Time and again over the past decades, the District has been held back from implementing measures that some in Congress don’t like, from needle-exchange programs to medical marijuana to domestic partnerships and beyond.

Congressional oversight of the D.C. budget has allowed Congress to pass ”riders” that are attached to the annual appropriations bill, stopping the D.C. government from acting on measures passed by D.C. Council or, in one notable case, by District residents. . . .

With Sunday’s passage by the Senate of the omnibus appropriations bill, though, the District was a step closer to having the most onerous riders wiped clean from the budget. The House passed the measure a few days earlier, and President Obama is expected to sign the bill this week.

President Obama signs the Ryan White HIV/AIDS Treatment Extension Act today, with Ryan's mother, Jeanne, looking on.

With today’s signing of the Ryan White HIV/AIDS Treatment Extension Act and his announcement that the final rule will be published on Monday to end the HIV travel ban in America, President Obama has taken two great steps to make America a better, safer place.  Waymon Hudson has a great summary up at Bilerico, and Kerry Eleveld broke the travel ban news at The Advocate last night.

The President, eloquent as ever today, said in part:

It has been nearly three decades since this virus first became known.  But for years, we refused to recognize it for what it was.  It was coined a “gay disease.”  Those who had it were viewed with suspicion.  There was a sense among some that people afflicted by AIDS somehow deserved their fate and that it was acceptable for our nation to look the other way. . . .

But it will also take an effort to end the stigma that has stopped people from getting tested; that has stopped people from facing their own illness; and that has sped the spread of this disease for far too long.  A couple of years ago Michelle and I were in Africa and we tried to combat the stigma when we were in Kenya by taking a public HIV/AIDS test.  And I’m proud to announce today we’re about to take another step towards ending that stigma.

Twenty-two years ago, in a decision rooted in fear rather than fact, the United States instituted a travel ban on entry into the country for people living with HIV/AIDS.  Now, we talk about reducing the stigma of this disease — yet we’ve treated a visitor living with it as a threat.  We lead the world when it comes to helping stem the AIDS pandemic — yet we are one of only a dozen countries that still bar people from HIV from entering our own country.

If we want to be the global leader in combating HIV/AIDS, we need to act like it.  And that’s why, on Monday my administration will publish a final rule that eliminates the travel ban effective just after the New Year.  Congress and President Bush began this process last year, and they ought to be commended for it.  We are finishing the job.  It’s a step that will encourage people to get tested and get treatment, it’s a step that will keep families together, and it’s a step that will save lives.

Thank you, President Obama, for finishing this long-overdue job.

Andrew Sullivan, a longtime critic of the travel ban, had this to say:

For me, it is the end of 16 years of profound insecurity. Like many others, my application for permanent residence and citizenship can go forward. And I will be able to see my family again in England and know that my HIV will not force me to choose between my husband and the country I have come to call my home. There is no price to be put on that.

Lamarre

According to the ACLU’s appeal papers (pdf), the TSA ignored its own standards in concluding that Michael Lamarre, who has been HIV-positive for nearly the past 20 years, was subject to a “medical disqualification” from a Transportation Security Officer position for which he had applied.

The TSA’s standard, from its contractor’s letter (pdf) to Lamarre, for HIV-positive applicants states:

HIV – The effect of the treatment program, physical, emotional, and intellectual impact of the disease, and prognosis should be considered when evaluating the capability of an individual to perform job tasks.  [TSA Medical Guidelines for Transportation Security Screeners, 2007 edition]. 2) Must meet job-related standards that will be assessed in a pre-employment medical evaluation.  [Transportation Security Officer (TSO) Qualifications & Evaluations on www.usajobs.gov]

In Lamarre’s situation, he applied for and was moved through the application process successfully until he disclosed his HIV-status during a required physical.  Follow-up documentation was requested by Comprehensive Health Services, Inc., the contractor who did the physical screening for TSA.  Lamarre’s doctor provided the requested documentation, concluding that he “is capable of meeting the [TSO] job requirements safely, efficiently, and effectively with respect to my medical specialty and the candidate’s medical condition and/or diagnosis.”  Days later, the letter came from CHS informing Lamarre of the “medical disqualification.”

In follow-up conversations with CHS, according to the ACLU, ” he was told that the reason he was rejected is because his HIV status makes him more susceptible to virus and infections and that it was for his own benefit . . . .”  This, unfortunately, is not nearly as rare an employer action as it would seem, although the fact that it is coming from the federal government in 2009 is unacceptable.  As the ACLU noted, CHS reached this conclusion “despite the fact that medical experts and his own doctor have said he is no more likely to catch a cold or virus than anyone else.”

The Justice Department’s own Civil Rights Division, in a publication, “Questions and Answers: The Americans with Disabilities Act and Persons With HIV/AIDS” notes:

Employers cannot choose not to hire a qualified person now because they fear the worker will become too ill to work in the future. The hiring decision must be based on how well the individual can perform now.

The DOJ publication, however, also discusses the “direct threat” provision of the ADA, which permits employers “to establish qualification standards that will exclude individuals who pose a direct threat — i.e., a significant risk of substantial harm — to the health or safety of the individual or of others” but only “if that risk cannot be eliminated or reduced below the level of a ‘direct threat’ by reasonable accommodation.”

It appears that the TSA’s contractor determined that Lamarre performing as a TSO would be a “direct threat” to his own health or safety.  It is important, though, to note that the idea that an individual could be declared a “direct threat” to himself or herself is something only determined by EEOC regulation interpreting the ADA that was later affirmed in a 2002 Supreme Court decision.  See Chevron v. Echazabel, 536 U.S. 73 (2002). The decision was decried by disabilities-rights activists who believed the ADA and earlier disability-rights laws were attempting to eliminate traditional parternalistic attitudes about what disabled individual could and could not do.

The interpretation of “direct threat” as including a direct threat to one’s own health earlier had been rejected by the Ninth Circuit in an opinion by Judge Reinhard.  In his opinion, he quoted a floor speech from Sen. Kennedy, in which the Senator said:

The ADA provides that a valid qualification standard is that a person not pose a direct threat to the health or safety of other individuals in the workplace–that is, to other coworkers or customers . . . . It is important,
however, that the ADA specifically refers to health and safety threats to others. Under the ADA, employers may not deny a person an employment opportunity based on paternalistic concerns regarding the person’s health. For example, an employer could not use as an excuse for not hiring a person with HIV disease the claim that the employer was simply “protecting the individual” from opportunistic diseases to which the individual might be exposed. That is a concern that should rightfully be dealt with by the individual, in consultation with his or her private physician.

136 Cong. Rec. S9684-03, at S9697 (1990).  Despite Sen. Kennedy’s statement, the Supreme Court — at the Bush Administration’s urging — upheld the EEOC interpretation, in a ruling widely declared a victory for business.

If the story the ACLU tells is accurate, it would appear that, today, the “business” seeking to benefit from the 2002 ruling is the TSA. It is unacceptable that an agency of the Obama Administration is engaging in precisely the very type of paternalistic discrimination that Sen. Kennedy and disabilities advocates across the nation hoped the Americans with Disabilities Act and Rehabilitation Act would stop.

If you’ve not yet watched openly gay, HIV-positive Senator Tom Duane’s gritty, moving 3 a.m. speech about legislation that he was sponsoring regarding cost-savings measures for people living with HIV/AIDS, you should.  Now.

It’s about a whole lot more than legislation.

The bill, which “provides that persons living with clinical/symptomatic HIV or AIDS, and . . . receiving shelter assistance or an emergency shelter allowance, shall not be required to pay more than 30% of the household’s . . . income towards shelter costs, including rent and utilities,” later passed the Senate on a vote of 52-1.

[H/T to Andy Towle.]

Andrew Sullivan has flaws, as do we all, but there is no denying that the man is one of the great writers of our day.  Though he’s written much more, much of which is far more eloquent even than this, this morning there is a discussion about the impact of AIDS, from Andrew on Tuesday:

If you think that the Vietnam war took around 60,000 young American lives randomly over a decade or more, then imagine the psychic and social impact of 300,000 young Americans dying in a few years. Imagine a Vietnam Memorial five times the size. The victims were from every state and city and town and village. They were part of millions and millions of families. Suddenly, gay men were visible in ways we had never been before. And our humanity – revealed by the awful, terrifying, gruesome deaths of those in the first years of the plague – ripped off the veneer of stereotype and demonization and made us seem as human as we are. More, actually: part of our families.

I think that horrifying period made the difference. It also galvanized gay men and lesbians into fighting more passionately than ever – because our very lives were at stake. There were different strategies – from Act-Up actions to Log Cabin conventions. But more and more of us learned self-respect and refused to tolerate the condescension, double standards, discrimination and violence so many still endured. We were deadly serious. And we fight on in part because of those we had lost. At least I know I do.

For all that he may do to frustrate or annoy all of us at times, the man has fought on without end to make this world we live in more understanding of gay lives and more willing to accept that LGBT equality is the moral path for our country — and world — to take.  What’s more, he has fought on with, at times, some of the most eloquent words that I’ve read.

* * * * *

Way back on Jan. 10, 2000, when Andrew was a senior editor at The New Republic and the Vermont Supreme Court had ruled in Baker v. Vermont that equal benefits and protections had to be given to same-sex couples, Andrew, through the Editors of TNR, wrote what I have long believed to be the most powerfully unambiguous two sentences written in the argument for marriage equality:

Legalizing gay marriage . . . is not a radical reformulation of an unchanging institution. It is the long-overdue correction of a moral anomaly that dehumanizes and excludes a significant portion of the human race.

Finally, the conclusion of that editorial — “Separate but Equal?” — it seems to me, was as much Andrew’s note to himself as it was an argument to be heard far and wide, in responding to the possibility of “civil unions” being adopted, which later happened, rather than marriage itself:

There is in fact no argument for a domestic-partnership compromise except that the maintenance of stigma is an important social value–that if homosexuals are finally allowed on the marriage bus, they should still be required to sit in the back. This “solution” smacks of the equally incoherent half-measure of “don’t ask, don’t tell,” another unwieldy contraption that was designed to overcome discrimination but instead has ruthlessly reinforced it. Equality is equality. Marriage is marriage. There is no ultimate moral or political answer to this question but to grant both. And to keep marshaling the moral, religious, civic, and human reasons why it is an eminently important and noble thing to do.

That is, of course, what Andrew has gone on to do.  And the Vermont legislature, of course, passed full marriage equality in their state earlier this year.

Thanks to Andrew, and many others, for your lifelong dedication to our cause.

Here’s Director of the Domestic Policy Council Melody Barnes’ response:

In her response to the Blade’s inquiry, Barnes said the order uses “technical drafting language” to distinguish which White House staff positions are part of the Domestic Policy Council. She said the AIDS coordinator’s post has and continues to remain a member of the Domestic Policy Council.

How is this possible?  There was “technical drafting language” — if by which you mean, “the law” — in the executive order that eliminated the position from the Domestic Policy Council.  No language to the contrary has been issued since, to my knowledge.  What is going on here?

[UPDATE: Politico adds to the confusion, including more of Barnes' response to AIDS advocacy organization:

The Domestic Policy Council executive order reflects the fact that ONAP is part of the DPC, and as a result, the head of the office automatically participates on the Council. Those listed in the executive order are departments, agencies and White House offices not part of the DPC.

Although I appreciate that the order allows the head of the Office of National AIDS Policy to "participate" in the Domestic Policy Council, the executive order issued by President Clinton and amended by President Obama makes quite clear that there are specifically identified members of the Domestic Policy Council.

The room for movement is that there is a "catch-all" provision in the E.O. for membership in the Domestic Policy Council:  "Such other officials of Executive departments and agencies as the President may, from time to time, designate."

The distinction, I believe, is between whether the head of the Office of National AIDS Policy is a member of or a staff member to the Domestic Policy Council.  From all that has been reported thus far, it would appear that President Obama moved the position from member to staffer.  (In fairness, the Bush Administration left the post open for the past two years, so filling the post is in and of itself an improvement.)]

One possibility:  The Senior Advisor and Assistant to the President for Intergovernmental Affairs and Public Liaison (Valerie Jarrett) was added, and it’s possible that the AIDS Policy Coordinator reports to Jarrett.

Another possibility: Is the AIDS Policy Coordinator the “global AIDS coordinator and director of the President’s Emergency Plan for AIDS Relief” referred to in this NYT article as being an ambassador-rank position in the State Department?  It would make sense to remove that position from the Domestic Policy Council if it had evolved to that international focus during Bush’s terms (although would raise questions about why there isn’t a domestic AIDS policy advisor).

Anyone?