hunter of justice

Show me the money: Wrongful disclosure of HIV status draws little sympathy from Supreme Court

The Supreme Court heard oral argument on Wednesday in Federal Aviation Administration v. Cooper, a case involving the holder of a private pilot's license who sued for mental and emotional distress after the Social Security Administration revealed to the Federal Aviation Administration that he was HIV positive, a disclosure that violated the federal Privacy Act. (Justice Kagan recused herself and did not participate.)

From Huff Post:

...The Privacy Act provides relief for those who suffer "actual damages" from violations of the statute. At the trial court level, U.S. District Judge Vaughn Walker -- better known for striking down California's anti-gay marriage Proposition 8 as unconstitutional -- found that the FAA had violated the Privacy Act. But Walker determined that the term "actual damages" did not include purely psychological injuries that result in no economic loss. In other words, there would be no relief for Cooper.

The U.S. Court of Appeals for the 9th Circuit disagreed with the trial judge and allowed Cooper's claim to go forward. At Wednesday's oral argument, however, only Justices Ruth Bader Ginsburg and Sonia Sotomayor unequivocally championed Cooper's cause as the rest of the Court seemed poised to side with Walker's original decision.

Assistant Solicitor General Eric Feigin, arguing on behalf of the federal agencies, said that the Court's doctrines obligated the justices to narrowly interpret an ambiguous term like "actual damages." Since the Privacy Act itself broadened the privacy rights of individual citizens, Feigin said, it was enough to provide relief for economic damages.

"Then Congress maybe shouldn't have passed this statute," Justice Ginsburg interrupted. The primary injuries caused by invasions of privacy, she said, are not economic. "So you could say that Congress was much more generous than the common law was, but the impact on the person who is suing is not going to be out-of-pocket business loss, pecuniary loss," Ginsburg continued. "It's going to be the embarrassment, the humiliation."

Justice Samuel Alito, on the other hand, was skeptical about Cooper's embarrassment and humiliation, which resulted from his concededly illegal withholding of his HIV status from the FAA. "Are you claiming all of the emotional damages that resulted from his criminal conviction?" Alito asked Cooper's lawyer, Raymond Cardozo.

Justice Antonin Scalia, moreover, found little in the government's unauthorized agency-to-agency disclosure to warrant the distress that Cooper claims to have suffered. The government "just failed, intentionally failed, to follow the very detailed and, as I say, picky, picky prescriptions contained in the Privacy Act," Scalia said. "To say that you get emotional distress for that, as opposed to genuine -- what I would call genuine -- privacy incursions" that make private information public, "is a different question."

Ultimately, the Court's decision will turn less on the source or scope of Cooper's emotional distress and more on how the justices parse the word "actual." Sotomayor, the only justice who once served as a trial judge, questioned Feigin's purely economic definition. "I'm not sleeping, I have a nervous stomach, I'm not eating," Sotomayor said, noting "the typical things that juries look at to determine whether you have proven emotional distress." She asked, "Why is that not actual injury?"

Because, Feigin answered, Congress assigned a commission "to make a recommendation about whether the act should later be expanded to include general damages," a term traditionally understood as non-economic injuries. And the law was not expanded.

In his conclusion, Cardozo responded that Feigin's argument relied on legalistic parsing that "renders this act virtually irrelevant." He urged the Court to "give actual damages its most common and ordinary meaning: proven, not presumed." But by the end of the hour, it was clear that most of the justices had not been convinced by the simplicity of that argument, leaving Cooper and others similarly injured with no remedy under this particular federal law.

Catholic Bishops ratchet up fight against gay rights, birth control, abortion

True to their word, the National Conference of Catholic Bishops has launched a new in-house advocacy group devoted to defending that faith's position on a trio of sexuality-related issues: gay rights, birth control and abortion. In a related move, several Catholic dioceses in Illinois announced that they would stop providing adoption services rather than serve same-sex couples on an equal basis.

From today's N Y Times:

The nation’s Roman Catholic bishops opened a new front in their fight against abortion and same-sex marriage on Monday, recasting their opposition as a struggle for “religious liberty” against a government and a culture that are infringing on the church’s rights.

The bishops have expressed increasing exasperation as more states have legalized same-sex marriage, and the Justice Department has refused to go to bat for the Defense of Marriage Act, legislation that established the definition of marriage as between a man and a woman.

“We see in our culture a drive to neuter religion,” Archbishop Timothy M. Dolan of New York, president of the bishops conference, said in a news conference Monday at the bishops’ annual meeting in Baltimore. He added that “well-financed, well-oiled sectors” were trying “to push religion back into the sacristy.”...

... The bishops issue guidelines for Catholic voters every election season, a document known as “Forming Consciences for Faithful Citizenship,” which is distributed in many parishes. But the bishops were informed at their meeting on Monday that a recent study commissioned by Fordham University in New York found that only 16 percent of Catholics had heard of the document, and only 3 percent had read it.

Nevertheless, the bishops remain a forceful political lobby, powerful enough to nearly derail the president’s health care overhaul two years ago over their concerns about financing for abortion. Last week, the White House, cognizant of the bishops’ increasing ire, invited Archbishop Dolan to a private meeting with President Obama, their second. Archbishop Dolan said they talked about the religious liberty issue, among others.

“I found the president of the United States to be very open to the sensitivities of the Catholic community,” Archbishop Dolan said in the news conference. “I left there feeling a bit more at peace about this issue than when I entered.”

Challenge to USAID anti-prostitution pledge in 2d Circuit

Excerpts from a report by Katherine Franke on the oral argument in Alliance for Open Society International v. USAID:

...[which is] a case brought by the Brennan Center challenging the 2003 Bush era regulations that required any entity receiving USAID under the Global AIDS Act to sign a pledge that “no funds made available to carry out this Act … may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”  22 U.S.C. Sec. 7621(f).  It also prohibits recipients from saying or doing anything that the Government deems “inconsistent with [an] opposition to prostitution,” 75 Fed. Reg. 18,760 (Apr. 13, 2010).

The lawsuit claims that the “anti-prostitution pledge” requires Plaintiffs to espouse the government’s viewpoint on prostitution, conditions Plaintiffs’ eligibility for public funds on holding favored beliefs, and prohibits Plaintiffs from saying or doing anything contrary to the government’s viewpoint with their private funds...

The government itself has trouble explaining exactly what recipients of Global AIDS Act money must do to comply with the pledge, assuming they’re willing to sign it.  The government has said that beyond a prohibition on advocating for a ban on legalization of sex work, the pledge may, MAY, also include a ban on advocating for a reduction in penalties for sex work, or even helping sex workers unionize.  So too, any work helping sex workers to prevent police abuse might also violate the act if were merely a fig leaf for legalization.  Worse yet, even using the term “sex work” or “sex worker” might violate the Act since the underlying politics of these terms might indicate support or legalization.

Read the complaint and other documents in the lawsuit describing the real and anticipated problems that health advocates working with sex workers, oops, prostitutes will have in both accomplishing their harm reduction mission and complying with the pledge.  They’re all available here.

In 2006 the plaintiffs won in the trial court – opinion here – and it’s been up and back to the Second Circuit, and the argument today was on whether the Obama Administration’s April 2010 interpretation of the pledge requirement cured the pledge of any constitutional problems.

Hearing the case were Judges Chester J. Straub, Rosemary Pooler, and Barrington Parker Jr.  Arguing for the Brennan Center was Rebekah Diller and for the government was Ben Torrance (Columbia Law School ‘00).

Shortly after Torrance got started he was interrupted by Judge Parker who asked him: “Could the government require organizations to write into their charter that marriage is between a man and wife, on the grounds that a major spread of AIDS is homosexual conduct?”

Torrance hemmed and hawed, and returned the discussion to the government’s judgment that there is a strong causal relationship between prostitution and HIV transmission.

Shortly thereafter Parker lept in again: “What does it mean to oppose prostitution?  If OSI works in the back streets of Mumbai, can it work with street workers and organize them not to work with customers who don’t use condoms?...Must an OSI intern on the streets of Mumbai cable Washington to get ok before proceeding in her work?”

Elimination of ban on HIV+ travelers entering US may come very soon

Pink News is reporting that -

A memo has been released by the United States Customs and Immigrations Service which suggests the year-long wait for the HIV travel ban may be nearly over. The CIS's communication instructed employees working on green card applications that would be determined solely by the applicant's HIV status to wait until the expected change in immigration rules.

Currently HIV qualifies as an exclusionary communicable disease, and applications may be turned down by the US authorities if a person wishing to travel to the country, or settle there permanently, is HIV positive.

The policy was overturned [legislatively] last year ..., but the Bush administration did not enact the [necessary] new rules before leaving office. [HHS] published [proposed] regulations this summer, and is currently reviewing public comment.

Commentators have suggested that the pausing of green card applications which come down to the applicant's HIV status is a strong indicator that the rule change will be implemented soon, and that HIV will be removed from the list of exclusionary communicable diseases.

Background here.

New structural intervention strategies for AIDS prevention emerging in San Francisco

The Stop AIDS Project in San Francisco has begun presenting initial findings from its Where study, which it undertook in conjunction with the University of California San Francisco, the San Francisco Department of Public Health and the California STD/HIV Prevention Training Center.

From Bay Area Reporter:

... [T]he Where study ... collected feedback from nearly 200 one-on-one conversations – mainly with local gay men – concerning different ways to improve the environments of local bars, sex clubs, and cruising Web sites to create an atmosphere more conducive to safer sex.

This approach to HIV and STD prevention, known as structural intervention, is pioneering in that it places an emphasis on making changes at high-risk venues as a means to reduce the number of infections. It's more common that prevention strategies focus on altering high-risk behavior of individuals, not places.

Eventual structural intervention programs may include creating easier access to free water in bars, promoting Web sites for "protected sex only," or providing wrist bracelets at sex clubs reflecting sexual preference, desired acts, positions, or HIV status. The Where study includes over 50 such suggestions, all of which will be further evaluated before any pilot programs are implemented.

Jen Hecht, education director at Stop AIDS, said that the concept of structural intervention has seen notable success on a larger scale. For example, seatbelt laws are considered a structural intervention, as are policies allowing the addition of fluoride to public tap water to prevent tooth decay. Hecht and her team members are focusing on local solutions that use the same concept; creating practices beneficial to a broad spectrum of the community, without increasing the burden placed on any individual.

"A guiding question for this project was what if we could reduce the chance of someone getting HIV or STDs without changing the frequency of condom usage?" Hecht told an audience of about 20 who gathered August 17 at the LGBT Community Center for the agency's community report on HIV data.

While Stop AIDS will continue running and developing its other programs, including those focusing on safer sex practices for individuals, the staff is introducing the new approach as a complement to these programs. Stop AIDS reported that it is the first organization of its kind to be conducting an expansive exploratory study of the concept.

"Structural interventions are not new in public health discourse, but they are new in HIV prevention," said Executive Director Kyriell Noon. "Given the fact that the number of new HIV infections in San Francisco appears to have reached a plateau, we need to do something different to effect change.

Will new constitution in Zimbabwe decriminalize homosexual conduct?

Led by the fiercely anti-gay Robert Mugabe, Zimbabwe has long been a nightmare for lgbt people.  Male homosexual sexual conduct is illegal there, a status reaffirmed by the nation's highest court in a prosecution of one of Mugabe's predecessors, Canaan Banana [S. v. Banana, 2000(3)SA 885 (ZS)].

This summer, however, meetings have been ongoing to draft a new constitution. Anti-democracy thugs disrupted the conference last month, but it then resumed. Given that Mugabe is still in power, it may be unrealistic to expect that the drafting project will lead to anything more than words on paper. If the process does continue to completion, though, there will be a referendum on the new constitution next year.

AIDS and lgbt activists have been seeking to invoke the kinds of protection against discrimination based on sexual orientation found in the South African constitution to achieve greater legal protection in Zimbabwe.

According to this dispatch from the Guardian, they plan to use the argument that criminal laws impede efforts to fight AIDS, an urgent issue there and throughout Africa, and the subject of a keynote speech at last year's International AIDS Conference:

Gay men and lesbians in Zimbabwe are hoping for an end to years of "hysterical homophobia" by having their rights enshrined in the new constitution.

Sexual acts between men are outlawed in the socially conservative country (there is no legal reference to women) and the president, Robert Mugabe, has encouraged a climate of hostility by condemning homosexuality, describing it as a western import.

His opponents in the Movement for Democratic Change are more supportive of gay rights, raising hopes that Zimbabwe's constitution could follow that of South Africa, the first in the world to specifically outlaw discrimination on the grounds of sexual preference.

Keith Goddard said the group Gays and Lesbians of Zimbabwe (GALZ) – of which he is director – had tried twice to get sexual orientation included in the constitution.

"Now, with the new constitutional review, we are pushing again for sexual orientation," he said. "The National Aids Council has moved forward enormously from its original policy, and in its strategic plan for 2006-10 it specifically calls for the decriminalisation of homosexuality because punitive measures have simply driven the community underground and make this hidden population difficult to reach.

"So I think we can use it on the grounds of health and HIV/Aids interventions to try and argue the issue. Arguing it on religious or moral grounds is not going to get it anywhere. We live in hope. I think we've probably got a 50:50 chance."

End is near for the HIV travel ban

The period closes tomorrow for commenting on proposed new regulations from HHS that would finish the job (started last year) to fully repeal the ban on HIV-positive travelers entering the U.S. The group Immigration Equality has submitted two letters in support of the new regs, one signed by more than 300 organizations and the other by almost 4,000 individuals. Signers on the organization letter include non-U.S. as well as U.S. AIDS service groups, the United Methodist Church, and - thanks, Donna! - the University of Miami. All of the comments being submitted are available on the HHS/CDC web page.

With this administration in office, there should be no question about the outcome - the HIV ban is toast. The next stage in the process is that HHS will review all comments and then publish the final reg, possibly revised in light of the comments.  The law sets no deadline for when that must happen, but I would bet that we'll be rid of this AIDSphobic leftover by Christmas.

Pathbreaking Colorado law allows meaningful choices for designating beneficiaries

A huge HT to Nancy Polikoff, who has blogged (twice) about a remarkable new Colorado Designated Beneficiaries law that allows any two persons (not just couples) to file a list of preferences covering 15 separate benefits and protections that could arise around illness and death. Each individual simply checks off which benefits she wishes for the other person to receive. The form is then filed with the county clerk. It remains in effect until revoked or superseded. This process obviates the need for a will or power of attorney (at least within the state), and maximizes individual choice.

Here is how the form, which you can find at pp 9-11 of the law, begins:

WE, ____________________(name and address) REFERRED TO AS PARTY A, AND _________________ (name and address) REFERRED TO AS PARTY B, HEREBY DESIGNATE EACH OTHER AS THE OTHER'S DESIGNATED BENEFICIARY WITH THE FOLLOWING RIGHTS AND PROTECTIONS GRANTED OR WITHHELD AS INDICATED BY OUR INITIALS:

Each party then initials in columns for Party A or Party B whether to grant or withhold a series of rights, including the following:

• The right to be designated as beneficiary or dependent for health and life insurance;
• The right to be designated as beneficiary or dependent in a retirement or pension plan;
• The right to petition for and have priority for appointment as a conservator or guardian;
• The right to visit in a hospital or other health care facility;
• The right to make medical decisions for the other party, to be notified of withdrawal of life-sustaining procedures, and to direct the disposition of last remains;
• The right to inherit real or personal property through intestate succession; and
• The right to have standing to sue for wrongful death or to receive workers comp benefits.

Where these provisions conflict with a federal law (like DoMA or ERISA), they will probably not be honored. Some particulars could get complicated.  But in most situations, the designations should hold. Colorado has taken a giant step forward in reforming the interaction between a state and its citizens on issues of relationship recognition.

Profile of newly-appointed Justice Cameron

The NY Times today (finally) reported the selection of openly gay judge Edwin Cameron as a justice of South Africa's highest court, in a feature story that highlights his history as a fighter for the rights of other people with AIDS to gain the access he has had to life-saving drugs. (My eariler post on his work is here.)

Not to belabor the point, but ... one thing that the new administration must step up to the plate on, soon, is remedlying the total absence of openly lgbt appellate judges in the federal system. They haven't shown much concern yet with lgbt representation in other appointments, so I hope someone in the judicial nominations process is heeding Lambda's letter about the importance of judicial selection.

Openly gay man appointed to South Africa's highest court

In a genuinely pathbreaking act, South African President Mothlanthe has appointed Edwin Cameron, a justice on the Supreme Court of Appeal, as a judge of the Constitutional Court, the highest court in South Africa. Judge Cameron becomes the first openly gay man or woman ever appointed to a nation's highest court.  HT to Robert Wintemute, who noted in an e/mail that Justice Michael Kirby of Australia has served as an openly gay member of that country's highest court, but was not out when he was appointed.

A former Rhodes Scholar who became a human rights lawyer, Judge Cameron is the co-author of several books, including Witness to AIDS, a memoir about his experiences as a person living with AIDS, and Defiant Desire: Gay and Lesbian Lives in South Africa.  During his time on the Court of Appeal, he has been a leader in developing that nation's civil rights and liberties jurisprudence.

Last summer, Judge Cameron addressed the International AIDS Conference in Mexico, arguing that homosexual sexual conduct should be decriminalized throughout the world, as a necessary step in fighting AIDS. (video here) He is the co-author (with Scott Burris - Temple Law) of a scholarly paper elaborating that argument.

This is an extraordinary moment, one of those historic firsts that actually matter. By contrast, the U.S. has only one openly lesbian federal judge - the wonderful Debbie Batts in the Southern District of New York.  But - There are no openly gay or lesbian federal judges at the appellate level anywhere in the U.S.

Four years from now, I hope that number will be much higher.

Bush signs Feldblum bill

OK - so that's not really the name of the bill.  Its real name is the ADA Amendments Act. But the President is set to sign it this morning.  And I'm taking the liberty of giving it my girlfriend's name because I know how many hours of work went into it -- not just on her part, of course, but hey, this is my blog, so I get to play around with it.

The basic thrust of the bill is to reinstate coverage for certain groups of people with disabilities whose protection under the original ADA was essentially interpreted out of existence by the federal courts. For example, under the ADAAA, the use of medication and devices such as hearing aids cannot be used as the basis for ruling that the person does not have a disability. This reverses Sutton v United Airlines, 527 U.S. 471 (1999) (and two other cases), which held that persons who used mitigating measures no longer fell within the statute's definition of disabled, and so could be discriminated against based on their disability. (Alice in Wonderland, anyone?) The ADAAA will have a major impact on people with conditions for which medication and other treatments are available, such as epilepsy, HIV/AIDS, diabetes, and certain forms of mental illness.

In another change that I noted in a previous post, people with HIV/AIDS will be among those helped by a clarification that impairments to the functioning of the immune system are included in the definition of what constitutes "a major life activity." The ADAAA adds several other physiological functions to the explicit statutory language as well, such as the endocrine and neurological systems. Moreover, the new law rejects the "strict and demanding" standard set by the Supreme Court for defining the phrase "substantially limits" as applied to major life activities.

The ADAAA will have a broadly beneficial effect. Although I am highlighting the ramifications for people with HIV/AIDS because this blog is focused on issues related to sexuality, its scope is much more capacious.

The new amendments take effect next January 1. For further details, see the comprehensive ArchiveADA web site.

Congress amends ADA

Yesterday the House of Representatives passed the ADA Amendments Act, adopting the Senate version of a bill which will rectify many of the crabbed interpretations of the Americans with Disabilities Act in recent years. This is a huge step forward for all disabled persons, including people with AIDS and HIV. Among the many barriers erected by some federal judges for HIV patients has been a narrow definition of "disability," such that HIV infection did not meet the standard of limiting a major life activity unless the plaintiff could prove that he or she was prevented or severely restricted from having children.

In a floor statement during yesterday's debate, Rep. Tammy Baldwin emphasized the importance of the bill to people with HIV, citing cases in which the current interpretation of the statutory language has blocked anti-discrimination protection. See Carrillo v. AMR Eagle, 148 F. Supp. 2d 142 (D.P.R. 2001); Gutwaks v. American Airlines, 1999 WL 1611328 (N.D. Tex); and Blanks v. Southwest Bell Communications, 310 F.3d 398 (5th Cir. 2002). Baldwin's full statement appears in the Congressional Record for September 17 at H8297-8298.

The ADA Amendments Act corrects this problem by specifically listing "functions of the immune system" as an example of what Congress intended to cover when it passed the ADA in 1990 and what will now be explicitly covered under the new language.

President Bush has announced that he will sign the legislation.

Resources from the AIDS Conference

The International AIDS Conference, which ended Friday in Mexico City, always provides a massive amount of new knowledge to those who attend.  Even if you did not make it to Mexico, however, you can take advantage of the conference coverage at the Kaiser Family Foundation web page, which includes videos and transcripts of plenaries, interviews with officials, and daily reports describing new research.

For example, you can watch a video of the presentation by Justice Edwin Cameron of the South Africa Supreme Court of Appeal. Justice Cameron argued for decriminalization of consensual sexual activity as a necessary step in preventing HIV transmission. See the hoj previous post, with a link to the article making the case more fully, co-authored with Scott Burris (Temple Law) and South African human rights lawyer Michaela Clayton, available on SSRN. There is also NY Times coverage of the speech.

Decriminalization of sexual behavior as a human rights issue

Concurring Opinions

Against Criminalization of Sexual Behavior
posted by Scott Burris

The first salvo against criminalization has been fired at the XVII International AIDS Conference in Mexico City. In this week's issue of JAMA, Edwin Cameron and I have called for the international community to take a clear stand against criminalization. Cameron, an openly gay and openly HIV+ South African judge, has been called by no less than Nelson Mandela "one of South Africa's new heroies." We argue that criminal law cannot draw reasonable, enforceable lines between criminal and non-criminal behavior, nor protect individuals or society from HIV transmission. In the protection of women, it is a poor substitute for policies that go to the roots of subordination and gender-based violence. The use of criminal law to address HIV is inappropriate except in rare cases where a person acts with conscious intent to transmit HIV and does so.

The paper is available on the JAMA website, but not for free. A longer version, written with human rights lawyer Michaela Clayton, is availalable on SSRN.

One more hurdle to lifting HIV immigration barrier

President Bush has signed into law a repeal of the statutory ban on foreign nationals with HIV/AIDS entering the U.S.

The next and final step in removing this policy requires the Department of Health and Human Services to remove HIV from its regulation listing "communicable diseases of public health significance." 42 CFR 34.2(b).     No word yet on whether the Bush Administration will finish the job, or whether we will have to wait until next year to move this forward.  (Obama has said that he will remove the ban; McCain has not committed himself.)

For more of the background and history on this issue, check out the interview with Victoria Neilson, legal director of Immigration Equality, on The Slippery Slope, a new legal podcast hosted by Assistant Professor Meredith Miller.   Her podcasts on a variety of high visibility legal issues add a nice twist on law blogs and a creative use of the web.  And - I can't help but note - she's a former student of mine. Mazel tov!