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Legal Discrimination

Preventing discrimination has shaped the medical and public health response to AIDS and HIV. This task is complicated by the double nature of the discrimination. While many AIDS patients were discriminated against because of their disease, most of the discrimination against homosexuals was because of a traditional condemnation of homosexuality rather than a new-found fear of AIDS. This discrimination against homosexuals is deplorable, but it is legal, except in certain jurisdictions that have enacted specific legislation prohibiting discrimination based on gender preference. As Chief Justice Warren Burger wrote in a case upholding the authority of Georgia to outlaw homosexual sodomy:

Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western Civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. ... The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching. This is essentially not a question of personal "preferences" but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.[151]

Because the Supreme Court found it legal to discriminate against homosexuals, gay rights advocates were left with a dilemma: they did not want to advocate going back into the closet, but a positive HIV test might also be seen as a positive test for homosexuality. For many, the way out of the dilemma was to attribute all discrimination to fear of HIV and discount the traditional bias against homosexuals. This led to the belief that the only way to prevent discrimination was to keep HIV infection hidden from employers and others. The campaign to hide HIV resulted in political pressure to make it difficult for physicians to test for HIV and to prevent physicians from disclosing a patient's HIV status.

This campaign was premised on the assumption that physicians, and especially public health departments, were derelict in their duty to protect patient records. In 1987 the Association of State and Territorial Health Officers convened a panel to report on the problem of confidentiality of medical records of HIV status. This panel polled health departments, civil rights commissions, and homosexual advocacy groups around the United States in an attempt to document as many incidents of discrimination secondary to breaches of confidentiality as possible. Few incidents could actually be documented. Of these, most were due to breaches of confidentiality by private physicians. There were no instances of breaches of confidentiality by health departments. Most commonly, the patient divulged the information to friends or coworkers.[152]

Another rationale for concealing a patient's HIV status was that insurance companies would not insure an HIV-infected person. Insurance companies treat HIV carriers just as they do other persons with a chronic, expensive medical condition. Certainly it is poor public policy to exclude sick people from insurance, but there is no justification for creating special rules to protect HIV carriers while ignoring persons with asthma, multiple sclerosis, and the myriad of other conditions that render a person uninsurable. This attempt to get special consideration for insurance was couched in terms of confidentiality. The physician would protect the patient's confidence by not testing the patient for HIV and by not entering information about HIV status in the patient's medical records. The result would be to deny insurers information that they could use to evaluate the risk of insuring the patient.

[151]Bowers v. Hardwick. 478 US 186 (1986).

[152]ASTHO (Association of State and Territorial Health Officers' report); Guide to Public Heath Practice: Principles to Protect HIV-Related Confidentiality and Prevent Discrimination. 1988.

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