Forty Years of HIV: The Intersection of Laws, Stigma, and Sexual Behavior and Identity

Forty years after the Centers for Disease Control and Prevention’s (CDC’s) June 1981 Morbidity and Mortality Weekly Report about five gay men with a syndrome that came to be called AIDS, both the impact of HIV and the legal landscape in the United States for the most affected population have changed dramatically. Laws, policies, and how they are enforced reflect the values and prejudices of society, and laws can help or hinder public health efforts, regardless of intent. From the outset, HIV aroused widespread fear and new stigmatizing laws and policies, and the crisis revealed injustices in existing laws that compounded stigma and health disparities among the most affected groups. In the 1980s, HIV engulfed already stigmatized communities of gay and bisexual men and other men who have sex with men (MSM) and people who inject drugs. The CDC’s HIV surveillance reports show that, throughout the epidemic, MSM have constituted the majority of annual and prevalent cases, and the burden on racial or ethnic minority MSM has increased disproportionately since the early 1990s.¹ It is timely to reflect on the intertwining of HIV, laws, stigma, and inequity in the United States and their intersection with the lives of gay and bisexual men (both cisgender and transgender).

Since its beginnings, the US legal framework defined homosexual sex or relationships as criminal, inferior, aberrant, and worthy of discrimination.² Throughout most of the 20th century, sexual stigma kept homosexual and bisexual persons hidden and legitimized their abuse, but this stigma began to be challenged in the 1970s, after the Stonewall riots and the removal of homosexuality from the psychiatric manual of mental disorders.^2,3 When the AIDS crisis rapidly emerged, government action was slow and muted partly because of broad stigma against who was most affected.⁴ Despite growing resistance to and activism against society’s stigmatization of sexual minorities, HIV emerged in a bleak legal environment of widespread prejudice and discrimination reflected by individuals and most of society’s institutions.^2,5 In the 1980s, almost 20 states, many in the South, still had sodomy laws on the books that criminalized sex between members of the same sex or all nonprocreative sex.⁵ In 1986, in Bowers v. Hardwick (478 US 186), the Supreme Court reinforced stigma when it narrowly upheld the right of Georgia to enforce a sodomy law that prohibited homosexual conduct, even when it occurred in a private home.⁵ Although seldom enforced, sodomy laws often were used to justify discrimination in other laws and institutions.⁵ Thus, as HIV took hold in the United States, same-sex behaviors and relationships had no legal protections, gay parents often lost their parental rights during divorce, violence and victimization was too common, and, in almost all circumstances, discrimination was legal in employment (including the military), housing, and social services.^2,5

In addition, during HIV’s first decade, intense fear and stigma led to new HIV-specific criminal laws. In the name of public health, criminal laws were passed in more than 35 states that punished behaviors that might transmit HIV; states without HIV-specific laws used general criminal laws to accomplish the same end.⁶ These laws were considered unjust because of their harsh penalties (felony), often for acts unlikely to transmit HIV; punishment regardless of intent or actual transmission; and lack of evidence that such laws reduced HIV transmission and might even unintentionally promote less disclosure of HIV status and resistance to HIV testing.⁶

Stigma also was channeled into overt discrimination toward gay and bisexual men and people with HIV, leading to gross injustices by family members, friends, and institutions. People with AIDS were kicked out of homes by family members and landlords, not touched or avoided by medical professionals, and lost their jobs. Obituaries often excluded AIDS as the cause of death, and surviving partners were often not named as bereaved survivors or able to obtain survivors benefits. Partnered gay men were considered legal strangers in the absence of a legally executed will, with the families of deceased men refusing to acknowledge partners and taking personal effects and property. Partners also were routinely excluded from hospitals, funerals, and their own homes and perceived to be part of a “lifestyle” that everyone from medical professionals to blood relatives did not accept.⁴

From this dark period came activism and increased visibility of gay and bisexual men and people with HIV that moved social attitudes. The rapidly increasing impact of HIV gave rise to community-based organizations to serve and fight for the rights and HIV treatments that were sorely lacking, and these agencies continue to provide crucial advocacy for key populations. Activists pushed for faster Food and Drug Administration approval of HIV treatments,⁴ and scientists developed increasingly better treatments, culminating in the introduction of highly active antiretroviral therapy and antiretroviral therapy in the mid-1990s. Among society at large, almost every survey finds dramatic changes in attitudes toward sexual minorities since the early 1990s, although some groups, such as evangelicals and African Americans, showed less change. For example, the proportion of Americans who said same-sex sexual activity was “not wrong at all” was only 11% in 1970 and 13% in 1990 but had increased to 49% by 2014,⁷ and support for gay marriage completely reversed from 2004 to 2019, from 31% for and 61% against to 61% for and 31% against.⁸

Although progress was uneven, and attitudes were not universally supportive, HIV sparked activism for fairness and against stigma, which contributed to two landmark bills in 1990: the Ryan White Comprehensive AIDS Resources Emergency Act (Pub L No. 101–381, 104 Stat. 576) provides medical care for people with HIV without other options,⁹ and the Americans with Disabilities Act prohibits most HIV-related discrimination. In 1996, the federal Defense of Marriage Act denied benefits to same-sex couples and allowed states to ignore same-sex marriages from other states.^2,10 Many states quickly passed laws or constitutional amendments to define marriage as between a man and a women, and some to also ban civil unions and domestic partnerships. In response, a patchwork of laws and regulations was passed by cities, states, corporations, or professional organizations to provide limited protections for same-sex relationships and against discrimination.² The Supreme Court finally provided protection for same-sex sexual behavior in 2003, declaring sodomy laws unconstitutional in Lawrence v. Texas (539 US 558) and relationships in 2015 upholding the right for same-sex persons to marry in Obergefell v. Hodges (576 US 644).

The landmark 2010 Affordable Care Act and 2014 Medicaid expansion show that health legislation can help HIV prevention and care and thereby support gay and bisexual men. States with Medicaid expansion (approximately 38 in 2019) show large increases in insurance coverage, diagnoses and ongoing treatment of chronic conditions, and HIV testing.¹¹ Similarly, a recent study found that MSM in expansion states were more likely to have insurance (87.9% vs 71.6%), have Medicaid (21.3% vs 3.8%), discuss preexposure prophylaxis with a provider (58.8% vs 44.3%), and use preexposure prophylaxis (31.1% vs 17.5%).¹²

Over the past decade, public health has increased its focus on addressing stigma and the social determinants of health to improve disparities in HIV care and prevention and among gay and bisexual men. The benefits of passing supportive laws was shown in a study that linked state-level laws and policies that were more favorable to sexual minorities to better HIV outcomes among MSM.¹³ But the increase in favorable laws and policies over time has not stopped the increasing disproportionate impact of HIV among racial and ethnic minority gay and bisexual men. Persistent stigmas related to HIV, sexual orientation, race, and other domains also continue to be expressed in laws, policies, and attitudes of individuals and social institutions. For example, HIV criminalization laws have remained stubbornly resistant to change despite their obvious flaws, although in the past decade a handful of states have updated their laws to be more consistent with the science.⁶ Unfortunately, these laws have been applied disproportionately to African American MSM,^6,14 highlighting that changing laws is just part of the challenge when addressing stigmas and reducing health inequities.

The past 40 years has seen remarkable progress in HIV prevention and care as well as undeniable legal and policy progress as stigmatized communities fought for basic rights and dignity related to behaviors, identities, and HIV. But this progress has occurred in conjunction with growing HIV disparities for racial and ethnic minority gay and bisexual men.¹ Although potential reasons for these persistent disparities are multifaceted and complex, some of the factors likely to play a role in HIV disparities among African American and Latino MSM include the following:

• 1a deeply entrenched and widely unacknowledged caste system that devalues non-White identities¹⁵;
• 2the disparate application of laws and policies that disadvantage racial and ethnic minorities, including HIV criminalization laws¹⁵;
• 3the increased medicalization of HIV prevention and care in conjunction with medical systems that are difficult to access and not culturally competent or trusted by key populations;
• 4the concentration of minority populations in Southern states that have a long history of stigmatizing African American and gay people and rejecting public health policy solutions; and
• 5challenges in managing intersectional stigma (e.g., racism and homophobia).

Tackling a range of disparities is the cutting edge of where public health and legal and policy work need to unite to increase justice for all gay and bisexual men and end HIV during the coming fifth decade.