ADA & HIV Legal Protections
The fight for disability rights has been long and arduous, marked by significant milestones and persistent challenges. For people living with HIV (PLWH), this struggle intersects with ongoing battles against stigma, misinformation, and discrimination. While legislation like the Americans with Disabilities Act (ADA) has provided important protections, achieving true equality and inclusion demands vigilance and robust, consistent enforcement.
Systemic barriers often obstruct PLWH from educational opportunities and professional fulfillment. Take Robin Dugas, a cosmetology student in Arkansas. Despite being fully qualified, she was denied her license by the Arkansas Board of Cosmetology solely because she disclosed her HIV-positive status. This blatant discrimination, challenged by Dugas and the ACLU, exemplifies the ingrained stigma PLWH continue to face.
The ADA guarantees equal opportunity and prohibits discrimination against people with disabilities, including PLWH, recognizing that HIV, even in asymptomatic stages, can limit major life activities. However, as Dugas' case shows, legal protections alone don't ensure lived equality. PLWH still face stigma and discrimination, especially in healthcare, employment, and access to services.
The emergence of HIV in the 1980s led to widespread fear, misinformation, and discrimination, affecting marginalized communities and resulting in societal rejection, job loss, and denial of healthcare.
In response, the ADA was passed in 1990, marking a turning point against HIV discrimination by recognizing people with HIV as having a disability. This ensures their right to equal opportunities in employment, public accommodations, housing, essential services, and as we have seen recently, the justice system. The ADA’s impact was solidified in the Supreme Court case Bragdon v. Abbott (1998), where the Court ruled that even asymptomatic HIV qualifies as a disability. This decision underscored that discrimination based on HIV status is unlawful and affirmed the rights of PLWH.
The ADA as a Tool for Change
The ADA requires ongoing interpretation, enforcement, and adaptation. Recently, the U.S. Department of Health and Human Services (HHS) updated Section 504 of the Rehabilitation Act to strengthen protections against disability discrimination, particularly relevant to PLWH. Research shows that healthcare professionals sometimes harbor biases against PLWH, leading to a lower standard of care and poor health outcomes. The updated rule directly combats this by explicitly prohibiting discrimination in medical treatment decisions based on biases, stereotypes, or judgments about the value of life based on disability. Healthcare providers cannot deny, delay, or provide lower quality care to PLWH simply because of their HIV status.
Additionally, this update mandates accessibility for websites and mobile applications and works to ensure equal access for people with disabilities, including providing sign language interpreters and accessible medical diagnostic equipment, such as exam tables and mammography machines.
These updates enhance the legal framework to hold healthcare providers accountable for discriminatory practices and empower patients to advocate for their rights. As HHS Office of Civil Rights Director Melanie Fontes Rainer stated, “By removing barriers to healthcare and social services, this rule advances justice for people with disabilities who have for too long been subject to discrimination.”
Persistent Challenges: Evidence of Ongoing HIV Discrimination
Despite ADA protections, many PLWH still face discrimination. Recent cases and public health data highlight the need for robust ADA enforcement, education, and state-level policy reforms.
A 2021 UNAIDS fact sheet showed that in 7 out of 11 countries surveyed, 21% of PLWH were denied healthcare in the past year, and over 50% experienced job loss due to HIV-related discrimination. These findings highlight the global scope of the problem.
The ViiV Healthcare Positive Perspectives survey (Wave 1) found that 39% of respondents experienced institutional stigma, including denial of jobs, visas, health services, or education. Nearly a quarter worried that their HIV status would negatively impact their relationship with their primary care provider.
These data emphasize the need for interventions addressing HIV stigma and discrimination, particularly those intersecting with race, gender identity, and socioeconomic status. Legal protections like the ADA are essential but must be supported by enforcement, public education, and efforts to dismantle systemic barriers. Indeed, the necessity of robust enforcement and education becomes apparent when examining real-world incidents where these protections falter.
Case Study: Tractor Supply Company
In 2024, Tractor Supply Company settled a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) for $75,000 on behalf of a Mississippi woman with HIV. The manager disclosed her HIV status to coworkers and then fired her after she complained about the resulting harassment. The woman endured verbal abuse and discriminatory treatment from colleagues fearing HIV transmission. The EEOC argued that Tractor Supply failed to protect her from a hostile work environment and retaliated against her for reporting the discrimination.
Marsha Rucker, a regional attorney for the EEOC, stated, “Tractor Supply Company created and maintained a hostile work environment for this employee by publicizing her private medical information and then failing to address the harassment this generated. Rather than protect this employee from harassment, the company fired her.” This case highlights the vulnerability of PLWH to workplace discrimination, even with clear legal protections.
Case Study: Tennessee’s Aggravated Prostitution Law
The criminal justice system can also be used as a tool of discrimination. The lawsuit OutMemphis v. Lee, brought by OutMemphis, the ACLU, and the Transgender Law Center, challenges Tennessee’s aggravated prostitution statute under the ADA and the U.S. Constitution. This ongoing case highlights how such laws disproportionately target and punish PLWH, effectively barring them from various social, employment, and housing opportunities due to the requirement to register as sex offenders.
Parallel to this, the Center for HIV Law and Policy (CHLP) submitted complaints to the Department of Justice (DOJ) which launched its own investigation, focusing on the discriminatory enforcement of the aggravated prostitution statute in Shelby County. The DOJ’s investigation found that the state and the Shelby County District Attorney’s Office violated Title II of the ADA by subjecting people living with HIV to harsher criminal penalties solely because of their HIV status.
When asked about the strategy to challenge the aggravated prostitution statute, Jada Hicks, staff attorney with CHLP’s Positive Justice Project explained, “if a person is accused of being a sex worker… that's a misdemeanor charge. If they then find out that they're HIV positive, it's a felony. That's it. That's all it takes. That is the most clear violation of the ADA that I can think of. It’s the perfect example of how you can violate the ADA based on someone's health status.”
The impact of this legal challenge has been profound, resulting in a landmark settlement agreement and a major win in the fight against HIV criminalization. This case marked the first time the ADA has been successfully used to challenge and dismantle such a law. Sean McCormick, a staff attorney at CHLP, highlighted the significance of this achievement: "This really reflects a tremendous milestone in this fight to use the ADA to attack HIV criminalization [as it] represents the first tangible, concrete change to laws, policies, practices that promote and enable HIV criminalization." There are currently 10 other states with similar aggravated prostitution laws that could be impacted by the Tennessee case, underscoring the broader potential for reform and the importance of strategic advocacy to address these unjust laws on a national scale.
In apparent backlash to these legal actions, Tennessee passed an amendment that expands the offense of aggravated rape to include cases where the defendant, knowing they are infected with HIV, commits rape and transmits the virus to the victim. This amendment, enacted in May of 2024, reflects ongoing legislative efforts that may further stigmatize and criminalize PLWH, highlighting the need for vigilant advocacy and legal challenges.
McCormick reflects on the role of HIV criminalization laws in oppressing marginalized groups, "the Tennessee experience with aggravated prostitution really speaks to the way that HIV criminalization continues to oppress marginalized folks... these laws are used as a way to target marginalized communities, particularly black trans and cisgender sex workers."
Hicks adds, "People who sit at the intersection of multiple identities are at an increased risk of interacting with the criminal legal system. For instance, if you're black, trans, inject drugs, and you're an immigrant, it's just increasing your chances of having an interaction with the carceral system."
This case serves as a potent example of how the ADA can be utilized to challenge similar laws in other states. As McCormick points out, "The most obvious translation is other states with very similar sentences and sentence enhancements for people who are convicted of aggravated prostitution." CHLP is actively working with advocates in states like Ohio and Pennsylvania to replicate the success achieved in Tennessee.
The Need for State-Level Reform
While federal laws like the ADA provide crucial protections for PLWH, as we have seen, state-level laws remain inconsistent and often inadequate. This patchwork of protections creates confusion and vulnerability, as PLWH may face different consequences depending on their state. Outdated HIV criminalization laws and sentence enhancements are still on the books in 30 states, highlighting the ongoing need for state-level advocacy and reform.
Realities Facing PLWH:
Indiana: Indiana has HIV-specific criminal statutes that classify nondisclosure of HIV status to sexual partners, needle-sharing partners, or exposure to bodily fluids as felonies or misdemeanors. These laws discourage HIV testing and disclosure, perpetuating stigma and discrimination. Additionally, these statutes do not account for modern medical understanding of HIV transmission, leading to potentially unjust legal consequences.
Tennessee: Despite removing aggravated prostitution as a "violent sex offense" requiring sex offender registration, Tennessee maintains the aggravated prostitution offense. This law penalizes PLWH harshly for consensual sex work, disproportionately affecting those who are already marginalized by race, gender identity, poverty and other intersectional social determinants.
Louisiana: Louisiana's HIV-specific laws are particularly concerning. The state's broadly written statute criminalizes "intentional" exposure to HIV through sexual contact, even without transmission risk. The law's failure to define "intent" leaves interpretation to law enforcement and prosecutors, discouraging open communication about HIV status and leading to potential prosecutions without intent to harm. No actual transmission is required for conviction, meaning PLWH can be prosecuted for behaviors like spitting, biting, or consensual sex with a condom. The Center for HIV Law and Policy's analysis highlights how Louisiana courts have interpreted "sexual contact" broadly, allowing subjective enforcement and encompassing acts with no risk of HIV transmission.
The journey toward equality for people living with HIV (PLWH) has seen notable achievements, such as the protections offered by the Americans with Disabilities Act (ADA), yet it remains hindered by ongoing stigma and discrimination. Despite legal safeguards like the ADA, real-world equality requires consistent enforcement and proactive advocacy.
Discrimination in healthcare, employment, and through punitive laws like Tennessee’s aggravated prostitution statute highlights the significant challenges PLWH face. These laws disproportionately affect those at the intersection of multiple marginalized identities, making the vigorous application of the ADA across states crucial. The updated Section 504 of the Rehabilitation Act by the U.S. Department of Health and Human Services (HHS) is a step forward, ensuring that biases in healthcare and other services do not undermine the rights of PLWH.
Looking ahead, it's essential to support litigation efforts, push for legislative reforms, and educate the public to dismantle systemic barriers. Organizations like the ACLU and CHLP play a critical role in this fight, but broader community engagement is vital for sustained change.
By enhancing ADA protections and advocating for their robust enforcement, we can transform societal attitudes and ensure that all individuals with HIV live dignified lives, free from prejudice. For more information, visit the Americans with Disabilities Act homepage and the Center for HIV Law and Policy.
Mid-Year Public Health Policy Update
Ya’ll…the last 4 months have been wild.
Let’s start with the “win”, shall we?
Last week, the Supreme Court of the United States (SOCTUS) issued its ruling in Talevski, authored by Justice Jackson and siding 7-2 in favor of patients’ private right of action to initiate lawsuits when their rights issued by law or regulation relative to a federally funded program are violated by an entity paid under that program. Now, the Taleski family still has to go back to district court to fight the Health and Hospital Corporation of Marion County (HHC) – SCOTUS just denied the effort by HHC to claim patients didn’t have a right to seek remedy when the payor was the government. As we described in January, this idea that patients couldn’t initiate lawsuits when federally funded programs weren’t administered fairly or didn’t comport with the statutory language or regulatory definitions is pretty bonkers. Indeed, for most actions regarding any kind of federally funded programming, the government typically comes in after the fact and those injured have to initiate the court processes themselves. Some advocates, particularly disability and Medicaid advocates, called the potential of the court to rule restrictively in Talevski “the Dobbs of Medicaid”, and urged the parties to consider settling ahead of a ruling. However, the potential crisis was averted because, as Justice Jackson put it, “Hewing to [the relevant statute]’s text and history (not to mention our precedent and constitutional role), we reject HHC’s request, and reaffirm that ‘laws’ in [the statute’s text] means what it says.”
Fancy that, laws meaning what they say.
Speaking of laws and problematic folks tryna skirt them, the 5th Circuit Court of Appeals heard oral arguments as to the stay – not the whole merits of the case – of Judge Reed O’Connor’s effort to strip the Affordable Care Act’s (ACA) preventative coverage mandate by way of extraordinary bigotry – targeting HIV prevention medication because “ewww, the gays”. As our friend, Chris Geidner, over at Law Dork covered those arguments and boy howdy! I wouldn’t wanna be Jonathan Mitchell – well for a lot of reasons but this one is pretty good, too. Mitchell’s name should look familiar as he’s arguing for book bans, helped author Texas’ head-hunting abortion law known as SB8, and is, in general, a deeply rotten human being. During thee oral arguments Mitchell fell more than a little flat, in no small part because the Department of Justice’s attorney, Alisa Klein, was gracious in asking “what’s the harm in putting in a stay?” In essence, she argued the physicians that Mitchell represented – who have themselves claimed to have never personally administered to an abortion or anyone needing HIV-related services but might, maybe, one day have to help a patient who experienced adverse events as a result of these extremely safe medications on the off chance they respond poorly to them – don’t actually have a tangible harm in putting off implementing O’Connor’s “universal remedies”, while some 2 million health plans as an industry and millions of patients across the country certainly will experience an impact if the ruling were to go into effect while being appealed. Mitchell kinda fell flat footed and basically asked the court to speculate what would happen if the stay wasn’t implemented. Hint: Courts aren’t actually supposed to pull conclusions out of thin air, “facts” must be presented inside of defined rules. So Mitchell then hedges cuz everybody suddenly seems real skeptical in how this might relate to standing and he asks of he can maybe meet with the DOJ to come up with some settlement agreement between the parties on the stay.
Now for the not so good news and there’s two bits to this one we’re gonna need to watch for quite some time; 1. Medicaid unwinding and 2. public health funding claw backs in the debt ceiling deal.
Last week, CANN hosted it’s third and final Community Roundtable in a series on COVID-19 impacts on public health and all the bad news is related to that intersection.
Because the House and the Senate voted to end the COVID-19 public health emergency a month early, Medicaid’s continuous coverage unwinding began pretty chaotically. To literally no one’s surprise, millions of folks are already losing their Medicaid coverage and not necessarily because they don’t qualify. The administrative or procedural disenrollments happen not because of a person or family no longer being qualified for Medicaid, but because a program administrator has not received necessary document responses. But the thing about that is, not a whole lot of folks who gained coverage for the first time during COVId-19 actually know a whole lot about the process, according to a Kaiser Family Foundation survey. And not every state is making it easy. Indeed, Arkansas and Florida are in a massive rush to get folks off Medicaid rolls – so fast that advocates are begging those states’ governors to slow down the process in order to reduce the risks of losing people to care who might otherwise qualify. Those states’ governors aren’t likely to respond to these pleas, despite guidance from the Centers for Medicare and Medicaid (CMS) to “not rush” the process. Those disproportionately at risk for being thrown off Medicaid are also those who are most at risk for acquiring HIV or already living with HIV and being covered by Medicaid. Again, about 40% of people living with HIV are covered by Medicaid, it stands to reason our patient population is at risk of potentially falling out of care if these processes are rushed.
Back in April, CANN reviewed annual sexually transmitted infection (STI) surveillance data released by the Centers for Disease Control and Prevention (CDC). In doing so, we pointed out the potential hazards of the Biden Administration failing to uphold its promise to reinvest in public health programming, specifically million dedicated to replenishing the workforce via disease intervention specialists (DIS). Those dollars were promised under the American Rescue Plan (ARP) but, as with all federal programs, take time to disburse. In the case of workforce development in state health departments, that means identifying an appropriate vendor to contract with to provide training, then contracting them to develop a curriculum, then giving guidance as to qualifying certification, then disbursing dollars to contract provider entities, then actually hiring people (in which there’s serious churn), training them, and so on. It takes time. But states weren’t quick to use those dollars and many of them remained unspent as the debt ceiling approached. A late-minute deal was struck between the White House and House Republicans in which certain public health funding allocated under the ARP are being clawed back. How this impacts our nation’s ability to provide meaningful public health services and address rising crises like STIs, we’ll find out in the worst possible way. For what it’s worth, our friends over at the National Coalition of STD Directors has called on the Administration to protect the public health workforce in light of the country’s first STI National Strategic Plan and how cutting those dollars risks any tangible ability to respond.
Advocates have tons more to pay attention to as the Biden Administration begins responding to this state legislative session’s “Hate Slate”, targeting LGBTQ people and our care. And because Congress is working to address things like reforming pharmacy benefit managers and 340B.
In all, advocates should work to focus on their strengths, strengthening relationships with service providers and legislators – sharing the human costs of these moves – and taking care themselves. With so much going on all of the time, we have to celebrate our wins while fighting for a fairer system serving patients. In order to do that, we have to also take care of ourselves.