Court Strikes Down HIV Discriminatory Foster Care Ban
(NEW YORK, March, 6, 2001) — In a decision that advances science and rationality over fears about HIV, a federal court has ruled that a Pennsylvania county cannot refuse to place foster children in a home simply because a youngster already in the family has AIDS, Lambda Legal Defense and Education Fund said Tuesday.
Lambda AIDS Project Director Catherine A. Hanssens said, “This ruling is wonderful news for people with HIV as well as for a potential foster family and the children who can benefit from their care. Unfounded fears that rationalize discrimination against people with HIV are particularly pernicious when the source is a government agency. This agency’s harmful overreaction has now been corrected.”
The couple in the lawsuit, identified as Mary Doe, 52, and John Doe, 51, of State College, Pennsylvania, applied in 1998 to become foster parents. Before her marriage, Mary Doe had won awards for her dedication to foster children with special needs, taking in eight foster children and adopting seven of them. Two of those seven children, including a severely disabled 11-year-old son with AIDS, still live with the couple.
But when the Does revealed that one of their sons has AIDS, Centre County Children and Youth Services created a policy barring the placement of HIV negative children in homes with children who have HIV. The county insisted there is always a risk of sexual assault from a foster child that could lead to HIV infection, and that roughhousing with a child with HIV could also transmit his infection to the foster child. A federal district court agreed.
Lambda joined the appeal, arguing on behalf of 13 public health, AIDS, and child advocacy organizations that such discrimination against this family lacks any sound public health basis and violates the Americans with Disabilities Act by relying on generalized fears about HIV rather than an assessment of the individual family’s circumstances and each child’s behavior.
In its unanimous decision, a panel for the Third Circuit Court of Appeals reversed the lower court ruling, criticizing its reliance on “a bland and generalized set of statistics” about the risks of sexual abuse among foster children and speculations about HIV transmission through physical roughhousing. The court concluded that “the County’s blanket policy discriminates against the Does because of [their son’s] HIV positive status even though the probability of HIV transmission, and consequently the risk, is next to zero.”
The court also rejected the County’s “informed consent” exception to the policy, which would have allowed a foster care placement if the Does revealed that a family member has AIDS to the child’s biological parents, and the parents gave written consent to the placement. The court said that there was “no basis for engrafting the concept” of consent onto the federal disability discrimination law.
“The court rejected the County’s portrayal of HIV as a risk during play and its painting of all foster children as sexual predators,” said Lambda Staff Attorney Colleen Sullivan, adding, “Clearly, the County grossly overreacted to bar this wonderful family and others from serving as foster parents because of exaggerated fears about HIV that would deny needy children a chance for a loving home.”
Lambda’s amicus brief, authored by Hanssens and Sullivan, was joined by leading public health and children advocacy groups: Attorneys for American Public Health Association, AIDS Law Project of Pennsylvania, Alliance for Children’s Rights, the Juvenile Law Center, Lawyers for Children, Legal Aid for Children/Pittsburgh, the Legal Aid Society of New York/Juvenile Rights Division, the National Alliance of State and Territorial AIDS Directors, National Center for Youth Law, the Support Center for Child Advocates, the Youth Law Center, the Association of Maternal and Child Health, and AIDS Alliance for Children, Youth and Families. The Does are represented by Matthew M. Gutt of the law firm Ballard Spahr Andrews & Ingersoll and the ACLU of Pennsylvania.
Headquartered in New York and with regional offices in Chicago, Los Angeles, and Atlanta, Lambda is the nation’s oldest and largest legal organization dedicated to lesbians, gay men, and people with HIV/AIDS.
CONTACT: Peg Byron 212-809-8585 x 230, 888-987-1984 (pager)
Catherine A. Hanssens 212-809-8585 x 215