Congratulations to Ben Klein: Our (First) Supreme Court Victor

Guest post from Carisa Cunningham, Director of Public Affairs and Education, who joined AIDS Law Project Director Ben Klein at the AIDS Project Worcester 25th Anniversary dinner on October 4.

AIDS Project Worcester celebrated their 25th anniversary last night with a lovely dinner at the College of the Holy Cross.  Attendees remembered APW Executive Director Joe McKee, who died in April, and honored those who continue Joe's work.  Among the honorees was GLAD's own  AIDS Law Project Director Ben Klein, who received the Outstanding Advocate Red Ribbon Award.

The award marked Ben's many accomplishments advocating on behalf of people with HIV, not the least of which was his Supreme Court win in Bragdon v. Abbott, establishing that people with HIV are protected from discrimination by the Americans with Disabilities Act.

Ben is extremely modest, but there is always a little intake of breath in a room when people are told - or reminded - that he is a Supreme Court victor.

Congratulations, Ben!

Discrimination on the basis of HIV status persists

Post by GLAD Senior Legal Assistant Joseph Wildey

GLAD recently provided assistance to a man charged with a serious crime—who spent over a month in jail as a result—simply because he is HIV-positive. Since then, I have been thinking about the necessity of education, particularly when it aims to dispel wholly unfounded beliefs.

In fifth grade, my teacher integrated health, fitness, and disease, including the sexually transmitted variety, into the curriculum. Classroom giggles aside, the lessons were informative; they taught me to maintain a cautious yet balanced perspective on prevention.

I remember learning that certain diseases were contagious, but not contagious like the common cold. A person needed to engage in more than just casual contact in order to transmit HIV, the virus that causes AIDS.

And what about shaking hands, or sharing a drinking glass with someone who is HIV-positive? Those are both perfectly safe activities with no risk of transmission, I learned. I could even hug someone who was HIV-positive, and express affection through kissing, without fear of becoming infected.

Such instruction prepared me for a world outside of school where I would undoubtedly meet and interact with people who were HIV-positive. Rather than experiencing fear in such an instance, and expressing that fear through bias or discrimination, I would be informed and open-minded.

Unfortunately, when asked to agree or disagree with the statement, “HIV can be transmitted through saliva as a result of sharing a drinking glass with someone who is HIV-positive,” sixteen percent of Americans agreed, as shown in a recent Kaiser Family Foundation survey.

Another thirty percent of those surveyed believed that kissing someone who is HIV-positive can also lead to infection.

Yet while the Centers for Disease Control (CDC) has said conclusively that HIV cannot be transmitted via saliva, the public misconceptions surrounding HIV persist in the third decade of the epidemic.

These unfounded beliefs fuel pervasive stigma and discrimination in society, as demonstrated by continued criminal prosecutions of HIV-positive individuals.

This past summer, I provided assistance as GLAD successfully interceded in an HIV-related criminal prosecution in Connecticut. The incident involved a person from Massachusetts who was charged with serious felonies as a result of spitting on a law enforcement official during an arrest.

The inflated charges, which included assault on a police officer, assault with a deadly weapon, and criminal mischief, were solely based on the fact that the individual who spit on the official identified himself as being HIV-positive during the incident.

In this scenario, HIV transmission could not have occurred, as anyone privy to the lessons taught in my fifth grade classroom would have known.

The prosecutors viewed this person’s HIV, and the fact that he had spit on the officer, as assault with a deadly weapon, despite clear scientific evidence that saliva is not a mode of HIV transmission.

Fortunately, the charges were eventually reduced, but only after GLAD, while working with the person’s public defender, marshaled an array of medical experts and advocated with public officials in order to refute the charges and secure this person’s release.

Other HIV-positive individuals have not been as fortunate. Nationwide, criminal prosecutions for similar incidents where the risk of transmission is zero are astoundingly common.

In the United States, groups like The Center for HIV Law & Policy have compiled non-exhaustive lists of at least 118 prosecutions and arrests for HIV exposure between 2008 and 2011. Many of the cases listed involve nondisclosure of a person’s HIV-positive status during a sexual encounter; however, a sizeable number of prosecutions and arrests were the result of spitting or biting.

One of the more egregious prosecutions occurred in Texas in 2008, when an HIV-positive homeless man was sentenced to 35 years in prison as a result of spitting; his saliva was viewed as a deadly weapon in that case.

The continued prosecution of HIV-positive individuals can be linked to the fear and outright hostility that characterized the beginning of the epidemic. The residual effects of this stigma and discrimination still affect HIV-positive individuals, especially those interacting with the criminal justice system.

GLAD’s AIDS Law Project was founded in 1984, at the height of the AIDS epidemic, and more than ten years before I learned the importance of choosing facts over fear. GLAD continues to educate people about misconceptions surrounding HIV-positive individuals and to ensure that policies are based on science.

However, as this experience in Connecticut illustrates, there is still much work to be done.

30 Years and the Work Continues: Winning Legal Protections for People with HIV

AIDS Law Project Director Ben Klein, with Sydney Abbott

On June 5, 1981 the U.S. Centers for Disease Control and Prevention’s Morbidity and Mortality Weekly Report published a report on five previously healthy gay men in Los Angeles who had all been diagnosed with the same very rare form of pneumonia. Two of the men were already dead. It was the first documentation in medical literature of the disease we now know as AIDS.

GLAD’s earliest HIV/AIDS cases reflected fear, uncertainty about how HIV was transmitted and the urgency of a life-threatening crisis. For example, in 1983 GLAD and AIDS Action Committee convinced Beth Israel Hospital to abandon its policy of placing all patients identified as being “high risk” for AIDS on blood and bodily secretion precautions – a policy that singled out gay men, Haitians, intravenous drug users and hemophiliacs who came to the hospital even for reasons unrelated to AIDS. In 1985, we brought one of the first employment discrimination cases in Massachusetts against a company that refused a gay man’s return to work after a period of sick leave because his co-workers feared he had AIDS.

The AIDS crisis also highlighted the utter lack of legal protections for same-sex couples. In 1987, before John Reilly succumbed to AIDS, he asked that his partner, Kevin Clarke cremate him and store his ashes in his favorite piece of Rose Fiestaware. The hospital, however, turned John’s body over to his estranged mother, who refused to abide by her son’s wishes. GLAD and cooperating attorney Gary Buseck, who’s now GLAD’s legal director, filed suit and won the return of John’s ashes to Kevin.

In 1994, Sydney Abbott’s dentist in Maine refused to treat her because of her HIV status. With AIDS Law Project Director Ben Klein as lead counsel, GLAD fought for Sydney’s right to treatment all the way to a U.S. Supreme Court victory in 1998, a trailblazing lawsuit that marked the first time the high court heard an HIV/AIDS case. The Supreme Court’s Bragdon v. Abbott ruling established nationwide protection against discrimination under the Americans with Disabilities Act for all people with HIV.

Thirty years on, an HIV diagnosis no longer equals a rapid decline and painful death. Medical advances have enabled people to lead healthy, productive and long lives. Legal advances ensure that they do so with dignity and privacy, and GLAD is proud to have played a part in bringing about those changes.

Until there is a cure, however, we remain vigilant. “Medical progress has given rise to new legal issues,” Klein observes. “Many of the cases we are seeing today are arising because people with HIV are now living long lives.”

Two prominent examples of this phenomenon came in 2001. GLAD successfully represented Belynda Dunn, a beloved AIDS activist who was dying from end-stage liver disease from Hepatitis C. Dunn was denied a liver transplant by her private HMO on the grounds the treatment was experimental because of her HIV status. Likewise, we successfully sued MassHealth, the state Medicaid agency, after it denied an anonymous client (“John Doe”) a liver transplant on the same grounds. Both Dunn and Doe received their transplants, and because of these cases, both public and private health insurers began covering transplants for HIV positive patients.

GLAD is also combating insurers who routinely refuse coverage for treatment of lipodystrophy, a condition many experience as a disfiguring, debilitating side effect of the medications that are allowing people with HIV to live long, productive lives. In 2008, the Massachusetts Court of Appeals ruled in favor of our 15-year-old plaintiff Ashley Shaw in her fight to get MassHealth coverage for doctor-recommended surgery to alleviate a large fat pad from the back of her neck, a manifestation of lipodystrophy. In 2010, GLAD successfully represented Amit Dixit in his fight to get his HMO to cover liposuction surgery, after the insurer initially refused coverage on the grounds that it was merely cosmetic.

While the fear of HIV has abated, is hasn’t disappeared. In 2008, GLAD filed a lawsuit that allowed AIDS Services of Monadnock Region (ASMR) to operate a group home for people with HIV in Gilsum, New Hampshire, without many of the onerous restrictions the town previously imposed, including restrictions on people with criminal convictions or histories of substance abuse.

“It’s clear,” says Klein, “that while the face of the epidemic has changed dramatically over the last 30 years, stigma about HIV remains too common and the need for strong legal protections is as critical as ever.”

And so, the work continues.

HIV and the Politics of Invisibility

That was the title of GLAD’s panel discussion held Tuesday night at the Jorge Hernandez Cultural Center. It is a heavy title that forces us to ask the question: “Where are we today with regards to the AIDS epidemic?” How is it possible that after so many years of devastating loss and discrimination that infection rates continue to soar, disproportionately affecting minority communities? A panel of four renowned individuals in the fight against AIDS: Douglas Brooks, ED of JRI Health; Jacob Smith Yang, ED of Massachusetts Asian and Pacific Islanders for Health; Reverend Irene Monroe, writer and activist; and Kevin Cathcart, ED of Lambda Legal took the stage to discuss their thoughts on the invisibility of the HIV epidemic in the United States.

Kevin Cathcart addressed the paradox of the US government requiring national HIV plans in developing countries, but never forcing our own country to develop one. Other countries that have placed HIV/AIDS at the forefront of national policies and used culturally appropriate prevention strategies have been successful in reducing the transmission rate of HIV. Thailand, for example, implemented a “100 percent condom program” in the 1990’s providing all sex workers with boxes of free condoms. HIV infection rates dropped significantly. What makes it so hard for the US to implement a national strategy that would decrease infection rates across the board? Is our country just too diverse to come up with one national plan?

Jacob Smith Yang discussed the complexity and diversity of the US population. Neglecting to address this diversity has left minority populations behind in the fight against HIV. Yang described the diversity within the Asian population that’s often invisible in the US. It’s necessary to break down the larger Asian population to understand the specific populations affected. When it comes to collecting demographic data for the AIDS epidemic it does not suffice to simply fill in “Asian” (or, worse, “Other” – lumping anyone who is not white, African American or Latino into one category) on a form.

Recording agencies such as the CDC have claimed that desegregating this data is useless because the differentiated numbers are too small to matter, but when infection rates continue, what number is too small? Why can’t we be concerned nationally and on a state level about the health and well being of every individual? We are lucky to live in a diverse society where each population is unique in terms of its cultural dynamics, but that makes it all the more necessary for a national HIV plan to address these differences. By failing to develop a national HIV plan for our own country, we are making this epidemic invisible to the greater public, when in fact decreasing infection rates takes the awareness of every single individual.

- Noreen Giga, Bilingual Outreach Educator



Panelists Reverend Irene Monroe, Jacob Smith Yang, and Kevin Cathcart discuss educating youth about HIV and AIDS.

The GLAD Team at the AIDS Walk

Over 18,000 people participated in the Boston AIDS Walk on Sunday to raise $1.2 million in support of AIDS Action Committee. We were proud to be among them!

The AIDS Walk: It Still Matters

The annual AIDS Walk fundraiser for Boston's AIDS Action Committee is coming up this Sunday. Securing legal equality for people living with HIV/AIDS is a key part of GLAD’s mission, and supporting AAC's community-based education, prevention, advocacy and health service work is important to us.

And so we have a team walking, as we do each year. In fact, this year we’re proud to be the nonprofit organization that has raised the most money for the cause.

A large part of that money was raised by one dedicated staffer, who set a personal goal to ask 200 people to give just $5 each. Sure, some people weren't able to give, and then many people gave more than $5. The point was that lots of people never get asked to give at all, and if you ask, you may be surprised by who will.

More importantly, though, the effect of asking 200 people to support the AIDS walk, whether they gave money or not, is that 200 people were reminded that HIV and AIDS are still with us, and that AAC's mission - to provide support services for people living with AIDS and HIV; to educate the public and health professionals about prevention; and to advocate for fair, effective AIDS policy - is still vitally important.

AIDS is not over - neither is the fight.