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15 Presidential Steps for HIV Rights

By Bebe Anderson, HIV Project Director

December 4, 2008

What can a new administration in Washington, D.C., mean for people living with HIV in the United States? Specifically, what can -- and should -- a new administration do on the critical civil rights issues facing people living with HIV? Plenty, actually, and some of it very quickly. Lambda Legal has taken a leading role in identifying those actions and providing the guidance needed for those actions to be taken. Working collaboratively with other HIV legal groups, we have identified 15 steps -- some requiring little more than a few strokes of the Executive Pen -- that President-elect Obama and his administration should take in their first 100 days to end government support and accommodation of HIV-related stigma and discrimination.

People living with HIV in the United States continue to face difficult challenges and some of those are caused or exacerbated by federal policies. The worst kind of discrimination against people with HIV is government-sponsored discrimination. At the very least, we should expect our government officials -- federal, state and local -- to reject policies that explicitly exclude people living with HIV or that are interpreted in a way that marginalizes them. Government discrimination, such as the U.S. military's exclusion of enlistees with HIV and many states' exclusion of HIV-positive applicants for trade schools and licensing, reinforces stigma by putting the "official" seal of approval on unsound treatment of those with HIV.

In anticipation of a chance for fresh action by the federal government, Lambda Legal and the Center for HIV Law and Policy spearheaded a working group that developed a comprehensive list of HIV civil rights issues we would like to see addressed by the new administration. The members of the civil rights working group drew heavily from our experiences in representing people with HIV in court and advocating on their behalf before government agencies. The issues we identified reflected the many ways in which federal government policies touch the lives of our clients -- especially in the areas of employment, health care access, immigration, and federal incarceration and detention. The resulting document -- "Critical Civil Rights Issues for People Living With HIV/AIDS in the United States: A To-Do List for the New U.S. Administration's First 100 Days" -- identifies actions that the executive branch should take, along with a brief explanation of why such actions are needed.

Making the case for equality in the workplace has always been a priority for Lambda Legal and we have worked hard through litigation and advocacy efforts to protect workers with HIV from discrimination. We achieved an important advocacy victory this year when the ADA Amendments Act, which we actively supported, was signed into law on September 25. When the Act goes into in effect on January 1, 2009, it will restore some of the ADA's protective objectives, making it easier to challenge adverse employment actions taken because an employee or job applicant has HIV. New implementing regulations from the Equal Employment Opportunity Commission, the U.S. Attorney General, and the Department of Transportation are needed to achieve the remedial purposes of the Act. The transition document calls on the new administration to ensure that those regulations are issued promptly.

Our working group of litigators was well aware of other areas in which action by the federal executive branch could help end employment discrimination against people with HIV. Although Lambda Legal achieved an important victory this year when the U.S. Department of State dropped its blanket ban on hiring Foreign Service Officer candidates living with HIV, individuals with HIV are still being excluded from some federal agency programs and employment solely on the basis of their HIV status. In particular, the military continues to impose a number of improper limitations. We call on the new administration to issue immediately an executive order to ensure that all federal agencies are complying with the federal Rehabilitation Act. In particular, the executive order should ensure that HIV is not used as a basis for medically-unwarranted restrictions on employees and applicants and that, as required by law, individual assessments be used to determine whether an individual with HIV can perform the functions of the position or activity (with or without reasonable accommodation).

The executive branch should also take immediate action on a matter of tremendous importance for HIV prevention: needle exchange and syringe access programs. The efficacy of such programs is undisputed by federal agencies and the medical and scientific communities. Yet Congress has continued to ban the use of federal HIV prevention funds for any type of needle exchange or syringe access programs. Because the federal government is the primary source of funding for HIV prevention in the United States, the ban on federal funding limits these programs and costs lives. The administration should direct the Surgeon General to re-issue immediately findings reflecting the conclusive scientific evidence showing that needle exchange and syringe access programs reduce drug abuse and prevent HIV infection. And the administration should follow up by urging Congress to appropriate federal funds for these programs.

The federal government's policies and guidelines related to HIV also have enormous influence over the way people living with HIV are treated by state and local governments and non-governmental actors. Some of the steps we call for urge the federal government to use that influence to protect the rights and dignity of people with HIV, while also protecting the public health. For example, we call on the administration to direct the CDC to explore incentive mechanisms that will encourage states to take corrective action to eliminate state laws and regulations that have excluded people with HIV from occupational training, licensing, and employment in professions such as barbering, massage, food services and home health care. People with HIV have been discriminated against based on scientifically unsound state requirements for infectious or communicable disease clearance. Addressing this issue through litigation on a state-by-state basis could take many more years. Action by the CDC, such as increasing the availability of prevention grants to states that eliminate these barriers, could help end this state-sponsored discrimination. In addition, the Department of Justice should issue official guidance or a directive letter to state officials, clarifying that exclusion of people with HIV/AIDS from such training programs and professional licensing violates the ADA, and that such restrictions must be limited to diseases that actually pose a significant, measurable threat in the context at issue.

The "to-do list" also recognizes the vital role that lawyers play in protecting the rights and health of the poorest Americans. Federally funded legal services are a vitally important source of assistance for the poor who are living with HIV. Doctors as well as lawyers have pointed to the connection between legal assistance and maintaining the health of marginalized people with HIV and other serious illnesses and disabilities. Therefore, we call on the new administration to direct the Legal Services Corporation to remove its restrictions on the use of legal services funding for the representation of needy individuals in the areas of immigration, housing and discrimination in access to basic services or employment. To the extent that action by Congress is needed in order to lift restrictions, the administration should promptly propose legislation for that purpose.

In order to develop these proposals, the working group members -- attorneys from the ACLU AIDS Project, AIDS Legal Council of Chicago, GLAD, South Brooklyn Legal Services and the Whitman-Walker Clinic -- brainstormed together to develop a "wish list." The initial goal was for our ideas to be integrated into a federal transition document, laying out the issues that the HIV/AIDS community wants the new administration to address during its first 100 days. That overall project was coordinated by national HIV/AIDS groups including the National Minority AIDS Council, the National Association for People with AIDS, AIDS Action, the AIDS Institute, American Academy of HIV Medicine, HIV Medical Association, AIDS Alliance, National Association of State and Territorial AIDS Directors, and AmFAR. Other working groups addressed topics such as HIV research and funding.

These HIV working groups have not been alone in developing recommendations for the new administration's first 100 days. Lambda Legal itself has engaged in a similar process with respect to LGBT issues. Meanwhile many groups have created many transition documents addressing other issues: environment, reproductive rights and economic justice, to name a few. For both our HIV and LGBT efforts, the biggest challenge is getting our ideas in front of the people who can make them reality, so we are reaching out to key players in the transition planning for the new administration. In addition, we are disseminating our ideas widely, in part to ensure that human and civil rights are a central part of a national AIDS strategy. We are reaching out to our allies -- such as Of Counsel and Of Counsel On Campus readers -- in hopes of raising awareness of the stigma and discrimination that people with HIV still face and the need for the new president to take visible leadership in condemning such discrimination and supporting fair and sound policies for people with HIV.

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