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HIV Ban Amended, Not Lifted
By: DUNCAN OSBORNE
10/02/2008

A federal regulation that creates a new waiver program for HIV-positive visitors to the US and was finalized by the Department of Homeland Security (DHS) is drawing objections from gay groups who say the federal government should instead be moving toward ending the HIV travel ban entirely.

"The timing of these regulations is deeply troubling," said Victoria Neilson, legal director of Immigration Equality, a group that aids gay immigrants, in a statement. "In July, Congress issued a bipartisan message to this administration: remove HIV as a barrier to travel and immigration. Instead of simply ending the HIV travel ban, the administration is again treating HIV differently from any other medical condition."

The US has banned HIV-positive visitors and immigrants since 1987, when the Department of Health and Human Services (HHS) added HIV to the list of communicable diseases that bar entry. In 1993, Congress enacted a law that required HHS to keep HIV on that list, but that law was repealed in July. HHS must still remove HIV from its list to end the ban.

HIV-positive travelers have always been able to obtain waivers to the ban, but that process is seen as cumbersome and intrusive. DHS, which oversees entry into the US, proposed the new waiver program late last year saying it would streamline the waiver efforts. Groups objected to the new program.

"It's a Band-Aid on a major problem," said Brian Moulton, associate counsel at the Human Rights Campaign (HRC), the nation's leading gay lobbying group. "It's purportedly going to make it easier for people to get short-term, less than 30 days, entry into the country."

On September 20, an HHS spokeswoman, noting Congress' repeal of the 1993 law, told the Associated Press, "We're working hard to revise the regulation and it's our goal to have it completed during this administration."

The spokeswoman, Holly Babin, said that removing HIV from the list was "a time-consuming process, and we are giving it the attention it deserves in an effort to anticipate all issues and get it right."

When DHS issued the final regulation on the waiver program on September 29, the agency stated in the regulation text, "HIV remains on that list until HHS amends its regulation. HHS has indicated its intention to do so; pending such action, any alien who is HIV-positive is still inadmissible to the United States."

What may further complicate any effort to take HIV off the HHS list during the remaining four months of the Bush administration is a May 9 memo from Joshua Bolten, the White House chief of staff, to all federal agencies telling them that any new regulations had to be proposed by June 1 and finalized by November 1. The only exceptions were for "extraordinary circumstances," Bolten wrote. While the memo is not a rule or law, it is an additional hurdle that any proposed regulation must overcome.

Babin and a second HHS spokesperson did not respond to emails and a call seeking confirmation of her comments to the Associated Press. Gay City News also asked if the Bolten memo was creating an obstacle to HHS taking HIV off the list.

All of this is frustrating for activists who have fought for years to get the ban lifted. The ban has long been seen as retrograde and at odds with common sense public health practice.

The ban was originally championed by the late Jesse Helms, a conservative North Carolina senator with a long anti-gay record. That it remains in force five years after Helms left office is particularly galling for some.

The fact that a second federal agency has now put in place a new waiver program that is seen as not improving on the original waiver effort is also frustrating.

"We are on the eve of lifting this ban once and for all," Neilson said in the statement. "Why is the administration setting new waiver requirements in stone now? The time has come for this administration to finish the job that Congress started this summer. It's time to lift the HIV ban."

HRC's Moulton said his group remained hopeful that HHS would act.

"It doesn't make us less hopeful, but it is frustrating that they would use the time and energy of the government to do this when we know that HHS can use its authority to lift the ban entirely," he said.

©GayCityNews 2008