Do LGBT Individuals in Substance Abuse Treatment Have Any Legal Protections?

Yes, in areas unrelated to sexual orientation, they do. The Federal Rehabilitation Act (29 U.S.C. §791 et seq. (1973)) and the Americans with Disabilities Act (ADA) (42 U.S.C. §12101 et seq. (1992)) prohibit discrimination against individuals with “disabilities,” a group defined as including individuals who are alcoholics or have a history of drug abuse. Together, these laws prohibit discrimination based on alcoholism or a history of drug abuse in the services, programs, or activities provided by:

• State and local governments and their departments, agencies, and other instrumentalities (29 U.S.C. §794(b) and 42 U.S.C. §§12131(1) and 12132)

• Most providers of “public accommodations,” including hotels and other places of lodging, restaurants and other establishments serving food or drink, places of entertainment (movies, stadiums, etc.), places the public gathers (auditoriums, etc.), sales and other retail establishments, service establishments (banks, beauty shops, funeral parlors, law offices, hospitals, laundries, etc.), public transportation depots, places of public display or collection (museums, libraries, etc.), places of recreation (parks, zoos, etc.), educational establishments, social service centers (day care or senior citizen centers, homeless shelters and food banks, etc.), and places of exercise and recreation (42 U.S.C. §§12181(7) and 12182). The Rehabilitation Act and ADA (Rehabilitation Act and key implementing regulations: 29 U.S.C. §793 and 29 CFR Part 1630; §794(a), (b)(1), (b)(3)(A) and 45 CFR Part 84; Americans with Disabilities Act and key implementing regulations: 42 U.S.C. §§12111(2) and (5) and 12112 and 28 CFR Part 35, Subpart C, and 29 CFR Part 1630) also provide protection against discrimination by a wide range of employers, including:

• Employers with Federal contracts worth more than $10,000

• Employers with 15 or more employees

• Federal, State, and local governments and agencies

• Corporations and other private organizations and individuals receiving Federal financial assistance

• Corporations and other private organizations and individuals providing education, health care, housing, or social services and parks and recreation sites

• Labor organizations and employment committees.

The Rehabilitation Act and ADA also classify individuals with HIV/AIDS as individuals with disabilities and prohibit employers, government agencies, and places of public accommodation from discriminating against them on the basis of seropositivity. Because gay men, other men who have sex with men, and injection drug users constitute the largest portion of persons diagnosed with AIDS in the United States, this protection is important. For a detailed discussion of the scope of protection offered and how these statutes have been applied in cases of individuals with HIV/AIDS, see Treatment Improvement Protocol 37 Substance Abuse Treatment for Persons With HIV/AIDS (CSAT,2000), available from SAMHSA’s NCADI at 800–729–6686. Many States also have laws protecting people with HIV/AIDS from discrimination. Local HIV/AIDS and gay and lesbian advocacy groups and resource centers are often able to provide information and advice about both Federal and State laws in this area.

These laws can be helpful to LGBT clients and the programs treating them. If a program refers a client to a vocational rehabilitation training program or a dentist and he or she is rejected because of a history of drug abuse or HIV positivity, there is legal recourse. Programs should also be aware that they, too, are most likely covered by these laws; for example, they may not discriminate against clients with HIV/AIDS or against job applicants or employees with HIV/AIDS or histories of substance abuse.

(Note that ADA specifically excludes “transvestism, transsexualism, pedophilia,exhibitionism, voyeurism gender identity disorders not resulting from physical impairments, and other sexual behavior disorders” from the definition of “disability.” Psychoactive substance use disorders resulting from current illegal use of drugs are also excluded.)