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Slapped by the Past
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New discrimination brings up old wounds for someone whose life was derailed by harsh HIV criminalization laws

BY TIM MURPHY

Last fall, when Nikko Briteramos went to get a haircut in his L.A. neighborhood of Leimert Park, he did not expect that he was about to get slapped in the face by his past.

In 2002, then a popular 19-yearold student on a basketball scholarship at a small college in South Dakota, Briteramos became the first person charged under the state’s HIV criminalization laws for “knowingly exposing a female sex partner to HIV.”

He had received his diagnosis shortly prior to the sexual activity that brought about the charges, but he didn’t fully believe it, he says, and also feared that if he insisted on a condom, which they hadn’t used before, the woman would suspect something was up. (She remained HIV-negative.)

The case sparked sensational global headlines, particularly after South Dakota’s governor said that Briteramos had committed the equivalent of shooting someone in the head. Initially charged with five counts of intentional exposure and facing up to 75 years in prison, Briteramos ultimately got a 90-day sentence and a judge’s order to stay in school.

Briteramos attempted to comply with the order during a brief furlough from jail intended for him to reenroll in school. While attempting to reenroll, Briteramos found out that he had lost his basketball scholarship and could not afford to stay in South Dakota or in school. The news hit hard, and he did not return to jail for more than 5 hours after the furlough ended. When he returned, he was found to have violated the court order, sending him to state prison for 18 months.

After serving that sentence, Briteramos, on HIV meds, went back to Chicago, his hometown, enrolled at Chicago State University, played basketball there, and changed his major to microbiology. With successful treatment for HIV and an undetectable viral load, this means he had little, if any, risk of transmission to sexual partners.

But with his name all over the internet, he could not shake what had happened in South Dakota. Women would be attracted to his good looks, he says, then find out about him and shun him. In his Chicago dorm, his roommate, scared of getting the virus, moved out.

“I started getting tired of being in this environment where I was constantly scrutinized,” he says. “I started getting stressed. I’d wanted to be a lot of big things in life, like a professional ballplayer, and I felt like I was losing.”

"I want people to understand that this was discrimination and that you can’t get HIV from giving someone a haircut.”
—  Lambda Legal client Nikko Briteramos

He was kicked off the basketball team when alcohol was found in his room. He started smoking pot. Failing every class and short on cash, he dropped out and moved to Las Vegas for a relationship that petered out.

“There are so many collateral consequences of HIV criminalization laws that permanently stigmatize you in society and leave you with a criminal record,” says Stefan Johnson, who heads Lambda Legal’s Help Desk. “It was very difficult for Nikko to restart his life.” Such laws, often passed in the 1980s and 1990s, are being challenged in many states, by Lambda Legal and others, with some—California, Colorado, Iowa—recently repealing them.

Nonetheless, Briteramos tried. In 2016, he moved to Los Angeles, where he has relatives, intent on starting a career as a personal trainer. And then last October, when he went into that barbershop, his past came calling again.

He was waiting for his buzz, he recounts, when one of the barbers, whom he’d known in Chicago, recognized him and said hello. Then he whispered something to the chief barber, who shortly thereafter asked Briteramos if he was that HIV-positive Nikko Briteramos.

Briteramos said yes. The chief barber shook his hand and said no hard feelings, but he couldn’t serve him because he had a reputation to think about.

“I just walked away, tired, feeling like this would never end,” says Briteramos. But the more he thought about it, the more he felt like his rights had been violated. He filed complaints with the L.A. County Board of Cosmetology and with an Americans with Disabilities Act online portal. It’s been long-established that the risk of transmission by merely living or working with people with HIV is essentially zero. Then he called the Help Desk at Lambda Legal, which he’d known about since his 2002 case.

Lambda Legal is taking on the matter. “It’s a clear violation of both the ADA and California’s Unruh Civil Rights Act,” which forbids disability discrimination in this context, says Taylor Brown, Lambda Legal Tyron Garner Memorial Fellow. “The proprietor made clear to him that he would not serve him because he was living with HIV.”

Lambda Legal is partnering on the case with the Black AIDS Institute, which advocates for people of color living with, or at risk for, HIV/AIDS. “We want to shed light on HIV stigma in the black community and help provide accurate information, as well as make clear that service providers can’t do this, because it’s illegal,” says Johnson. Misinformation and prejudice continue to fuel the firing, mistreatment and criminalization of people living with HIV.

As for Briteramos, he admits that he feels lost and he’s not sure what he wants to do next. He spends a lot of time going to the gym and reading. But he’s very clear about what he wants out of the Lambda Legal suit.

“I want this to go everywhere and raise awareness,” he says. “I want the barber to apologize. I want people to understand that this was discrimination and that you can’t get HIV from giving someone a haircut.”

The lead plaintiff in Lambda Legal's historic victory in Puerto Rico, Daniela Arroyo González.

POSITIVE IDENTIFICATION

Just a handful of states continue to block transgender people from correcting birth certificates to reflect who they really are. But Lambda Legal and these fierce plaintiffs are pushing back—and we won't stop until everyone's right to accurate IDs is protected

In the summer of 2017, Stacie Ray saw an opportunity. The 45-year-old Columbus, Ohio, truck driver, who is transgender, had a chance to leave a job that made her drive halfway across the state every day for one where she could stay in town, with higher pay and better benefits. All she needed was to get federal certification that she knew how to carry hazardous material in her semi.

So she went to her local TSA office, which handles the background check for the certification. She’d had the gender marker on her driver’s license corrected to match her gender identity, but she couldn’t get the same done on her birth certificate, because Ohio doesn’t allow it. And that’s where she hit the snag that nearly cost her a great new gig.

“The TSA lady said to me, ‘Honey, you gotta change your driver’s license back to male or I’m not doing this,’” Ray recalls. “And she says this loudly in front of other people. So I’m mad as a bull and crying and I go straight to the Ohio Department of Health’s office of vital stats and say, ‘My birth certificate is stopping me from getting a background check.’ And they say to me, ‘Ohio doesn’t allow this correction, so it doesn’t even matter if you sue.’”

But sue is exactly what she did, in conjunction with Lambda Legal and fellow named plaintiffs Ashley Breda and Basil Argento. “Where do they get the right to determine who we are?” asks Ray. “We need equal protections and rights.”

The Ohio case (which Lambda Legal is doing together with the ACLU and ACLU Ohio) is important, because the state is one of only three—the others are Tennessee and Kansas—that continues to prohibit trans people from correcting the gender marker on their birth certificate. That’s an all-important document needed for everything from applying for jobs and schools to obtaining marriage licenses and state health care programs.

“Our most fundamental ID is our birth certificate, because we use it to access other ID documents,” says Kara Ingelhart, Lambda Legal law fellow and a lawyer on the Ohio case. “It’s deeply troubling that trans folks are forced to use a document that doesn’t match their gender identity. That can be really traumatic. It can also expose them to harassment and violence, because many trans people are perceived accurately as the gender they identify as, but when they have to show an employer a birth certificate with an incorrect gender marker, they lose control over their own life narrative.”

Indeed, according to the 2015 U.S. Transgender Survey, almost a third of trans folks who showed an ID that conflicted with their perceived gender were harassed, denied benefits or services, discriminated against, or assaulted.

The issue ties directly into previous battles for lesbian and gay rights, says Ingelhart. “Fundamental rights, equal protections and privacy rights in the face of discrimination on the basis of sex—these are all arguments that we have relied on heavily for LGB people or those in same-sex relationships,” she says. “The legal principles are the same. And let’s not forget that trans folks are often LGB folks, too.”

Most courts thus far have bowed to those principles in ruling that trans people have the right to correct their birth certificate gender markers. Idaho became the latest, in April, after a suit brought by Lambda Legal. Dani Martin, 32, a food-service worker outside Boise, was the named plaintiff in that case. (Another chose to remain anonymous.)

In the fall of 2015, while preparing to acquire a passport, Martin realized she first needed to update the gender marker on her driver’s license. She went two years without being able to get a passport. Then a local trans activist, Emilie Jackson-Edney, told Martin about Lambda Legal’s case, which she joined, ultimately appearing in court before a federal magistrate judge.

“I was nervous,” she says. “I’d never been in a federal court.” But when the judge told the state to write a temporary rule allowing trans people to correct their gender marker, Martin was thrilled. “My spouse and I are really excited,” she says. “Finally I’ll have all the documentation validating who I am.” (The rule will be made permanent in the next state legislative session.)

Also in April, a U.S. district court struck down Puerto Rico’s prohibition on trans people correcting their birth certificate gender markers. “What’s unique about the case,” says Lambda Legal Senior Attorney Omar Gonzalez- Pagan, “is that the prohibition was based on a reading of the law from Puerto Rico’s Supreme Court 13 years ago.”

He says that each ruling striking down such prohibitions across the country builds the precedent against the few hold-outs. “These remaining jurisdictions that prohibit corrections to birth certificates are outliers,” he says. “It’s hard to defend these positions in court. Puerto Rico tried and failed, and Idaho didn’t even try.”

Victoria Rodríguez Roldán, 29, a Puerto Rico native who is now the senior policy counsel for the National LGBTQ Task Force in Washington, D.C., and director of its Trans Project, was one of the Puerto Rico plaintiffs. The others were Daniela Arroyo González and a transgender man who goes by J.G.

“It’s been one of my great goals to get to this point,” Rodríguez Roldán says, “because one of my first memories as a trans woman was Puerto Rico’s Supreme Court saying back in 2005 that we trans people were not worthy of recognition on our IDs. So this new ruling closes that circle for me.”

The rulings are also a reminder that courts continue to decide in favor of trans rights even in the Trump era. “This administration is trying to erase trans people with its trans military ban,” says Lambda Legal’s Ingelhart. “But we’re still making progress with the visibility, acceptance and affirmation of trans lives.”

Her colleague, Gonzalez-Pagan, agrees. “These decisions impact the administration, too, because any discriminatory actions they take against trans people will be impacted in court by pro-trans decisions like those rendered in Puerto Rico and Idaho,” he says.

Meanwhile, in Ohio, as Ray waits for her own state’s ruling, she was still able to get that new job. She contacted Sen. Sherrod Brown, who intervened on her behalf so she could get her hazmat certification. Her lawsuit continues. “The state doesn’t have the right to determine who I am,” she says.

Now, less time on the road means more time to play with Sam, her 12-year-old boxer mix. “He’s my old man and we cuddle,” she says.

Photo by: photo by Jason Smith
“Trump’s legislative agenda is failing, so he’s trying to push as many right-wing ideologues onto the bench as he possibly can.”— Sasha Buchert, Lambda Legal staff attorney

BATTLE ROYALE

Trump is trying to stack federal courts with anti-LGBT conservatives, and Lambda Legal Legal is fighting him at every step

“Meet Kyle Duncan. He’s a lawyer who’s spent a career disrespecting same-sex relationships and persecuting LGBTQ families. Now Donald Trump wants to make him a federal judge. He would be appointed for the rest of his life.”

That’s the warning in a video Lambda Legal released in early February, sounding the alarm against Duncan, whom President Donald Trump had nominated for a seat on the Fifth Circuit Court of Appeals, based in New Orleans and covering parts of the Deep South, where LGBTQ protections are already anemic. (He was confirmed in late April.) At press time, the video has been viewed more than 100,000 times and retweeted more than 1,000.

It’s just one of the ways that Lambda Legal has been pushing back against a string of Trump picks for federal courts, all of them among the most hostile ever nominated not only to LGBTQ rights but to civil rights more broadly. Lambda Legal has led the charge among a wide range of groups opposing these nominees— doing research, drafting letters, talking to senators, holding rallies and more.

“Trump’s legislative agenda is failing, so he’s trying to push as many rightwing ideologues onto the bench as he possibly can,” says Lambda Legal’s Sasha Buchert. “They’re all straight white men in their mid-40s who will be on the bench for a lifetime, long after Trump is gone—unless we can do more to stop them now.”

Lambda Legal was part of the chorus of outrage that successfully pressured the White House to drop the nomination of Jeff Mateer, who compared marriage equality to bestiality and called transgender people part of “Satan’s plan.”

Duncan is nearly as worrisome. “If he’d had his way, there’d be no Obergefell,” says Buchert, referring to the Supreme Court ruling that made marriage equality the law of the land. “As an attorney, he personally asked the Supreme Court to strike down a lower court ruling against the marriage ban.”

He’s also still defending HB2, says Buchert, North Carolina’s anti-trans bathroom bill. And he’s in court opposing Gavin Grimm, the trans teen in Virginia fighting for his right to use the bathroom at school.

Buchert notes that Duncan also asked the Supreme Court to strike down a lower court ruling finding that North Carolina’s voter ID law aimed to “target black Americans with almost surgical precision.” And he was the lead counsel for Hobby Lobby in the 2014 Supreme Court case that led to the ruling allowing some companies to deny employees coverage of things like birth control if they had religious or moral objections.

“He was absolutely, handsdown, the most pernicious of the Trump nominees,” says Buchert.

A nomination is still pending for Matthew Kacsmaryk, proposed as U.S. district judge for Northern District of Texas. He has represented an Oregon bakery in its appeal of a ruling that said it can’t discriminate against LGBTQ customers. And he has suggested that transgender people are “delusional” and has called the effort to secure LGBTQ rights “public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology.”

Howard Nielson, nominated to be a district judge in Utah, is part of a law firm that tried to get a San Francisco judge removed from a key marriage equality case on the grounds that the judge was in a same-sex relationship. That, notes Buchert, is like arguing that a judge of color is too biased to rule in a case about race, or a female judge in a case about sex discrimination.

Even more bad nominees are backed up in the pipeline—which is why, Buchert stresses, it’s so important that people urge their senators, regardless of party, to oppose these picks. Schedule a visit to their home-state office, pick up the phone or tweet Lambda Legal’s alerts at them, she suggests.

“We’re fighting these picks as hard as we can,” Buchert says. “They’re all just variations on Trump-in-a-robe.”

Follow us @LambdaLegal on Twitter or go to lambdalegal.org/judicialnominees for updates.