AIDS Healthcare Foundation announced on Feb. 27 that the organization has collected more than half the signatures required to qualify an initiative for the November 2012 ballot to require porn producers to secure an L.A. County health permit mandating condom use. The purpose of the measure, says AHF, is “to minimize the spread of sexually transmitted infections by regulating the adult film industry.”
AHF says the proposed ordinance would provide workplace and health code protections modeled on similar health permits for barber shops, tattoo and massage parlors and bathhouses.
“For too long, elected officials have dodged this workplace safety issue, punting the issue from city to county to state, and as a consequence, the health and safety of these workers has been neglected, often with dire consequences,” said AHF President Michael Weinstein. “This is why we have taken up this ballot measure campaign: so the people, the voters in Los Angeles County, may act—or force county officials to act—on this important health and safety issue affecting adult film performers.”
If passed, the measure would add an ordinance to the existing L.A. County Health and Safety code requiring “the use of condoms for all acts of anal or vaginal sex during the production of adult films, as well as the posting of the public health permit and notice to performers regarding condom use.” Porn producers would also be required to pay an enforcement fee. Violation of the ordinance would be subject to civil fines and/or criminal misdemeanor charges.
But what might look to some like a simple expansion of the public health code has gay, HIV and free speech activists outraged over the threat of government intrusion into the bedroom and regulation of private consensual sexual behavior.
“The LGBT community has fought long and hard for the right of consenting adults to have sex how they choose. And currently, much of our political debate is over women’s ability to maintain autonomy over their bodies in regards to sexual health and reproduction,” Alex Garner, Editor-at-Large of Positive Frontiers, wrote in his Feb. 23 blog for FrontiersLA.com. “If AHF and the city of Los Angeles are truly committed to preventing HIV infections, then I would challenge them to put the same amount of time, money and media attention into the communities that are being hardest hit by the epidemic. And I would challenge the people of L.A. to wise up to political theater and fiercely object to such transparent shenanigans.”
Paying attention to communities hardest hit by the HIV epidemic is actually in AHF’s DNA. AHF was founded in 1987 in response to what was then perceived as the primary focus on white gay men by major AIDS service organizations such as AIDS Project Los Angeles. AHF worked with activists from groups such as ACT UP/L.A. and Women Alive and is a significant funder to people of color organizations such as In The Meantime Men, a health and wellness organization for black gay men.
“This is not just about one industry, but about our entire community, as the spread of disease among adult film performers endangers [the performers] as well as their sexual partners in and outside the industry,” Weinstein said.
The announcement comes roughly one month after L.A. Mayor Antonio Villaraigosa signed an AHF-proposed city law mandating that porn producers require condom use in order to obtain a film permit. However, the law, signed on Jan. 23, exempts sound stages where most of the shooting occurs. It also exempts oral sex, which many health advocates believe is how most STDS are spread.
The L.A. City Council passed the ordinance Jan. 17 by a vote of 9-1, largely to avoid a $4 million special election in June, for which AHF had qualified a city initiative. After the council vote, Weinstein declared, “It’s a great day for the performers and safer sex in our society.”
“Personally, at every opportunity I have to do anything to reduce the spread of HIV/AIDS, I always take that opportunity,” L.A. City Councilmember Paul Koretz told the L.A. Times. He had “no doubt … the voters would see this as a common sense issue and pass it.”
And therein lies a potentially difficult political conflict for the LGBT and HIV communities. The initiative is officially titled “County of Los Angeles Safer Sex in the Adult Film Industry Act.” But the banner under which AHF is pursuing their initiative campaign is FAIR—For Adult Industry Responsibility. FAIR is also the acronym used when referring to the California FAIR Education Act, the current law requiring public schools to teach about the contributions of LGBT, disabled and other minorities heretofore left out of the state’s social science curriculum.
Five proposed anti-gay initiatives to repeal the FAIR Education Act have been cleared for signature-gathering, though it is believed that only one, sponsored by Karen England from the old ‘Stop SB 48’ campaign, has a chance at getting qualified.
If the ‘Stop SB 48’/England-sponsored initiative does qualify, the already-heated November elections could see LGBT people throughout California fighting to protect the FAIR Act to allow school kids to learn about gay people—while at the same time ardent gays in L.A. County would be vigorously arguing against AHF’s FAIR campaign and in favor of gays (regardless of their HIV status) having condom-less sex as a constitutional right.
And that might be a bridge too far for some women, including lesbians. During the most terrible times at the beginning of the AIDS crisis in the early 1980s, lesbians and straight women took care of gay men dying of AIDS, even when the exact cause of HIV transmission was not yet known. Partly in response to that—and recognizing that government and the right-wing attempts to control women’s bodies were similar to the efforts to criminalize HIV and to quarantine those infected in the name of public health—some of the men of ACT UP joined feminist women in defending abortion clinics from Religious Right zealots.
Garner is among the HIV activists who now links the condom debate to the politics of women’s sexual health and reproductive rights. And to be sure, there are women at the forefront of the anti-AHF initiative effort.
After the City Council vote, Free Speech Coalition Executive Director Diane Duke said on her website, “The Council’s decision is yet another example of government overreach and intrusion. The regulations imposed are without any input from the stakeholders most impacted—adult performers and producers. ... Mandatory condom regulation will not increase performer safety; it will diminish the successful standards and protocols already in place and compromise performer health. Government regulation of sexual behavior between consenting adults is, and has always been, a bad idea. The government has no business in our bedrooms—real or fantasy.”
Before the Council vote, FSC Board Chair Jeffrey Douglas questioned the need for the ordinance, saying, “The adult industry has been extraordinarily successful in preventing HIV infections through its testing protocols and self-regulation.” Douglas also noted that as of last December, Film L.A. reported that “only five percent of total film permits are used for adult productions.”
FSC reported that they have “worked with industry stakeholders, compliance experts and legal advisers to develop the FSC Bloodbourne Pathogen Plan, and other policies for industry appropriate regulations.” Additionally, after the Adult Industry Medical Healthcare clinic closed last April, “largely due to legal attacks by AHF, FSC stepped up to provide Adult Production Healthcare & Safety Services as a resource for performer testing and production protocols.”
“The industry is working with the state toward adopting industry specific and industry appropriate safety standards, and these efforts by AHF and Michael Weinstein are an attempt to interfere in that process,” said legal adviser Karen Tynan before the city passed the ordinance.
According to the Associated Press, AIM was closed temporarily in 2010 after operating without a license. Then in 2011, AIM was closed permanently after complaints about patient medical information appeared on a website.
Additionally, AP reported, AIM faced “criticism from state and local health officials for failing to cooperate with an investigation into porn actor Derrick Burts’ HIV-positive diagnosis there in December . The 24-year-old said he contracted the disease after a few months in the business, and instead of getting information from the clinic about how to get follow-up care, he was told to avoid media, change his phone number and leave town. Later in December, the clinic was forced to close for improper state licensure and reopened in February after getting its paperwork in order.”
AHF helped Burts come forward. “Performers were poorly served by [the clinic] and are poorly served by an industry that places profits above worker safety,” Weinstein told AP. AHF has been advocating for mandatory condom use in the porn industry since 2004 when another porn actor, Darren James, tested HIV-positive and apparently infected three actresses before AIM notified him of his status. Reaction to the James revelation wound up shutting down adult film studios for a month as the story received national attention.
As a result of the two HIV-positive incidents, other major medical groups such as the American Medical Association, the California Conference of Local AIDS Directors and the California Medical Association joined AHF in calling for mandatory use of condoms in adult films.
AHF also cites the L.A. County Department of Public Health in saying that porn performers are “10 times more likely to be infected with a sexually transmitted disease than members of the population at large. ... LADPH has also observed that many workers suffer multiple infections, with some performers having four or more separate infections over the course of a year. In addition, LADPH has stated that as many as 25 industry-related cases of HIV have been reported since 2004.”
L.A. County Director of Public Health, Dr. Jonathan Fielding, however, declined to comment to the L.A. Times on AHF’s proposed initiative.
A spokesperson for L.A. County Supervisor Zev Yaroslavsky, whose district includes the porn haven of the San Fernando Valley, told the Times that Yaroslavsky thought, “the state, not the county, should be the lead regulator on the issue.”
When production temporarily shut down after Burts’ HIV status was initially revealed in August 2011, ABC News reported that porn in Los Angeles was a “billion dollar” industry. Several production firms have threatened to leave L.A. if the AHF initiative is passed.
While the initiative is primarily about condom use in straight porn, gay men believe it will have little real impact. “We have very little evidence to demonstrate that this law will prevent HIV infections. It’s extremely difficult to prove that HIV transmission occurred while one was in the act of shooting porn, but the city of Los Angeles estimates that between 2004 and 2010 there were eight cases of HIV in the L.A. porn industry. That comes out to an average of less than two per year,” wrote Garner.
Additionally, though the CDC issued a report last November that found less than 30 percent of the 1.2 million Americans with HIV have their viral load under control, for those who do, there is evidence stating there is no fear of transmitting HIV when the viral load is undetectable. So in the real world, especially in the new era where “treatment is prevention,” HIV-positive people are having consensual condomless sex with other positives and HIV-negatives use condoms when they want to.
With “condom fatigue,” the old HIV/AIDS prevention message of “use a condom every time” no longer works.
“Some of us are talking about prevention every single day of the year,” said L.A. County AIDS Czar Mario Perez in an earlier Frontiers story about the targeted shift to ‘treatment is prevention.’ “What we’ve done is we’ve become more specific about the type of prevention we’re talking about. Is it a bio-medical intervention designed to prevent HIV? Is it treatment to reduce viral load to prevent forward transmission of HIV under that prevention rubric? Is it getting people diagnosed—because we also know that once people are diagnosed, they change their behavior to not put others at risk. That’s a prevention-intervention in itself. But it’s all under the prevention umbrella. The end goal is to make sure we don’t have two or three thousand new infections in L.A. every year.”
“Stigma is what spreads this disease,” Poz magazine founder Sean Strub said in response. “It is what makes people reluctant to get tested, reluctant to access treatment and reluctant to disclose their status. One of the major reasons people don’t test is because they distrust the health care system and public health policies; this decision to coerce people into treatment with incomplete or misleading information is going to add to that mistrust.”
The perception that the government is trying to coerce condom compliance rankles gay men who cherish their freedom of choice and fear a domino effect from the law.
Philosophically, women might agree with the concept of “choice”—access to the birth control pill and other forms of contraception gave women the freedom to have sex without fearing automatic pregnancy. But women might not agree there is a direct correlation between the fight to protect their reproductive rights and the fight to protect the right to have unprotected sex. Birth control pills prevent pregnancy; condoms prevent HIV transmission—and pregnancy. Some women wish men would take more responsibility for preventing pregnancy by using condoms so the burden wouldn’t fall on them alone to be responsible and take that daily medication.
And then there are the lesbians. In 1999, lesbians were outraged when they heard about the new “barebacking” craze represented by Tony Valenzula and the hypocrisy of Andrew Sullivan, who called for responsible HIV prevention and then went online seeking barebacking partners.
“In the beginning, when people got AIDS, we didn’t know how they got it. But at this point, they know, and for lesbians to continue to help people who are purposely infecting each other—I think that’s being co-dependent. It’s enabling behavior that destroys people,” Robin Tyler told The Advocate in April 1999. When she said something similar at Creating Change that year, adding, “We will not be there for you this time!” many lesbian feminists stood up and applauded; many others did not.
In a Sept. 10, 2010, post in his blog My Fabulous Disease, blogger Mark S. King wrote about and posted a video about “Condoms vs. Bareback Sex at Gay Men’s Health Summit” in Ft. Lauderdale.
“The evergreen issues of condom fatigue and barebacking managed to monopolize time and vex workshop leaders with a stubborn dilemma: How do you interest gay men in condoms when so many have already opted for sero-sorting, barebacking and risk reduction techniques?” King wrote.
Tony Valenzuela talked to King about that famous 1999 cover of him naked astride a horse on the cover of Poz magazine and concluded, “Condoms are a sacrifice.”
But perhaps most moving was an interview with an HIV-positive man from Nashville nicknamed “Middle” who facilitated a workshop on condoms and casual sex—only to find himself in a room full of barebackers. Middle, who has used condoms for decades for anal sex “with a handful of exceptions,” now feels stigmatized by both HIV-negative men who don’t want him when he discloses his status and by HIV-positive men who only want condomless sex.
“The positive folks are only interested in having unprotected anal sex, and so they will completely dismiss me as a potential sex partner even though there are other things we can do. It’s just not an option for them. And that’s their choice, and I want to respect it. But I still feel stigmatized,” Middle says. “It’s a lot of work, it’s frustrating. It makes me question my values—that’s called old fashioned peer pressure—that I’ve sustained for decades. But maybe I’ll wear down.”
If the AHF initiative qualifies for the November ballot, expect conflicts galore and a whole new twist to the old feminist phrase “the personal is political.”