Duke Journal of Gender Law & Policy
Scott Thompson, Abbott, AIDS, and the ADA: Why a Per Se Disability Rule for HIV/AIDS Is both Just and a Must, 15 Duke J. Gender L. & Pol'y 1 (2008), available at https://scholar.law.colorado.edu/faculty-articles/476.
HIV/AIDS should be classified as a per se disability under the Americans with Disablities Act. Such a ruling is justified by the plain language of the act itself, legislative history, administrative regulations, and court precedent. Absent such a ruling, individuals with HIV must demonstrate that they have (1) an mental or physical impairment, (2) that substantially limits (3) a major life activity. While most courts to address the applicability of the ADA to individuals with HIV/AIDS have found that such individuals are disabled because HIV impairs the major life activity of reproduction, such an interpretation leaves open the possibility that courts may refuse to classify those otherwise not interested in or capable of reproduction, arguably including homosexuals, as falling beyond the scope of the ADA's protection.
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