Fall 2004 Human Rights Magazine

By David I. Schulman

HIV legal checkups are a prime example of a new public health law field that has emerged from the AIDS epidemic—health and human rights. In the mid-1980s, public health and AIDS civil rights seemed on a collision course. But when the Los Angeles City Attorney established the nation’s first AIDS discrimination unit in 1986, we were committed to demonstrating that this need not be the case.

Our unit was created to enforce the world’s first AIDS antidiscrimination law, enacted by the city of Los Angeles in 1985. Los Angeles Municipal Code §§ 45.80 et seq. We soon detected a pattern in the cases we investigated: virtually every one began with an unnecessary disclosure. A complainant might have shared his status with a supervisor in the mistaken belief that his employer had a legal right to know, or opened up to a neighbor expecting friendship. Instead he suffered harassment, termination, or eviction. If only he had received legal counseling about his right to keep his condition private before such disclosures, such discrimination could have been prevented altogether.

We soon called this idea an HIV legal checkup. The concept was simple: HIV-positive people needed legal counseling as soon as possible after learning their test results. The counseling would provide information on disclosing their status only to those who had a legal need to know, thus preventing discrimination in employment, housing, and public accommodation.

Sadly, we lacked the resources to create such a program. Enter Brad Sears, who contacted us in spring 1996. Sears was finishing a federal clerkship and wanted to practice HIV law. He wrote a grant proposal that expanded our concept into a more comprehensive client intake strategy that covered the full range of HIV-related legal issues such as denial of benefits, tenant rights, immigration, family law, and debtor-creditor conflicts as well as our initial discrimination prevention idea. In spring 1997, Sears’s new project became part of a new Los Angeles-area HIV legal services program, the HIV & AIDS Legal Services Alliance (HALSA).

When Sears, now a UCLA law professor, later evaluated his project, he identified several elements with implications not only for HIV legal services delivery but poverty law service delivery generally. Law students could perform the checkups, ensuring a steady stream of volunteers. The comprehensiveness of the checkups meant that checkup staff identified incipient legal problems before they became crises. The client education component empowered clients to resolve many such problems themselves. Those requiring intervention required less attorney time than had the issues first metastasized, enabling HALSA lawyers to meet the needs of more clients.

Later client services also benefited from the checkups. Because of the client education component, clients identified subsequent needs more quickly. They called more promptly because they associated HALSA with the positive experience of their checkup. The checkup intake interviews produced yet another benefit, the creation of a database that served as a de facto ongoing needs assessment tool that helped HALSA’s director to identify newly emerging client needs such as immigration or tax relief. HIV legal checkups also have implications for health and human rights, the newly emerging field of public health law:

1. HIV legal checkups improve access to healthcare. When legal checkups protect employment, they preserve private health insurance. When they protect public benefits, they preserve access to publicly financed care. And when they protect renters’ rights, they preserve the stability essential for taking life-saving medications and attending doctors’ appointments on time.

2. HIV legal checkups may slow the spread of HIV. Fear of discrimination discourages voluntary testing. As legal checkups reduce discrimination, we believe more people will come forward to be tested, a vital element in slowing the epidemic. In 2001, the U.S. Centers for Disease Control and Prevention (CDC) adopted our office’s recommendation that the discrimination prevention core of legal checkups be included as an element in the agency’s Revised Guidelines for HIV Counseling, Testing, and Referral. 50 MORBIDITY AND MORTALITY WEEKLY REPORT, No. RR-19, Nov. 9, 2001, at 37, available at www.cdc.gov/mmwr/PDF/rr/rr5019.pdf. In so doing, the CDC acknowledged for the first time the role of attorneys in combating HIV, affirming the health and human rights perspective that civil rights and public health work best together, not in conflict, to ensure the well-being of all.

David I. Schulman is supervising attorney of the AIDS/HIV Discrimination Unit in the Office of Los Angeles City Attorney Rockard J. Delgadillo. In 1986, he became the nation’s first full-time government AIDS attorney.

As published in Human Rights, Fall 2004, Vol. 31, No. 4, p.18-19.