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AIDS: ACLU takes on the tough cases, including HIV/AIDS
by Erica Demarest, Windy City Times
2012-04-04

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A teacher fired from her post.

A staffer booted from the mayor's office.

Children segregated at school.

As AIDS hysteria swept the nation in the early 1980s, the American Civil Liberties Union ( ACLU ) of Illinois stepped up to the plate with bold, decisive litigation that helped shape Illinois' response to a growing epidemic.

The longstanding nonprofit established civil-rights protections with landmark cases, and in 1984, helped draft the nation's first law to expressly protect the rights of HIV-positive individuals.

"We tend to do cases that establish the law," said Harvey Grossman, ACLU legal director. "And when we started in the mid-'80s, there was no body of law [ around HIV/AIDS ] . That was up for grabs."

In the early years, Grossman said, fear of transmission was the leading cause for discrimination. The Centers for Disease Control ( CDC ) had not yet established protocols, and few people understood the deadly virus.

"It was a very difficult time for people who were trying to do anti-discrimination work," Grossman said, "because you have to work on the basis of medical opinion. What was dangerous? What wasn't dangerous, in terms of potential transmission? There were just lots of unknowns."

Grossman recounted one of the ACLU's first cases. In 1984, a young HIV-positive boy in the metro East St. Louis area was thrown out of public school buildings and segregated due to his status. The child was forced to complete his schoolwork alone in a trailer in the parking lot.

"There were actually people in the medical community who were prejudiced," Grossman said. "I don't know where their lack of scientific reliance came from, but they just threw science to the wind and were overcautious based on fear … . We would see doctors who were totally out to lunch."

To counter the doctors' erroneous testimonies in court, the ACLU enlisted its own court-appointed experts: prestigious doctors, heads of infectious disease departments at hospitals and universities, and medical school professors.

"That became the vehicle we started to use in doing that work," Grossman said.

Another measure was the ACLU's AIDS Advisory Panel. It brought together science, law and policy experts with the goal of drafting protective legislation. Dr. Bernard Turnock, former head of the Illinois Dept. of Public Health, was a prominent member.

In 1984, the panel helped draft the Illinois AIDS Confidentiality Act, the first law in the U.S. to expressly protect the rights of HIV-positive individuals.

Grossman and Associate Legal Director Benjamin Wolf continued to work on AIDS-related legislation throughout the 1980s. The duo focused on cases involving employment discrimination and medical privacy breeches, but soon became overwhelmed by the deluge of complaints.

By 1988, it became obvious that the ACLU needed at least one full-time HIV/AIDS attorney. Promising young lawyer John Hammell was brought into the fold, and the AIDS and Civil Liberties Project was born.

"One of John's strengths was connecting somewhat esoteric legal theories with the real human impact of protecting those civil rights," Executive Director Colleen Connell said.

With Harvard-educated Hammell at its helm, the fledgling project took on ambitious cases. In 1989, it boasted 11 major items on its docket. These ran the gamut from dental discrimination and criminal prosecution to school harassment and illegal dismissals of government employees.

One high-profile case involved the Chicago Police Department. New applicants were required to go through HIV testing as part of the application process. Those who tested positive were booted from the program.

Though the ACLU of Illinois won an impressive number of cases—changing several legal precedents in the process—the work was taxing.

"It was very painful for staff because our clients were dying," Grossman said. "They hadn't worked out the cocktails yet, and basically, you went to this stage of full-blown AIDS … . It was hard to see your clients suffer."

AIDS-related discrimination was particularly agonizing, Grossman said.

"It's different than gender and race discrimination," he said. "These acts of discrimination were overt. No one was hiding their discriminatory intent. They were doing these things to people openly, blatantly and contrary to both science and law. That made it particularly painful to people."

By the early- to mid-1990s, the AIDS and Civil Liberties Project's workload decreased fairly dramatically. Several celebrities came out as being HIV-positive, and media discourse began to catch up to medicine.

"The public opinion really started to turn, and we saw somewhat of a diminution of the overt hostility," Grossman said. "As the law started to get established, we had to do fewer and fewer test cases. Our office is not a high-service office … . Once the law's established, we expect that other service agencies will start taking advantage of that law to do individual cases."

As the AIDS Legal Council and other local organizations took the reigns, the ACLU slowly started accepting fewer AIDS cases each year.

Hammell, who was openly gay, worked on a mix of LGBT and AIDS cases until his death in 1995. Grossman continues to serve as the ACLU's legal director.

Today, the ACLU of Illinois continues to work on HIV/AIDS cases in a much smaller capacity with a focus on education, advocacy and impact litigation. Current efforts include pushing for comprehensive sex education, which could reduce HIV transmission rates, and striving to repeal a handful of discriminatory HIV/AIDS laws held over from the 1980s and 1990s.

To learn more about the ACLU of Illinois, visit www.aclu-il.org .

[ Windy City Times featured John Hammell, a gay attorney for the ACLU in the 1990s, in last week's AIDS @ 30 section. The longer version of that feature is online at www.windycitymediagroup.com/lgbt/AIDS-Attorney-John-Hammell-He-fought-the-good-fight/36979.html . ]

This story is part of the Local Reporting Initiative, supported in part by The Chicago Community Trust.


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