Academic journal article Northwestern Journal of Law and Social Policy

Mandatory HIV Status Disclosure for Students in Illinois: A Deterrent to Testing and a Violation of the Americans with Disabilities Act

Academic journal article Northwestern Journal of Law and Social Policy

Mandatory HIV Status Disclosure for Students in Illinois: A Deterrent to Testing and a Violation of the Americans with Disabilities Act

Article excerpt


It has been more than thirty years since the first case of HIV/AIDS was reported in the United States.1 During that time, and thanks to advances in treatment, HIV/AIDS has morphed from a fatal disease to a treatable, if still chronic, condition that often does not seriously impair an infected person's daily life.2 New medications allow physicians to control the spread of the disease, both within an infected individual's body and from person to person.3 Our increased understanding of the ways that HIV is spread from person to person, combined with effective prophylactic treatment for those accidentally exposed, means that the medical profession is in a better position to control HIV/AIDS than ever before.4

At the same time, however, the stigma surrounding HIV/AIDS is still very real.5

Discovery of a person's HIV serostatus has been shown to lead to loss of family ties, friendship, employment, and housing; dismissal from school; and denial of health and life insurance as well as health care.6

HIV is still associated with homosexuality and drug use, and misunderstandings about the way that HIV is transmitted are still widespread throughout the general population.7 In one study from 1993, 35.7% of individuals surveyed believed that people with AIDS should be "legally separated from others to protect the public health."8 A more recent survey found that negative attitudes toward HIV positive individuals among the general public have decreased over time, but these attitudes still exist.9

Throughout the past twenty years, HIV has become a more treatable disease and our knowledge of the ways that the virus spreads has increased.10 Unfortunately, the spread of the disease has not slowed, at least within certain populations. Especially among adolescents, rates of HIV infection are actually increasing, despite the many scientific advances in treatment.11 Some of this increase may be attributable to reluctance on the part of at-risk individuals to get tested due to the stigma associated with the disease.12

All fifty states have laws dealing with HIV/AIDS.13 These laws cover matters as diverse as anonymous testing, criminal transmission of HIV, marital testing, confidentiality, employment discrimination, and sexual education.14 In many cases, the laws reflect a modern understanding of HIV transmission and treatment and are aimed at mitigating or minimizing possible negative effects for those infected. In other cases, laws reflect an out-of-date and discriminatory view of HIV. Not only are the laws are problematic, often the actions of local and state officials can also reflect an out-of-date vision of HIV and its consequences. In 2012, an Iowa man was sentenced to twenty years in prison after having protected sex without disclosing his HIV status.15 The sentence was later reduced on appeal, though the man was still required to register as a sex offender.16 But more than twenty-five states still have laws on the books that criminalize low-risk behavior, such as having protected sex.17 In 2013, three students were banned from an Arkansas school (after rumors surfaced that they had HIV) until they provided documentation that they were not infected with the disease.18 The rate of prosecution for HIV-related crimes has no relationship to the prevalence of HIV-infection in a given state, indicating that stigma plays some role in a prosecutor's choice of charges.19

Illinois has, over the past 30 years, passed several laws that specifically affect individuals who are HIV-positive. One of these statutes, the subject of this Comment, required, until it was repealed in 2013, that the Illinois Department of Public Health notify school principals anytime a child in their school tests positive for HIV.20 That principal was then allowed to disclose the student's HIV status to school health workers, the student's classroom teachers, and others.21

No other state in the United States had such a law on the books. …

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