Bills Tackle Condoms, HIV Disclosure

by Matthew S. Bajko

Bay Area Reporter

Tuesday February 26, 2013

In coming weeks state lawmakers will be debating the usage of condoms on porn sets and as evidence in prostitution cases. Focus will also be paid to the taxation of extra pay some LGBT workers receive.

And attention will be turned to relaxing California's HIV confidentiality and data sharing laws for a subset of people enrolled in the state AIDS Drug Assistance Program who will be transitioned to Medi-Cal or Covered California, the health insurance exchange created by the federal Affordable Care Act.

Two bills certain to receive widespread attention this year relate to condoms.

Assembly Bill 336, introduced by gay Assemblyman Tom Ammiano (D-San Francisco), would prohibit police and prosecutors from using possession of one or more condoms as a factor in arresting and prosecuting suspects alleged to be engaged in prostitution. Health officials and sex worker advocates have long complained that using prophylactics as evidence in prostitution cases results is bad public health policy and puts both sex workers and their clients at risk of contracting HIV or other sexually transmitted diseases.

"We have to encourage safe-sex practices, not frighten people into spreading disease," stated Ammiano in a release about the bill.

Following coverage of the issue by the Bay Area Reporter last year, law enforcement professionals in San Francisco instituted a moratorium on using condom possession in prostitution cases. The policy is set to expire in April but could be made permanent after a review by the police and district attorney.

The second condom bill, AB 332, would require condom use in all adult films - both gay and straight - produced in California. Assemblyman Isadore Hall, III (D-Los Angeles) is the lead author of the bill, which is being backed by the AIDS Healthcare Foundation.

It would make statewide a policy Los Angeles County voters passed in November that requires the use of condoms in explicit adult films produced within L.A. county.

"When it comes down to it, adult film actors are employees, like any other employee for any other business in the state," stated Hall. "We have an obligation to ensure that all workers, regardless of the type of work, are protected from workplace hazards and injury. AB 332 will give these actors a proven way to prevent the spread of disease while creating a safer workplace for actors throughout this growing industry."

If adopted by state lawmakers, the bill likely would have little to no impact on the production of gay porn featuring condomless sex, known as barebacking, as most producers would simply relocate production out of state.

Writing about the bill last week, the website noted that most gay porn companies making bareback videos have either opened satellite offices in or decamped to other states such as Florida "where bareback productions are on the rise."

DP tax relief

Freshman lawmaker Assemblyman Phil Ting (D-San Francisco) is the lead author of legislation that would provide fiscal relief to same-sex couples who are hit with increased tax bills due to healthcare benefits.

When one partner adds the other to their employer provided health insurance plan, they incur a tax penalty because the Internal Revenue Service treats any employer contributions for a same-sex partner's or spouses' health insurance premiums as taxable income. Heterosexual couples do not face a similar tax hike, but LGBT couples do because under the Defense of Marriage Act the federal government is barred from recognizing their marriage or partnership.

In recent years a number of companies - such as Google, Kimpton Hotels and Restaurants, and Facebook - have turned to what is known as "grossing up" the pay of their LGBT employees to offset their tax bill. San Francisco is set to become only the third city in the nation to provide similar relief to its public employees with same-sex partners covered on their health plans under legislation by Supervisor Mark Farrell.

Since California provides same-sex couples in registered domestic partnerships or marriages the same rights as heterosexual married couples, the state does not impose a tax on the health benefits. It does, however, tax the "grossed up" pay employers provide to their LGBT workers.

Ting's bill, AB 362, would end the state taxation of the reimbursement pay that employers are providing to their workers in same-sex relationships. It would apply to both private sector workers and employees of public entities.

"At the heart of this issue is a question of fairness for same-sex couples," stated Ting, formerly San Francisco's assessor-recorder. "The federal policy to tax their benefits is discriminatory, and the last thing the state of California should do is make it harder to remedy the injustice by taxing the reimbursement of these costs."

Equality California, the statewide LGBT advocacy group, is backing the bill.

"We can't end DOMA from the Statehouse, but we can make sure that California is not part of the problem," stated EQCA Executive Director John O'Connor.

HIV confidentiality change

Due to changes being implemented under the federal Affordable Care Act, gay state Senator Mark Leno (D-San Francisco) is carrying a bill that will loosen the state's HIV confidentiality law in order that those people living with AIDS and HIV who will be transitioned out of ADAP will continue to receive their medications on time.

Starting January 1, 2014, those ADAP members making more than 138 percent of the federal poverty level will be covered by the new health insurance exchange called Covered California. Those people earning less than the 138 percent of the federal poverty level will be covered by an expanded Medi-Cal.

"The underlying concern here is a safe and effective transition for continuity of care and medication," said Leno in a phone interview. "The ADAP program needs to be communicating with Medi-Cal and Covered California in a way never done before."

Enrollment in the programs will begin October 1. It is unclear how many of the 34,000 ADAP users, said Leno, will be transitioned to other programs starting in the fall.

Under current state laws governing HIV disclosure, the rules covering the transferring of medical records for those enrollees who will leave ADAP are quite restrictive. Leno's bill is aimed at loosening the restrictions in order to facilitate an easy transition from ADAP into the other programs.

"Right now there is no way for those medical records to be sent over," said Leno. "We are not changing confidentiality laws at all. We do need to make them more flexible to ensure continuation of care is not sacrificed as these individuals transition into new programs."

The bill also extends the confidentiality guidelines that now apply to HIV blood tests to all types of HIV tests, including urine and saliva tests, as well as methods yet to be identified.

Assemblyman Mark Stone (D-Santa Cruz) is a co-author of the bill, and co-sponsors include the San Francisco AIDS Foundation, Los Angeles Gay and Lesbian Center, AIDS Legal Referral Panel, and the Conference of California Bar Associations.

"I don't think there is any great risk for people with HIV with this exception," said ALRP Executive Director Bill Hirsh.

AIDS Housing Alliance Executive Director Brian Basinger agreed that the bill should not be a cause for concern. When the state implemented the HIV confidentiality laws, it did not intend them to be a roadblock to care, he said.

"I am 100 percent supportive of us taking baby steps toward the normalization of HIV and AIDS," said Basinger. "These tools were designed in a previous era to protect us. Their intentions were never to harm and prevent us from accessing resources and getting the care we need. Society has evolved, I have evolved, and our legislation has to evolve too."

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