Gay and lesbian community-based civil rights and HIV-AIDS organizations joined in a broad coalition that demanded sweeping civil rights legislation protecting individuals with disabilities, including persons with HIV and AIDS. The Americans with Disabilities Act, signed into law in 1990, includes as protected those persons who are HIV-positive or who have AIDS.

Enacted on July 26, 1990, the Americans with Disabilities Act (ADA) provides legal protection against discrimination for individuals with disabilities in a wide range of settings, including employment and public accommodations. It also includes provisions for access to services. [kw]Americans with Disabilities Act Becomes Law (July 26, 1990)
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Burton, Dan
Chapman, Jim
Feldblum, Chai
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Helms, Jesse
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Passage of the ADA was the result of a broad coalition, including Patrisha Wright of the Disability Rights Education & Defense Fund and Ralph Neas of the Leadership Council on Civil Rights. Chai Feldblum, a lawyer with the American Civil Liberties Union (ACLU), was a key architect of the legislation, while Tim McFeely of the Human Rights Campaign Fund (now called the Human Rights Campaign), a gay lobbying organization, and Jean McGuire and Tom Sheridan of the AIDS Action Council were the leading representatives for those with HIV-AIDS. Senator Ted Kennedy’s chief staff member on HIV-AIDS issues, Michael Iskowitz, also had a prominent role in the ADA’s passage.

Although intended to provide broad protection to all persons with disabilities, the ADA also was a response to the HIV-AIDS epidemic, in its eighth year when the ADA was introduced in Congress in 1989. Widespread discrimination against people with HIV-AIDS resulted in recommendations, such as that of the Presidential Commission on the Human Immunodeficiency Virus Epidemic (1988), Presidential Commission on the Human Immunodeficiency Virus Epidemic
Human Immunodeficiency Virus Epidemic, Presidential Commission on the for strong legal protection. A bill that would have protected from discrimination only individuals with HIV, but not other disabilities, was introduced in 1987 but did not have adequate support. Instead, HIV-AIDS advocates joined with other disability rights advocates to pass the ADA.

The ADA received significant bipartisan support in Congress as well as support from the administration of President George H. W. Bush. Bush, George H. W. Some conservative legislators, however, attacked the ADA because it included protection for persons who had what many conservatives considered disabilities that were morally objectionable. Ultraconservative Republican senator Jesse Helms, a leading opponent of gay and lesbian rights, objected to the ADA’s inclusion of, in his words, “people who are HIV-positive, most of whom are drug addicts or homosexuals or bisexuals.” Representative Dan Burton opposed the ADA because it was, according to him, “a last ditch attempt of the remorseless sodomy lobby to achieve its national agenda before the impending decimation of AIDS destroys its political clout.”

Despite these objections, Congress rejected amendments to the bill that would have excluded homosexuals or bisexuals with HIV-AIDS. Congress did agree, however, to amendments that excluded “transvestism,” transsexualism, and gender-identity disorder from protection. While the U.S. Senate initially included homosexuality and bisexuality in this same list, the House of Representatives concluded that homosexuality and bisexuality are not impairments and therefore are not disabilities. These amendments were necessary for passage of the ADA. While the provision regarding homosexuality and bisexuality is legally insignificant because such identities are not covered as disabilities under the ADA, the provisions excluding “transvestism,” transsexualism, and gender-identity disorder are legally significant.

During final consideration of the ADA, Representative Jim Chapman introduced an amendment that allowed individuals with “an infectious or communicable disease of public health Health and medicine;Americans with Disabilities Act significance” to be excluded from jobs involving food handling. This was intended to allow employers to exclude employees with HIV. Because there is no risk of HIV transmission in food preparation, this provision would have perpetuated the unfair prejudice that the ADA was intended to end. At a White House meeting in which Tim McFeely, McGuire, and Sheridan represented the AIDS community, ADA supporters agreed that if the food handler provision were included, they would withdraw their support, thus killing the ADA. This dispute was resolved, however, when Senator Orrin Hatch introduced a compromise amendment drafted by ACLU lawyer Feldblum. The compromise required the secretary of Health and Human Services to issue a list of infectious diseases that can be transmitted by food handling. (HIV has never appeared on that list.) The Hatch amendment was accepted, the ADA passed Congress, and President Bush signed it into law on July 26, 1990.

The Americans with Disabilities Act has been widely hailed as the “Bill of Rights” for people with disabilities. Before the ADA, federal protection against disability-based discrimination was limited to federal agencies, federal contractors, or recipients of federal financial assistance. After the ADA, protection extended far more widely, taking within its sweep private-sector employers, businesses such as restaurants and hotels, professional offices such as those of physicians and attorneys, and transportation and communication services.

The ADA’s definition of “disability” is not specific to any medical condition but is instead generic. Under the ADA, a person has a disability if he or she has a physical or mental impairment that results in a substantial limitation on a major life activity. The ADA not only protects persons with actual disabilities; it also covers persons perceived to have a disability or who have a record of having a disability but in fact are not disabled. For example, a man fired from his job because his employer believes he has AIDS, when in fact he does not, is nevertheless able to sue his employer for discrimination under the ADA.

Much to the disappointment of its proponents, the ADA often has been interpreted narrowly by the courts. In 1998, the U.S. Supreme Court ruled in Bragdon v. Abbott
Bragdon v. Abbott (1998)[Bragdon v Abbott] that asymptomatic HIV infection is a disability based on the plaintiff’s inability to bear children because of her HIV infection. Although judicial interpretation of the ADA is sometimes narrower than that intended by Congress, the ADA has nevertheless had a profoundly positive impact on the lives of individuals with HIV-AIDS and others with disabilities. Americans with Disabilities Act (1990)
Disabilities Act, Americans with (1990)
HIV-AIDS[HIV AIDS];and Americans with Disabilities Act[Americans with Disabilities Act]

• Colker, Ruth. “The ADA’s Journey Through Congress.” Wake Forest Law Review 39, no. 1 (2004).
• Feldblum, Chai. “The Art of Legislative Lawyering and the Six Circles Theory of Advocacy.” McGeorge Law Review 34, no. 785 (2003).
• National Council on Disability. “Equality of Opportunity: The Making of the Americans with Disabilities Act.” July 26, 1997. http://www.ncd .gov/newsroom/publications/1997/equality.htm.
• Webber, David W. “Legislative History in Regard to HIV.” In AIDS and the Law, edited by David W. Webber. New ed. New York: Aspen, 2005.
• Wright, Patrisha. “When to Hold ’Em and When to Fold ’Em: Lessons Learned from Enacting the Americans with Disabilities Act.” Disability Rights Education and Defense Fund. http://www .dredf.org/international/paper_w-w.html.

June 27, 1988: Report of the Presidential AIDS Commission

December 17, 1991: Minnesota Court Awards Guardianship to Lesbian Partner

1994: Employment Non-Discrimination Act Is Proposed to U.S. Congress