor force market” and their vision as “Creating a reformist working life that is based on effort and right on the basis of social law state, in which working harmonization is ensured by operating the dialogue mechanisms efficiently, that is compatible with international norms and standards”.[19] At this point, following questions should be asked: Has the Ministry developed a legislation aimed at preventing employers from requesting HIV tests despite it does not arise from a valid reason and it is not an obligation with a legal basis? Do they fulfil their inspection duties in order to determine this? If there are employers who apply these procedures, does the Ministry actualize the sanction mechanisms against them? For employers to continue the test practices in an execution practice where right-oriented answers cannot be given to these questions will mean that the state which has positive responsibilities regarding the right to privacy of the people does not fulfill this responsibility and is the responsible for the violation of the right.

 

The important decision of (T.A.A. Application, B. No: 2014/19081, 1/2/2017) Constitutional Court of the Republic of Turkey regarding the working lives of people who live with HIV can be reached through the internet site of the Court.[20] The Court qualified dismissal of a worker due to learning the worker was HIV positive during the continuation of the job and dismissing due to this reason as violation of right. When the details of the application is reviewed, it is seen that the applicant started to work in a company operating in manufacturing plastic pipes and profiles as profile manufacturing operator on 14/2/2005, diagnosed with HIV in December 2006, the applicant was treated by the workplace doctor and on 17/9/2008, an application was made to Ege University Medical Faculty and it is requested that if exists, labor force loss of the applicant, his disability ratio in accordance with existed legal regulations to be assessed and/or to inform that about whether or not he has any medical or legal situation that would prevent him from working heavy, dangerous works. Even though it was stated that these correspondences were made with the consent of the applicant during these procedures, the reason why workplace doctor should know the status of the applicant could not be exhibited. Therefore, especially in crowded workplaces where the workplace doctor is directly at the workplace, it is seen that different and extra measures should be taken in terms of right to privacy.

 

In their decision, Constitutional Court determined that “In Supreme Court and Labor Court, it is focused on the issue that the decease is “transmissible” and accepted that only solution to avoid this risk would be removing the applicant from the workplace. However, in these decisions, whether or not the employer had the responsibility to evaluate the possibilities of assigning the applicant to another position that would not pose risk to other employees was not considered” (§ 99). It is clear that this approach is a right-oriented approach and the solution it suggested pursued a legitimate balance. However, when the process is looked as a whole specific to the application, person living with HIV is suggested to work at a different position by the employer solely with the claim that carpet knife is used during the execution of the work does not fully match the equality approach which is most important means to prevent discrimination. On the other hand, the facts that HIV has no possibility to infect in social environment; furthermore, as it is explained above, that B = B rule is accepted as a scientific data, in other words, in case HIV level of the person whose status is positive is pulled to the undetectable level with the usage of antiviral treatment, HIV is not transmitted should be made more visible and known with court decisions with the attribute of case law as well.

 

The developments in medicine discipline since the emergence of HIV removed the “legitimate purpose” fact, which is set forth as a basis in limitations of rights, from the basis of states that the states used to take shelter in order to limit the rights of people living with HIV. The stage that the treatment possibilities brought the world to removed HIV from being a health issue.

 

From time to time, the manufactured homophobic/transphobic hate speech seeks its motivation the relation it has established between HIV and “homosexuality”. The same claim is presented as the reason of HIV phobia as well. However, when it is considered together with its historical background, the fact that stigmatization and discrimination towards people living with HIV are fed and strengthened with homophobia and transphobia as if HIV is a status related to the sexual orientation or gender identity lays new responsibilities to the states particularly in the field of positive responsibility.

 

Fight against stigmatization and violations of rights caused by that should progress together with a public policy; especially the problems experienced by people living with HIV in working life should be prevented with a holistic right policy that will not only cover the violations during the continuation of working life but will also cover the violations in the periods prior to starting of the employment process and with a legislation tied to this that will be encoded at parliamentary level.

 

Discriminatory actions of employers and particularly the corporations should be subjected to financial sanctions; basic rules that should be followed by the employers should be presented and generalized.

Translation: Vahap Karakuş

*This article was produced with the financial support of the European Union. Its contents are the sole responsibility of Kaos GL Association and do not necessarily reflect the views of the European Union.

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Tags: human rights
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