How badly did people with HIV get hit in the courts last year?

Project Perspectives

How badly did people with HIV get hit in the courts last year?

by Jennifer Middleton

When Congress passed the ADA in 1990, it looked like the start of an answer to discrimination against people with HIV. And an answer seemed critically important, not just for protecting people, but for stopping the spread of the epidemic. It seemed imperative that society at least take a stand against discrimination if it wanted to get people to come into the public health system, get tested and get counseled on how to take care of themselves and those they loved.

The seven years since the law took effect in '92 have been something of a rude awakening. As we have reported before, lower federal courts have been engaged in what at times looks like a campaign to cut the law back as much as they possibly can, frequently by reading its terms in a hypertechnical way. In 1998, the U.S. Supreme Court, in a good decision about people with HIV, took a much more common sense approach to interpreting the law. We had hoped that would start a trend, but if it will, the trend hasn't emerged so far. Here's an overview of developments in 1999.

In the Supreme Court

To hear the press tell it, after the Supreme Court decided a quartet of ADA cases in 1999, the ADA had nearly become a dead letter before it was even a decade old. Although the Court's decisions are a major setback for people with some disabilities, reports of the ADA's demise seem a bit premature. For people with HIV, the victory in 1998's Bragdon v. Abbott - that HIV is covered by the ADA, at least under some circumstances - remains solid. And this year, the Court decided a case that could help people with HIV who apply for disability benefits (more about that later).

Advocates for people with disabilities were rightly upset when the Court narrowed the definition of "disability" under the ADA in three cases. The cases all involved people with disabilities that can be "corrected." Two cases involved people with bad vision whose glasses brought their vision up to normal, and one involved an individual with high blood pressure controlled by drugs. In all these cases, the individuals were refused jobs because of their medical diagnosis, even though their conditions, because of treatment, did not interfere with their ability to do the jobs at all. The Court ruled that when a condition is more or less completely "corrected," it isn't a "disability" and so isn't covered by the ADA. The ACLU filed a friend of the court brief on the losing side.

This ruling sets up paradox: employers decide not to hire people because of their medical conditions even though the conditions are so well treated they don't affect the ability to work. But because the conditions are so well treated, they aren't "disabilities" any more, so the law won't protect people discriminated against because of them.

The paradox poses a tough question about just what the ADA is supposed to do. It has never protected people who are unable to do the job; Congress made that very clear in the text of the law itself. Now it doesn't protect people who can do the job if their conditions are pretty well corrected by drugs or devices. That leaves only those whose conditions are not completely corrected but can do the job anyway because the particular disability does not interfere. That's a pretty narrow reading of what was supposed to be a sweeping civil rights law for the disabled.

The Supreme Court left one possible opening for a broader view of the law in the future. The ADA also forbids discrimination against people who are treated as if they were disabled, even though they are not. That would seem a natural approach for people with "corrected" disabilities who get discriminated against because of them anyway. Although the Court rejected arguments based on that part of the ADA in these cases, it did so at least in part because of what it said it thought was the odd way the arguments were made in the case. And it hinted that it might take a different approach in another case.

Although the decisions were a major setback for people with some disabilities, it is hard to be very sure about how they will affect people with HIV. In Bragdon v. Abbott, the Supreme Court decided that a woman with HIV was disabled because the virus changes the way a person thinks about having children. That is not something that any amount of treatment can change. The question Bragdon left unanswered is whether people who are not interested in or capable of reproduction are protected.

We have been arguing that HIV is disabling because it affects peoples' lives completely - in everything from decisions about intimacy and sex to whether you can have ice in a coke. If the courts were to agree, the new decisions would not affect people with HIV much. Most of those effects of HIV are not correctable.

But if courts were to insist that HIV significantly limit the ability to work, for example, the corrective effects of drugs might become an issue. Although it may take a couple of years to sort this out, the early indications are that most courts will agree that HIV is comprehensively disabling, and that drug therapies won't prevent people with HIV from being protected by the ADA.

The good news from the Supreme Court was a decision which broke a logjam in the lower courts on an issue that affected many people with HIV. People who are fired because of HIV (or because of other conditions) often apply for S.S.I., especially because it brings Medicaid, which replaces lost job related health insurance. But to get S.S.I., you have to be unable to work. When they brought discrimination cases over being fired, people who had applied for Medicaid often had their cases thrown out of court. Lower courts reasoned that you cannot be both disabled enough to qualify for Medicaid, and nonetheless able enough to do the job you lost. The Supreme Court ruled that applying for Medicaid does not automatically prevent you from bringing a disability discrimination suit. Still, the decision does not do much about the underlying problem, linking health care not to lack of insurance but to inability to work.

Everywhere Else

People with HIV (and people with disabilities generally) continue to take a beating in lower courts. One of the most controversial questions surrounding the ADA is how it applies to insurance. So far, the courts have generally been reluctant to rule that it imposes any non-discrimination requirements on insurance at all, even though Congressional debates and reports on the ADA specifically mention insurance.

Most recently, in a case brought by Lambda, the federal Court of Appeals in Chicago ruled that it is legal under the ADA for a health insurance company to limit the coverage it will provide in its policies for any HIV-related care. As long as the health insurance company offers the same policy to everyone, the Court ruled, it is legal for that policy to limit coverage for AIDS care - even when the insurer has absolutely no reason to believe that AIDS care is more expensive to cover than other conditions.

As a friend of the court, we urged the Court that the ADA is part of a grand scheme of civil rights laws, and that it should be viewed as a part of that body of law and not in isolation. No one, at least not today, would seriously argue that if you sell sandwiches to anyone but refuse to let African-Americans eat in your shop that you've treated everyone equally. Equality under the ADA should be looked at the same way. The Court didn't buy it.

And in a very grim ruling, the federal Court of Appeals in Atlanta decided that when it comes to HIV, any conceivable risk that someone with HIV could transmit the virus - no matter how hypothetical the scenario - is enough risk to justify discrimination. The case arose in the Alabama prison system, where prisoners with HIV challenged the system's policy of segregating them away from all the other inmates and denying them access to all programs. Even during a supervised chapel service, the Court said, there is some hypothetical chance that one prisoner could transmit HIV to another. The Court didn't explain how it thought that might happen. A few weeks earlier, the federal appeals court in Richmond, Va. made a similar ruling, deciding that a karate school could refuse to let a boy with HIV take lessons.

If this standard were to apply to all disability discrimination cases - as both courts said it should - it might be impossible to win almost any HIV discrimination case. The prisoners were represented by the ACLU's National Prison Project. We have asked the U.S. Supreme Court to review the case.

So despite the Supreme Court's fine decision in Bragdon v. Abbott, we are far from out of the woods on HIV and the ADA. Bad decisions on either the risk standard or correctable disabilities could shut many, perhaps most people with HIV out of the law's protections. We should know how it is likely to turn out in a year or two.

Does the rise of religion mean the fall of LGBT equality?

by Michael Adams

Efforts to prevent government interference with individual religious choices and to give faith-based institutions a larger "share of the pie" of government-funded social services are increasingly occupying the center stage of political debate. But will the resurgence of public protection for religious freedom and the growing role of faith-based institutions in public life undermine recent advances by lesbians and gay men? The answer is not yet clear, but controversies in Congress around religious exemptions to civil rights laws and Presidential campaign rhetoric about transferring publicly-supported social services to religious institutions are casting ominous clouds.

The Project is challenging a Florida law that bars lesbians and gay men from adopting. Plantiff Steve Lofton and his partner Roger Croteau, who are foster dads of these three kids, seek to adopt them.

The Religious Liberty Protection Act (RLPA), which is currently pending before Congress, has a praiseworthy goal: to restore protections for religious freedom that have been weakened by the Rehnquist Supreme Court. Until 1990, strong constitutional protections were recognized for the free exercise of religion. If a law burdened an individual's ability to practice her faith, the government was required to prove that the law was justified by a compelling government interest. The ACLU believes that this is the appropriate standard, given the importance of religious freedom. However, in 1990, in a case called Employment Division v. Smith, the Supreme Court ruled that Native Americans could be penalized by a state agency for their traditional use of peyote in religious rituals. In reaching this conclusion, the Supreme Court weakened protection for religious freedom and declared that a law can limit an individual's right to free exercise of religion as long as the law is neutral and applies to everybody. Since Native Americans were penalized under an unemployment insurance law that denied benefits to anyone who lost work for criminal activity, and since the law wasn't intended to suppress religion, it didn't matter that the law prevented Native Americans from practicing their religion.

While civil libertarians and people of faith agree that this is a very bad result that needs to be fixed, the "fix" - RLPA - presents a big problem. As it is currently written, RLPA would allow people to claim that their religious beliefs exempt them from having to obey any law, including a civil rights law, unless the government can show that the law is needed to accomplish a compelling government goal. The chief sponsor of RLPA, Congressman Charles Canady, has publicly stated that the bill would "trump" laws intended to protect gays and lesbians from discrimination.

Using religion to gut civil rights laws is not a new tactic - it was very popular in the 50's - but it has been enjoying a big revival among religious conservatives these days. For example, in a growing number of lawsuits, conservative legal groups are arguing - sometimes successfully - that landlords can discriminate against unmarried couples if they believe these couples are "living in sin." It doesn't take a rocket scientist to see how quickly these arguments can be used to justify housing and employment discrimination against gays and lesbians. As currently written, RLPA would make matters worse by giving landlords and employers a "religious exemption" unless the courts find that the government has a "compelling interest" in eradicating sexual orientation discrimination - something many courts have refused to do when asked.

The ACLU believes that anti-discrimination laws should be obeyed by everybody who chooses to engage in commercial activities like real estate and employment (as op-posed to the religious work of churches and sectarian institutions, which must be protected from government interference). As a result, the ACLU has proposed that RLPA be amended so that the bill would not create an exemption to civil rights laws prohibiting housing and employment discrimination. Unless the amendment is added, the ACLU has vowed to do everything in its power to defeat the bill. We need both religious freedom and gay and lesbian equality: one can't be sacrificed for the other.

A similar controversy is brewing around efforts to increase the role of religious organizations in providing social services paid for by the government. While both Al Gore and George W. Bush have attempted to score political points in their Presidential campaigns by coming out forcefully in favor of such efforts, the issue has been percolating since the Reagan years. In the 1980's, the ACLU filed a lawsuit challenging a federally funded program designed to discourage teen sexual activity and encourage adoption rather than abortion. The problem was the law creating the program mandated that some of the funding in the program be given to religious organizations. The ACLU was concerned that funding religious organizations to provide counseling on sexuality that overlapped with the organizations' religious teachings violated church-state separation. While the Rehnquist Supreme Court disagreed, in an important concurring opinion Justice Sandra Day O'Connor recognized that paying religious organizations for this type of service was tricky business because "[t]here is a very real and important difference between running a soup kitchen or a hospital, and counseling pregnant teenagers on how to make the difficult decisions facing them."

David Weigand (left) fought for custody of his son Paul (center) and against a court order requiring his partner, Wayne Fields, to move out when Paul visits.

What Justice O'Connor was worried about, of course, is that religious organizations that receive government funding to provide counseling or other services that involve moral value judgments will inevitably be tempted to use these government-funded programs to spread their religious beliefs. This would violate the prohibition on government support for religion contained in the Constitution's Establishment Clause. Again, the potential dangers for gays and lesbians who need these government-funded services or the jobs created by them are clear. Louisville's Kentucky Baptist Home for Children (KBHC) illustrates the problem. The KBHC is the largest provider of state-funded foster care services in Kentucky. It also describes itself as "a Christian ministry" that is "committed to presenting a clear message of Christian values."

If you are a foster kid in need of group care in Kentucky, chances are you'll end up at the KBHC. And chances are you'll be gay or bi or questioning your sexuality, since studies show this is one of the most important reasons kids end up outside their homes and in need of foster care. But the KBHC has made it clear that "the homosexual lifestyle does not fit the beliefs of this agency." KBHC says that it is damaging to allow young people to see "the homosexual lifestyle as a viable alternative to heterosexuality" and that gays and lesbians can "leave homosexuality for good" through traditional psychology, support groups, and faith groups. LGBT kids aren't the only people hurt by KBHC's government-supported program. KBHC also refuses to employ gays and lesbians in their publicly-funded staff positions. And they're serious. Last year, they fired a lesbian staff counselor after learning about her sexual orientation because she marched in an AIDS walk with her partner.

Will groups like KBHC increasingly take over the provision of government services? And if they do, what will happen to gays and lesbians who need the services or want to provide them? The ACLU believes that the Establishment Clause prohibits government funding for religious proselytizing about sexual orientation or anything else. Society needs to be reminded not just about the importance of religious freedoms and traditions, but also about the wisdom of prohibiting government from supporting and paying for religion and the danger of putting sensitive social services in the hands of those who can't accept and respect gays and lesbians for who they are. We expect to do a lot of reminding over the next few years.

Is high school the answer to hate crimes?

by Jennifer Middleton and Matt Coles

We heard a lot in the press this year about hate crimes. The brutal murder of Matthew Shepard was the most notorious anti-gay crime, but there were many others. Billy Joe Gaither was tortured and burned in his small rural hometown in Alabama for being gay. Gary Matson and Winfield Scott were killed in their bed in Happy Valley, California because they were gay. And these are only the crimes that were widely reported: unknown numbers more have been assaulted, beaten, left to die in anti-gay attacks around the nation.

Many politicians and members of the lesbian and gay community responded by calling for new laws which would impose tougher sentences for crimes motivated by hate, so-called "hate crime" laws.

Hate crime laws are not a bad idea. Their critics to the contrary, being beaten in a random attack and being beaten because you are black or Asian or Jewish or gay is not the same thing to the victim. Victims of hate crimes are more depressed, lose more of their sense of safety, and have a harder time adjusting back to a normal life.

Perhaps more important, one of the major reasons why we have hate crimes is the widespread belief that society does not value some lives much, if at all. Perpetrators often think that the society in which they live really does not think there is much wrong with assaulting minorities, including gay people. A hate crime law is one way to begin reversing that perception.

But hate crime laws are not free from problems either. Too many are written in ways that allow people to be convicted because they belong to an organization even if the organization had nothing to do with the crime. Think that's an abstract problem? Tell that to the six men the federal government deported this year solely because they belonged to the Popular Front for the Liberation of Palestine.

There is another serious problem with hate crimes laws. Politicians use them for cover, as a justification for saying that the problem of hate crimes has been addressed. But if hate crimes laws are a decent start on dealing with the problem of hate violence, they are no more than a start. The message that society does not value the lives of lesbians and gay men much will not get undone until society says in a meaningful way that discrimination based on sexual orientation is wrong, and that lesbians, gay men, bisexuals and transgendered people are entitled to the same basic respect every citizen gets. We need comprehensive anti-discrimination laws and decent, fair treatment for our families before that message will be a part of the fabric of this society.

There may be no more important place to begin getting that message of respect out than in schools. For one thing, it is probably much harder to convince adults to change the values they have long held than it is to convince kids who are still in the process of formulating them.

Malachi Larrabee (left) speaks to a number of high school audiences on sexuality and harassment in schools as part of the ACLU of Northern California's "Making Schools Safe" campaign. Zac Moon volunteers for the ACLU-NC's student rights program.

Moreover, one of the purposes of school is to teach society's values. Simply leaving respect for gay people out of the curriculum would send the wrong message in itself. But in all too many schools, the problem is not just omission: schools are not a safe place for lesbian, gay, bisexual and transgendered students.

A study of Massachusetts high school students just published in the journal Pediatrics reported that more than 25% of gay teens had recently missed school because of fear for their safety. When compared to heterosexual students, they are four times as likely to be threatened with a weapon at school, four times as likely to be assaulted to the point that medical attention is needed. And school authorities themselves are part of the problem: another study showed that 53% of high school students report hearing homophobic slurs such as "faggot" from their teachers.

If schools are the most important place to teach values based on equality and respect for all, most schools, at least until very recently, want nothing so much as to avoid dealing with the problems of lesbian and gay students entirely.

The avoidance option is disappearing. Several high profile cases have ruled that schools have a responsibility to make their environments safe for all students, gay and straight alike. If they do not, the administrators may be liable for damages. The Supreme Court ruled this past year that schools can be liable if they let sexual harassment flourish unnoticed, even when the harassment comes from other students.

School-by-school litigation is not the answer. It takes far too long, and it is much too expensive. But a few cases can make school districts realize that failure to do something about abuse of lesbians, gay men, bisexuals and transgendered students can lead to protracted litigation with expensive outcomes. The next step is to help them take action.

At the start of the school year in 1999, the Project and GLSEN (the Gay, Lesbian, Straight Education Network) published a piece collecting the most often asked questions about school non-discrimination and harassment policies, and providing clear answers. Together we mailed it to every school district in America, with a letter from Kevin Jennings of GLSEN and Matt Coles of the Project telling the schools about the problems of gay students shown in national surveys, reminding them about the high profile cases, and offering help in adopting new policies.

The Project is in the process of adapting an innovative program, developed by the ACLU of Northern California, for other ACLU affiliates around the country. The program uses an ACLU lawyer, a lesbian, gay or bisexual student and a teacher to get across the message that schools can and must teach tolerance and respect, and then shows them how to do it.

And we'll keep at the litigation, on behalf of both students and teachers.

Obviously, the process of getting America's schools to teach respect will not be finished overnight. But it's worth being persistent, because in the long run, it is likely to be the most effective answer to hate.

The family paradox
Moving forward in the court of public opinion while dawdling at the courthouse

by Leslie Cooper

In April 1999, by a land-slide vote, the New Hampshire state legislature repealed the state law that banned adoption by lesbians and gay men. The repeal was endorsed by both Democrats and Republicans, who spoke passionately in support of lesbian and gay parenting. Just two months earlier, the Mississippi Supreme Court upheld a lower court decision that a child was better off living with his mother in a home plagued by domestic violence than in the stable, loving environment provided by his father, simply because his father is gay.

Steven Sands and Samuel Stricklin are challenging a state-wide anti-gay policy in Arkansas that prevents gays and lesbians - and any heterosexuals who live with "homosexuals" - from becoming foster parents.

These are two examples of what has become a significant trend in the effort to secure equal rights for lesbian and gay parents: a marked advance in the court of public opinion, while, at least in some parts of the country, families are being devastated at the courthouse.

Lesbian and gay families are currently at the center of the ferment in public opinion on lesbian and gay equality. Lesbians and gay men are forming families and increasingly these families include children. More important, those families are more and more becoming a recognized part of the cultural landscape in America. This is the ultimate threat in the eyes of the members of the religious right who seek to demonize us and paint us as the "other."

Historically, whenever our efforts to achieve equality have involved children, we have been the most vulnerable. The old myths of lesbians and gay men as sexual predators of children instilled fear and distrust that are difficult to shake, despite the mounds of evidence to the contrary. It has been a common tactic of our opponents on the right to target this Achilles heel. For example, in 1977, the campaign against Miami's ordinance against sexual orientation discrimination led by spokesperson Anita Bryant, marched behind the loaded slogan "Save our Children."

In the late 90's, the religious right, hoping once again to capitalize on people's fears about children and lesbians and gay men, focused its efforts on a coordinated campaign to push state legislation prohibiting lesbians and gay men from adopting children and/or serving as foster parents. In 1999, anti-gay adoption/fostering bills were introduced in state legislatures and in the U.S. Congress for the District of Columbia. The bills were given serious attention in Alabama, Arkansas, Indiana, Michigan, Texas, and in Congress. In addition, in Arkansas a state agency enacted a regulation disqualifying lesbians and gay men and those who reside with them from being foster parents, and a Utah state agency adopted, after two tries, a regulation to prohibit people from adopting children if they live with an unrelated adult.

The campaigns for these laws were aggressively fought, causing serious concern among the lesbian and gay community. The ACLU and community organizations in these states organized to provide accurate information about lesbian and gay parents to the state legislatures and agencies, and to the public. We also geared up for what we anticipated would be a significant wave of litigation to challenge resulting laws and regulations.

However, at the end of the day, the attack was more a failure than a success for our opponents. The only casualties were the administration regulations in Arkansas and Utah. On top of the widespread defeat of the new bills, New Hampshire repealed its discriminatory adoption and foster care law, leaving Florida as the last remaining state to have a law banning adoption by lesbians and gay men. This spectacular legislative success at least partly reflects the public's changing attitudes about lesbian and gay parents, and its rejection of the rhetoric of fear offered by the religious right. The Arkansas Democrat-Gazette, the state's leading daily newspaper, commented on this issue in an editorial entitled "Don't let fear win: Good parents can be gay." In New Hampshire, a self-described "reactionary" Republican state representative spoke out in favor of repeal of the state's anti-gay adoption and foster care law, saying that he knows gay and lesbian couples whom he would trust to raise his child. On the first round defeat of the proposed extension of the Utah regulation to foster care, a Salt Lake Tribune editorial (a bit prematurely, unfortunately) decl