Not much has been said about how AB1576 will affect the gay porn industry. As we all know the gay industry does not routinely require any kind of testing, and it is well known that a significant number of gay performers are HIV+.
I have a few questions about AB1576 that no one seems to know the answers to. First, specifically what tests need to be done in order to comply with AB1576? The law, as written, talks about CDC recommendations, but gives no specifics. And second, does testing positive for any of the required tests actually ban someone from working?
If a person tests positive for HIV, or Hepatitis C are they banned forever, or do those results have to be shared with the scene partners? The Americans With Disabilities Act does allow employers to not hire someone if it can be demonstrated that the work involves a direct threat to pass HIV to a co-worker.
I haven’t heard a whole lot from the gay industry and where they stand on this issue. I don’t recall anyone at any hearings representing the gay industry. Nothing in the law says that the gay industry is exempt from the testing mandate, so exactly what happens if this does become law? Does testing positive get someone banned from working in either the straight or gay industry?
Just a few questions that, in my opinion, need to be answered. And for the record, I do believe in the right to make adult films without condoms. But I also believe that the producers have the obligation to pay for testing, and any real life ramifications for what happens as a result of a performers employment, just like any other business.
13 Responses
AB1576 A Few Questions http://t.co/NSfp1n3068
Specific tests and CDC recommendations.
The Bill can’t name specific tests, to do so would require legislative process to amend/update the law with emerging technology and testing changes. Also the amend/change process would be further bogged down with named test stakeholders playing king of the mountain.
CDC currently has no industry specific recommendations as they make Public Health recommendations. CDC recommendations also don’t name specific tests…they name specific diseases to be tested.
Will CDC recommend viral particle testing for the industry over the general public recommendation of antibody testing? Don’t count on it as a recommendation but look for policy that accepts proof of viral particle testing as meeting the requirement of HIV testing.
Federal Labor anti-discrimination laws mean you won’t see any policy or law that includes/excludes HIV+ Company’s who are concerned that they must allow HIV+ should talk to their lawyer about employees who lost HIV+ anti-discrimination suits because the nature of their job duties would pose a risk to employee. Company’s currently allowing HIV+ will take comfort that there is nothing stating that they can’t continue doing so.
AB1576 mirrors OSHA, the OPIM draft isn’t a rule making document at this time but it includes things that are standard in other long standing policies.
1. Medical records/results remain with licensed health care professional while employer retains documentation of payment for services and limits/accommodation from the health care professional. Documentation can’t be more specific than stating a medical condition justifies limits/accommodation because doing so would be violating patient confidentiality.
2. Post exposure testing…can’t be compelled on someone known to be positive for whatever is being tested.
Performers can’t be compelled to release to co-workers what law says they have a right to keep private.
The contract provider has choices to make and policy to define. Performers look at the contract and policy to exercise their choice of acceptance or refusal. IG HIV+ is a problem then don’t work for a company whose policy is silent or says no problem.
@jilted
If the law says condoms are needed then what “right” is there to believe in? Even with condoms I believe producers should have to pay for all of the ramifications.
For example, If I am employed at a doctor’s office and the business salts the parking lot in the winter to remove ice and I still fall then they aren’t off the hook by any means just because they salted it.
Shooting adult films without condoms is not a right in the workplace. It is what you can do in your free time without pay.
Cpan,\ I am pretty sure I agree with you. What do you think of this?
Regarding condoms being a violation of first ammendment rights….nothing prevents someone from filming others fucking, sucking, sticking thier fists up eachothers asses,,,,,,but once you attach a paycheck, and market if for sale and profit,,,it becomes business, and a work place,,subject to workplace laws.
Is this similar to what you were trying to say?
Lurk,
It might be worth noting, if someone under 1b1576 tests positive for HIV, or anything else, the employer is NOT notified, and the performer is not banned from working. You are correct, the employer only has to show that he paid for it,,,,,the employer never sees the results, nor do the scene partners. AB1576 does not prevent an HIV+person from working.
Of course nothing prevents the individual from sharing the results,,,and that is where a verifiction system like TTS would come in. No need for PASS.
@jilted
Depends…if the employer considers a broken condom or other barrier a risk exposure for someone with HIV that would jeopardize their health they could specify employment fitness to require negative ELISA as well as use viral particle testing for ongoing screening.
If an employer considers the risk of broken condom or other barrier to not pose a risk to HIV+ or other employees they could specify viral particle testing only to HIV to less than 40 parts per ml of blood plasma as a risk measurement to eliminate the higher HIV particle counts known to carry higher risk of transmission.
So…if it’s about protecting performers there is no need for something like PASS and verification would happen by ordering a medical certificate of fitness directly from the provider.
I know it’s hard for many to wrap their heads around the benefits of third party payment…eliminating performer direct pay also eliminates situations like Gonz who knew he had HepC for at least three years, Mr. Marcus having the ability to omit a portion of his test image. It opens the door to alternate anatomical swabbing in test rotations for those with consistent testing frequencies.
This will also require changes to standard model release clauses…IIRC there is a clause requiring model to provide and certify that their STD tests are true, while releasing stakeholder if co-worker models violate that clause in their contract…
New contracts would reflect the stakeholder policies …leaving it to lawyers as to how they word testing, risk reduction and lowest permissible levels
@jilted
“Of course nothing prevents the individual from sharing the results,,,and that is where a verifiction system like TTS would come in. No need for PASS.”
There lies the Crux of the issue…any protocol that relies on individuals sharing their direct test results is equivalent to current …performer choice with respect to condoms. Remember…filmed sex is a workplace and not the equivalent of making personal choices to divulge or not divulge to a partner.
When it comes to workplaces with naturally occurring risks, the employer must reduce or mitigate them to lowest levels…with filmed sex there is the added dimension that they are testing humans vs cave walls or air for methane levels …those inanimate risks don’t have medical privacy concerns..yet the employer is still responsible to measure and reduce.
Stakeholders paying for tests will quickly change their tune about giving the silent nod to bareback escorting with untested clients. Talent will quickly see the value of making responsible off set decisions when those that don’t are passed over for more reliable /less expensive talent not costing production delays.
@jilted
That’s similar to what I am saying. We have the freedom to do what we want as far as porn goes, but the second we do it and people are paid to participate and a product is going to be shipped/broadcasted across the country then laws have to be followed. Free speech does not require financial gain. That is only an advantage of it in certain circumstances according to how laws are written.
The first step is to prevent transmission of diseases. After that happens then it will be easier to get workplace safety laws stopping things like fisting. (Having no HIV is more important than unraveled rectums.) I don’t know how you would regulate fisting in the workplace. Would a fist, wrist, and forearm only allowed to be so large? What about the b-hole? What is the required circumference when gaped? If they move to Nevada and become unionized then will the person who measures have a specific job? Is the director allowed to measure? 😉
The gay industry ran free for a very very long time. It is probably because no one wants to be the person pointing and saying “Look at what the gays are doing” and get descriptive about it. Gay people have a much different culture when it comes to sex and as a result the porn created can reflect that.
Laws are laws though. If you want to shoot unprotected gay porn and sell it then simply drive/fly/unicorn-ride it to a place where it is legal. If that is not an economically-viable way to operate your business then maybe you should look into something else. People bitch that keeping things safe will cost them too much. If you are unable to afford to run a business in a safe and/or legal manner then that is your problem and shouldn’t be that of your employees or anyone else. You should be closing your doors.
People can get multiple strains of HIV and when combined they can progress to full-blown AIDS much faster. HIV fucking HIV is still a “no” as a result. Even if their culture is different a workplace isn’t.
In regards to the ADA one can be HIV positive and still shoot gay porn. They would have to use condoms for all forms of penetration including oral. They may be unable to kiss if you want to take laws seriously. A blowjob scene could be construed as a direct threat. Kissing can too. Especially when certain STD’s can cause bleeding gums or sores in the mouth. Science is science.
HIV-positive men can film themselves doing that with each other all they want and without condoms too. When you make it a workplace shit starts getting real.
Would those with HIV be getting much work if porn was shot following laws? Probably not. Would one be able to claim discrimination? Probably not. A jury isn’t going to go give someone the right to spread HIV in a rare chance. Not being able to perform fellatio is much different than someone being denied a job as a meat cutter because they were HIV-positive.
It will come down to them. Picture a jury ruling in favor of a guy that is basically saying “I have HIV and they won’t hire me to fuck him even though he has it too.” If I was on that jury I would view being given the case as an insult.
@cpanzram
One of the oddities I see in ab1576 is omission of oral sex, as if it were tailored to the reduction of HIV & HepC with lower rates of oral transmission vs the overall risk of contracting a std orally.
Anyway with that oddity the dental dams are removed from folks screaming hazmat suits 😉
@lurking
I think CA understands this industry will exist even if they ban it. Therefore, they allow some things to occur like oral sex. Blowjobs with condoms is one of those things that are sliding.
The porn industry is being allowed to operate, but they just have to do a few things. Doesn’t make things “safe” in regards to the definition. People need to learn when something good happens.
CA isn’t stopping porn. They are allowing it to continue in an unsafe fashion, but it is slightly safer than before.
Just seemed odd as inconsistent with known STD risk to oral cavity and the history of the bill. Porn being porn I can picture company’s opting to go all oral vs condom 😉
Re the ADA & HIV+ the goal of treatment being undetectable viral levels combined with frequent testing to ensure acute HIV isn’t on set would be beneficial to both +\- to reduce Acute & co/opportunistic infections.
Aside from AB1576 it seems gay productions have been silent about the judgement against Marcus with gay for pay not sharing the culture & realistic fears re criminal knowledge encouraging them not to test.
Jilted: If the trial courts ruling is upheld in the Vivid appeal – and I believe it will be upheld – then the First Amendment vs. workplace safety is a moot issue. In the trial judge’s ruling, he dismissed the First Amendment argument out of hand – completely took it off the table, saying that in his view there was no constitutional issue here. He focused on workplace safety. If he’s over-turned by the appeals court on that point – he ruled against porn on other points as well – then its a potentially different ball game. Either side can request an en banc hearing – a hearing of the entire court; either side can try to take it to the Supreme Court. Or, it’s sent back to the trial court judge to reconsider.
Here’s the thing: Appeals court judges give great deference to the trial court judge who heard the arguments, listened to any witnesses, and read the original pleadings and evidence. The trial court judge has to be plainly wrong, meaning so wrong that it would be obvious to a third grader who’d watched a couple of episodes of The People’s Court.
Porn could still win – the ninth circuit is the most liberal appeals court in the country so if there’s a group of judges likely to be sympathetic to porn’s argument, its that group – but its an uphill slog.