With world AIDS Day taking place on Saturday 1 December, Nick Marshall considers whether the time has come to stop treating HIV as a “disability” under the Equality Act 2010.

The “deemed disability”

The Equality Act 2010 gives protection from discrimination, harassment and victimisation on the basis on certain “protected characteristics”, one of which is disability. Under the Act, a person has a disability if they have “…a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on [his] ability to carry out normal day-to-day activities”.

However, there was some concern that people with certain illnesses and conditions would fall outside the definition of disability under the previous disability discrimination legislation. HIV was one of these illnesses and so, from 2005, it was deemed to be a disability (along with certain other medical conditions, such as cancer and MS), which meant that people with HIV were automatically considered “disabled”. This approach was replicated under the Equality Act 2010.

Perpetuating stigma

The “HIV/AIDS” moral panic of the 1980s has cast a long shadow over the public debate on HIV. However, there have been great advances in detecting and treating HIV over the last 30 years. For example:

• In 1996, the total life expectancy for a 20-year-old with HIV was 39 years. In 2011, that had increased to nearly 70 years.
• Many people living with HIV receive effective treatment, which means they cannot pass the infection on through sex.
• It will also often not be apparent that someone is living with HIV; they can live “normally” (whatever that might mean…!) without their status being outwardly obvious. Often, they will have to “come out” as HIV positive for their status to be known (see Lloyd Russell-Moyle MP’s inspirational speech to the House of Commons last week).

Many HIV-positive people will not struggle to carry out day-to-day activities (a key part of the standard definition of a “disability” under the Act), and many will find it surprising, and troubling, that the law treats them as if they will. Deeming HIV to be a “disability” therefore risks perpetuating the stigma that people living with it face in their day-to-day lives, and infringing on their dignity and self-worth. If the law has this consequence (albeit unintentionally), it is right to question whether the law needs to be reformed.

A different solution?

Removing legal protection from HIV-positive people is clearly not the right answer. People living with HIV still suffer from appalling discrimination, both at work and in society more widely. The law must continue to prohibit this.

However, a new balance should be struck. For example, instead of HIV being deemed to be a disability, HIV status could be added to the Act as a new protected characteristic. Legal protections could mirror those from which people living with HIV already benefit, e.g. the obligation for an employer to make reasonable adjustments, such as allowing HIV-positive employees to attend clinics or to adjust their working hours. Those who also meet the “standard” definition of “disability” under the Act would also have the protection from disability discrimination that they currently enjoy.

Some people might dismiss this solution as simply changing labels. But labels matter; and it is particularly important for those of us who are not living with HIV to appreciate that.