HIV/AIDS and the Gay Community: A (Belated) Report from Lavender Law

AidsribbonOur community has made great strides lately. We destroyed DOMA. Same-sex couples are able to marry in 13 states: California,
Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota,
New Hampshire, New York, Rhode Island, Vermont, and Washington, as well
as the District of Columbia. New Mexico is slowly, county-by-county coming around, as well (more on that in a future post). We have passed anti-bullying legislation, anti-harassment legislation, anti-employment discrimination and banned harmful ex-gay therapy in several states.

But where are we with HIV? As Scott noted, "Gay and bisexual men recently
accounted for 63% of all new HIV infections and perhaps most concerning
is the 22% increase among those between 13 and 24 years old. Each day,
more than eighty gay and bisexual men become infected with HIV in the
United States." These trends are worse in communities of color and, especially, among transgender individuals, where "28% of transgender women are HIV positive in the United States, with rates over 50% for African American transgender women."

Our community used to be galvanized around ending these types of statistics. Granted, the AIDS Crisis in cities like New York, San Francisco and Los Angeles in the mid to late 1980s and early 1990s gave us scarier numbers. But these rates are worrisome enough that something must be done. Plus, we are still dealing with HIV-related stigmatization that, if anything, has gotten worse over the years. And most American jurisdictions treat HIV-positive individuals as presumptive criminals.

We are doing too little about it.

LavlawHere was Scott's "come to Jesus moment":

Lavender Law has not been immune to
the phenomenon [of neglecting HIV for hotter topics]; not able, perhaps, like a
large swath of the more privileged members of the LGBT community, to
resist the quite natural desire to “disown” HIV/AIDS as a health crisis
centered in our own community; and that has, like many of the LGBT
organizations who signed on to [a joint] statement [on HIV/AIDS]—not to mention the ones
that did not—been sometimes just a little too willing, it seems, to let
others take the lead in the battles that remain to be fought on behalf
of those living with and affected by HIV.

So while I am here today to talk
about the past 25 years of Lavender Law in relation to HIV/AIDS—and to
celebrate the many successes that we have had in the fight against this
disease and, in particular, that this legal community has achieved in
reducing the stigma, inequality and social injustice that fuels this
epidemic—I am also here to issue a challenge, a challenge to the
leadership and the membership of this organization, as well as the legal
community more broadly, to re-engage on this issue and to re-focus some
of its tremendous energy and formidable capabilities on doing what we can to help end the epidemic that continues within our community, right here in these United States.

Over the years, HIV and AIDS went from being the center of our focus to being "all but invisible," Scott said. Lavender Law doesn't talk about it. Our leaders don't talk about it. George W. Bush, for all his flaws, gave more oxygen to the AIDS epidemic than the leaders of our major gay rights organizations like the Human Rights Campaign and GLAAD.

It makes sense that our priorities would shift. But it doesn't make sense that we would leave our brothers and sisters behind.

Why did this happen?

In discussions with Scott and activists like Peter Staley (of How to Survive a Plague fame) and Sean Strub of the Sero Project, I think there are several justifications for the lack of focus on HIV: HIV fatigue (for years, that's all we talked about), the need to reach a younger donor base (young people did not live through the AIDS Crisis), more pressing matters of great import (marriage, employment discrimination, etc) or the feeling that we have done our part (lawyers got HIV-positive status included in disability laws).

6326238_600x338Or maybe we don't think it's our problem anymore. Scott reminded us of Andrew Sullivan's article in the New York Times entitled, "When Plagues End," which some activists feel was the breaking point. When the Bay Area Reporter was finally able to print a headline, "No Obits," HIV and AIDS stopped being a "gay" disease. It became a black disease, a poor person's disease, an African disease.

None of these justifications are legitimate, and Scott showed us why at Lavender Law.

HIV Fatigue: I'm sorry you're tired of hearing about HIV. But your ears are SOL when "one in five gay and bisexual men are
living with HIV, and of the people living with HIV, 1 in 5 do not know
they are infected." As Scott said, "Not talking about it is still not an option."

Younger People: Millennials, like all other people, will care about the issues we persuade them to care about. We are a discriminating audience, indeed, looking for the next hot topic and distracted by this or that text message. But we aren't vapid. Our leaders should not give up on talking about HIV because they find it hard to reach us; do better at reaching us!

The work is done: False. We only recently ended the HIV travel ban. We only recently stopped segregating HIV-positive prisoners. We still have HIV-positive individuals with undetectable viral loads and no STIs going to jail for having protected sex with another person. We still have laws that stigmatize HIV-positive individuals are presumptive criticisms. We still have work to do.

It's not our problem: At best, this reflects our desire to focus on making social gains in a positive political environment. At work, it smacks of racism and callousness. HIV may not only affect LGBT populations, but it does in overwhelming numbers. And even if that were not the case, even if young black gay men were not getting infected all too frequently, the shift to more vulnerable victims does not excuse us from the responsibility to help.

Scott challenged us to remember the vulnerable, to remember that we are still in this fight, to remember that we are victimized by a disease that casts our community as deviant. Visit the website of the HIV Project at Lambda to learn about some of these issues, contact them if you have a problem and learn how you can get involved.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for
Information Law and Policy and a professor at New York Law School and is
concurrently getting his PhD at Columbia University in New York City.
He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard
Law School. Ari writes weekly posts on law and various LGBT issues.


  1. Sam says

    The problem has always been the “bug chasing” community. You hear about that and you immediately want to vomit and pass laws stigmatizing them. I do know a few HIV+ positive people that are very kind but like anything, only takes a few rotten apples to spoil the bunch.

  2. BABH says

    Spot on. The spiking infection rates are *the* issue for our community, especially now that DADT is gone and DOMA is more or less gutted. We need a massive public awareness campaign, and I can sense momentum for one starting to build.

  3. Daniel says

    “. . . the stigmatization associated with criminalizing HIV”

    Ari, you are such a shameless liar. HIV is not criminalized. Having HIV is not criminalized Not even having sex while having HIV is criminalized.

    What is criminalized is having sex without informing your partner of your HIV status or lying to your partner about your HIV status. I say: Good. That is what a decent society does. Because your sexual pleasure in a hookup is less important than protecting the health and safety of others.

    You feel that, despite your HIV status, your partner should have sex with you anyway? Fine, tell your partner the facts, make your case and let him decide. You don’t get to decide for him by concealing information.

    It doesn’t surprise me that you wouldn’t understand this, Ari. You are a guy who used this space to defend Dharun Ravi and to belittle the death of Tyler Clementi. Given your history, it is perfectly understandable that you would disregard the health and safety of gay youth in this context too.

  4. DrunkEnough says

    At this point, if you don’t have HIV and you have sex with someone, you know better than to do it unprotected. We have been living with this for thirty years. The onus to bring it up shouldn’t entirely be on people with HIV. We ALL know it’s out there, we all know people don’t or can’t disclose for whatever reason, and we all know how to protect ourselves. Negative guys should always take steps to self-protect, and Daniel’s assumption that it’s always up to the poz guy to bring up the topic is a continuation of the stigmatization of the ’80s. Take some responsibility, neg guys.

  5. Daniel says

    That’s good advice for negatives, Drunkenough, but it has nothing to do with the independent obligation of a positive to disclose.

    Yes, it is prudent for a negative person to protect himself. But if there is a individual who fails to do so – whether out of youth, inexperience, a poor ability to assess risk, mental incapacity, or any other reason – that does not extinguish the obligation of the positive individual to disclose. That is all that is required of the positive person. Relay the facts. Once he has done that, his partner can make an informed decision. If his partner wants to proceed, then there is no criminal liability, even if an infection results.

    If however, the positive individual fails to take even the minimal step of disclosure in order to procure sex, then he should be prosecuted. And the stupidity of his victim is no more a defense than it would be for a mugger to argue that his victim shouldn’t have been flashing cash in a dark alley.

  6. GregV says

    There are some big differences between a health crisis and the human rights issues he mentioned.
    Problems like HIV, unwanted pregnancy and emphysema can usually be prevented by a combination of comprehensive prevention education and safe choices on the part of the individual.
    In cases where there is a lack of information available on health issues (the teen who never heard in school that condoms can break or that nicotine is addictive, etc.), we have a far-reaching problem that needs to be addressed by public policy.
    But we also have a very large subsegment of society that will choose to risk getting HIV, getting pregnant, getting emphysema, etc., AFTER they know how to minimize the risks.
    You would think that nobody born since 1965 started smoking before they heard of the dangers, and yet, defying what seems logicsl, smokers younger than that still exist.
    I don’t know of any studies profiling the traits, self-confidence, sex education background, etc., of HIV patients. It might be very telling to find out that X percentage are closeted and were afraid to seek out information or that X percent were unaware of this or that fact after graduating high school.
    And if we were to make sure that every high school student knows that sex between a man and woman can be devoid of pregnancy risk or that sex between two men can be completely safe and every student understood how, how many teen pregnancies and new HIV cases will still crop up? Maybe we’ll always have 15% (or whatever) who will choose the risks.

  7. Bill says

    @Ken: I remember reading an article about “bugchasers” quite some years ago. Apparently the “community” (if you can call it that) would fit into a single small apartment in the Castro, where they would get together to do their thing.

    If you divide the number of participants that could fit into a space that small by the number of gays living in and nearby San Francisco, you get a number that is probably small compared to the fraction of the population suffering from an acute psychosis.

  8. says

    Condoms, please. We still have guys who think that ‘safer sex’ means you avoid guys who are upfront and honest about being HIV Positive and then go and bareback with guys who say they’re “neg” or (gag) “DDF”

    @Daniel, get over Ari’s rather nuanced understanding of the Ravi incident. Ravi, let’s be real here, is an example of trickle-down bigotry. his crime was about invasion of privacy – internet style. What he said and “did” to Clementi had less of an effect on Clementi than the anti-gay church that Clementi’s own parents attended, with their son(s), for all those years.

    Ravi’s “anti-gay” mockery and belittling and shaming would have meant nothing in a society that is not anti-gay. Ravi, thus, is being crucified for doing exactly what Republican politicians do to get votes: promote and encourage anti-gay bigotry.

    Does this mean, Ravi is innocent? No. And Air never stated that. But smart people will see that the problem was not that Ravi was an anti-gay bully, but the product of anti-gay bullying culture. And when a country’s leaders and politicians finally stop promoting anti-LGBT prejudice, there will be fewer brats like Ravi, and fewer people like Clementi who believe their nonsense.

    but get it straight (no pun intended) – Ravi’s actions exacerbated fears already instilled in Clementi by growing up gay in an anti-gay church, in an anti-gay culture, in a country where an entire political faction’s raison d’etre seems to be “hate gays and vote for me!”

    so shut up about it already.

    now, back to HIV. condoms. condoms. condoms. every time. even when he says he’s “neg”. especially when he says he’s “neg”

    just don’t give an excuse for not using one.

  9. Judy88 says

    More than 400 million people living with Herpes in the world. Most of them suffer from the sickness and loneliness. A safe and private social channel, such as, is essential for people living with STDs to meet friends, find someone in the same situation to talk and seek soul mate.

  10. etseq says

    Yea – calling gay men racist and “privileged” works so well when it comes from both the left and the right – That will sure teach those silly fags a lesson! It might make you feel morally righteous and score points with the Queer Theory crowd – the ones who defend those down low MSM (can’t call them self-loathing closet cases because that would be “imposing a gay identity” on them and most definitely racist if they POc) but I doubt its an effective method to raise money or advance your agenda.

    Anyway, the gay legal rights orgs lost alot of credibility with the larger community when they refused to support gay and lesbian plaintiffs who wanted to sue for gay marriage. Eddie Windsor was blown off by Lambda as I recall and had to find a private firm to take the case pro bono. And threw a hissie fit when Boies and Olson were hired to challenge Prop 8 – hell they even tried to sue to intervene – talk about chutzpah!

  11. Fiveht says

    Daniel, the main reason it should not be criminalized is that if you are undetectable and using a condom, you won’t infect anyone with HIV. The studies are out, it’s a fact, and making it criminal when those two criteria are met is just due to stigma.

    That said, I do agree that it is better for people to disclose before any risky activity. People should do that. But it should not be a crime not to disclose.

  12. says

    Regarding the HIV fatigue issue, this is a big problem here in Australia and it’s one of the reasons a 24 % jump in new HIV cases in the state of NSW (capital of which is Sydney) has just been recorded. It doesn’t help that ACON, the peak HIV/AIDS prevention body in this state, refuses to tell people the truth of HIV – the message they send out is basically that HIV is no big deal anymore, and you just go on meds if you get it.

    A petition calling on the NSW state government to investigate ACON review their $10 million per year in government funding has just been launched on It makes some great points:

    “In education on the dangers of drink driving, speeding, binge drinking, smoking tobacco, heart disease and lung cancer, the campaigns are very graphic and explicit in the information they provide about consequences. The HIV campaigns are not.”

    “The Sydney gay community has a right to honest explicit, accurate information in order to be able to make informed choices. A good example is NYC’s ‘It’s Never Just HIV’ campaign.”

    The petition is located here. Please sign:

  13. DB says

    On the contrary, the only way to end the HIV pandemic is to strengthen enforcement of laws against the spread of the disease. Anyone who is infected with HIV or likely could be infected should be arrested and imprisoned in solitary confinement if he or she A) has sex without a condom, B) has sex without telling someone that he is infected, or C)infects someone with HIV. Make no mistake, having unprotected sex while infected with HIV is cold-blooded murder and it should always be treated as such. If you ever hear of anyone with HIV having sex without a condom or without telling their partner/victim of their infected status, please report them to the police immediately.

  14. DB says

    FiveHT, while criminal penalties for an HIV-infected person should be higher than for an HIV-infected person having sex without disclosing his or her status (probably life in prison for the former crime and 10-20 years in prison for the latter crime), it does not change the fact that non-disclosure is an extremely grave crime. Every human being has a right to know if someone is exposing him to a risk of being infected by a fatal and incurable disease. Pointing a loaded gun at someone should be illegal even if the safety is turned on.

  15. Fiveht says

    You’re missing the point. Someone indetectable and wearing a condom is not exposing him to a risk of being infected by a fatal and incurable disease. It is definitely less than someone who has not recently been tested for HIV and been monagamous.

    Of course, if you want to be consistent, then adultery (without explicit consent from the partner) should be a crime too, since you could be exposing your partner. Or having sex with someone without explicitly saying “I had sex with X number of people before you, starting from three months from my last test.”

    IF the pro-crime people were arguing all of that, I would be more willing to accept the arguments.

  16. GB says

    HIV represents gay before the societal face lift brought on by the fight for rights. The rights advocates had no use or experience with HIV. Well. sorry newlyweds, tax money, and retirement benefits seekers –The sad reality of HIV still exists. We lost thousands during that “side of history.”

  17. LetsTalk says

    The only reason HIV is still around is because the community needs it.

    There’s not really any excuse for anyone to become HIV positive at this point.

    If you’re positive, you must disclose.

    If your’e negative, you must assume that everyone is positive.

    It’s pretty simple stuff, and people need to stop talking around the issue and put it bluntly.

    No excuses, no BS, let’s stop this little money game that is HIV/AIDS, we’ve been exploited for far too long.

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