Disability Law

The earliest legal response to the epidemic took the form of judicial decisions, beginning in the fall of 1983, when a New York State court ruled that a cooperative apartment building violated a state law banning disability discrimination when it refused to renew the office lease of Joseph Sonnabend, a prominent AIDS doctor.

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Subsequently, courts in New York, California, Florida, Massachusetts, New Jersey, West Virginia, and other states rendered important early decisions applying disability discrimination laws to assist persons infected with HIV (Human Immunodeficiency Virus), the virus believed to cause AIDS, in cases involving denial of services by hospitals and funeral homes, employment discrimination, attempted exclusion of children with AIDS from public schools, refusal to rent residential housing, and refusal of access to drug treatment programs.

In 1985, the city of Los Angeles, California, became the first jurisdiction to pass a law specifically outlawing discrimination on the basis of HIV infection, but this did not spark a trend of AIDS-specific civil rights laws. Instead, lawyers working in this area concentrated their efforts, usually successfully, on getting courts to find protection for people with HIV under existing laws banning disability discrimination. In 1984, Lambda Legal Defense & Education Fund published an "AIDS Legal Guide" that proved influential in persuading government officials and judges that disability discrimination laws applied to protect people infected with HIV.

In 1987, the United States Supreme Court ruled in School Board of Nassau County, Florida v. Arline, 480 U.S. 273, that physical impairments caused by infectious agents could be disabilities within the meaning of federal civil rights law, giving its imprimatur to the early discrimination law rulings, even though the case the Court was deciding did not directly involve AIDS.

Congress enacted the Americans With Disabilities Act (ADA) in 1990, incorporating the reasoning of the Arline decision, but providing that an individual with a disability would not be protected from discrimination if her presence in a workplace or other contested setting presented a "direct threat" to others.

In an important test of this law, Bragdon v. Abbott, 524 U.S. 624 (1998), the Supreme Court ruled in 1998 that a dentist may have violated the law by refusing to provide routine treatment in his office to a woman infected with HIV. However, subsequent rulings in lower federal courts have cast doubt on how helpful the ADA will ultimately prove in many AIDS discrimination cases, in part because new treatments have significantly reduced the disabling effects of HIV infection for many individuals.

The protection of civil rights laws for people affected by AIDS was of particular significance to gay men, who are widely perceived as the most significant "risk group" for AIDS and who encountered new forms of discrimination during the 1980s fueled by fear of the deadly epidemic. Some early court decisions found that defendants had violated disability laws when their motivation for discriminating against gay men was fear of exposure to AIDS.

Lesbian and Gay Public Interest Law Firms

The lesbian and gay public interest law firms all took an immediate interest in guiding the development of AIDS law, as gay men infected by AIDS turned to them for legal assistance. Lambda Legal Defense & Education Fund in New York, Gay and Lesbian Advocates and Defenders in Boston, and National Gay Rights Advocates in San Francisco all established AIDS law projects, and the American Civil Liberties Union established an AIDS & Civil Liberties Project under the auspices of its Lesbian and Gay Rights Project.

Although some of the clients of these programs were not gay, the development of "good law" in the area of AIDS was seen as crucial to protecting the civil rights of gay people. A side effect of this process was that openly gay and lesbian attorneys working on AIDS-related issues received extensive exposure in the press as "authorities," helping to advance public respect for gay people.

Transmission Fears

Discrimination law was but one of the areas touched by AIDS. Domestic relations courts coping with child custody and visitation issues had to evaluate the impact of a parent being infected with HIV, and made important rulings that usually were careful to take a realistic view of the risks involved.

Both criminal and civil courts had to confront questions of liability for transmission, either through blood transfusions or sexual activity, and here the results were not always so rational. In some cases, courts actually sentenced HIV-infected individuals to lengthy prison terms for spitting at law enforcement officers in tense situations, under theories of "attempted murder" that seemed to have little anchor in reality.