Legal Protections for People Living With HIV

More than one million people in the United States are living with Human Immunodeficiency Virus (HIV). Medical researchers have made great strides in HIV prevention and treatment, and HIV/AIDS is not as much of a public health crisis as it once was. But people living with HIV (PLHIV) continue to face discrimination at work, in medical settings, and in public spaces.

This article provides an overview of HIV-related discrimination those in the LGBTQ+ community might face and what federal legal protections they have.

What is HIV?

HIV is a virus that attacks the body's immune system and destroys critical cells used to fight disease and infection.

There is currently no cure for HIV. But PLHIV can control their symptoms through medication and live long, healthy lives. Medication can help lower the viral load lower to "undetectable" levels. This means a test will not be able to detect HIV, and the risk of transmitting HIV through sex is close to zero. But, if not treated, HIV infection can lead to Acquired Immunodeficiency Syndrome (AIDS).

HIV is transmitted through certain bodily fluids, such as semen, blood, and vaginal discharge. It does not spread via saliva, sweat, tears, or touching. Most people get HIV through anal sex, vaginal sex, or by sharing needles during drug use.

The Centers for Disease Control and Prevention (CDC) provides detailed information about how HIV is (and is not) transmitted.

Discrimination Against People Living with HIV

There are still misconceptions about the transmission of HIV and what it looks like to live with HIV.

Some persistent myths about HIV include:

• HIV only being contracted by men who have sex with men (MSM)
• HIV spreading through sharing a drink or using the same toilet
• HIV being transmitted through the air

MSM is a term often used in the medical field. But, it does not properly account for gender and often inappropriately includes transgender women.

PLHIV might face prejudice in various areas of their life, including employment discrimination. People living with HIV and AIDS might experience issues with:

• Blood donation restrictions
• Refusal of care by healthcare providers
• HIV testing without consent
• Confidentiality violations in healthcare settings
• Denial of housing due to positive HIV status

Of course, this list is not exhaustive. A person could experience discrimination in their personal life and everyday interactions in ways that are outside the realm of legal protection. We discuss blood donation restrictions in more detail below.

Blood Donation Restrictions

During the early stages of the HIV/AIDS epidemic, the Food and Drug Administration (FDA) implemented a lifetime ban on blood donation by gay men. This included individuals who were not HIV-positive. Although HIV testing technologies greatly improved over the years, it remained very difficult for many in the LGBTQ+ community to donate blood.

In 2015, the FDA issued guidance reducing the lifetime ban to a 12-month deferral based on a person's recent sexual history.

Five years later, the COVID-19 pandemic caused a shortage of blood. In response, the FDA released updated guidance that reduced the 12-month deferral period to 3 months.

In May 2023, the FDA issued new guidance removing the ban on blood donations from MSM. Instead, it provides risk-based eligibility questions for individuals to answer when they offer to donate blood. The guidelines only prohibit blood donation by those who have had anal sex with a new sexual partner or more than one sexual partner in the last three months. 

In 2014, the Williams Institute estimated that lifting the ban “could increase the total annual blood supply in the United States by 2-4%." That amount of blood could help save over one million lives per year.

What Laws Protect People Living with HIV?

Several federal laws protect people living with HIV. They fall into two broad categories: Anti-discrimination laws and privacy laws.

Anti-Discrimination Laws

Section 504 of the Rehabilitation Act of 1973 prohibits organizations that receive federal funds from discriminating based on disability. Having HIV is considered a disability under Section 504. Therefore, the law protects PLHIV from denial of services in places like:

• Doctor's offices
• Drug treatment centers
• Hospitals
• Public housing
• Public pools or gyms
• Social service agencies

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination by employers, state and local governments, and businesses open to the public. It also protects the friends and family of PLHIV from discrimination.

The Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) enforces these federal civil rights laws.

Other agencies that handle discrimination complaints include:

• U.S. Department of Education's Office for Civil Rights
• Equal Employment Opportunity Commission (EEOC)
• U.S. Department of Housing and Urban Development's Office of Fair Housing and Equal Opportunity

If you believe you have been discriminated against in a healthcare or human services setting, you can file a complaint with OCR. A complaint can be filed in written form to the appropriate OCR regional office or by filling out the Complaint Form within 180 days.

Privacy Laws

The OCR also enforces the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPA protects the privacy of your health status and limits who can view and access your health information.

If you believe your privacy rights are being violated, you can file a complaint with HHS within 180 days of when you found out the incident occurred.

Some examples of HIPAA violations involving HIV are:

• Information about HIV being shared with you in a public area, such as a waiting room
• Discussion of your HIV status being held within hearing range of other patients
• Your medical records disclosing your HIV status being left where others can see them

If you believe you are being discriminated against due to your HIV status, keep a record with as much information about the incident as possible.

Getting Legal Help

If you need guidance in navigating these laws or your state's laws, an attorney can help. A civil rights lawyer or health care lawyer can explain the protections provided above, along with any additional protections your state may provide.