Examining Bathhouse Policy, NYC Says HIV Infections Up

After saying for years that new HIV infections among gay and bisexual men are high, but stable, a city health department memo given to Gay City News asserts that new HIV infections among those men are increasing.


Health dept. memo suggests sex clubs could be closed with circumstantial evidence

After saying for years that new HIV infections among gay and bisexual men are high, but stable, a city health department memo given to Gay City News is asserting that new HIV infections among those men are increasing.

“New York City is now experiencing an increase in syphilis and an increase in HIV infection in men who have sex with men,” Dr. Thomas Farley, a special advisor to Dr. Thomas R. Frieden, the city's health commissioner, wrote in the November 2007 memo.

The six-page memo, titled “Policy Regarding Bathhouses and Other Commercial Sex Venues in New York City,”was drafted for Frieden and explores the options for dealing with sex clubs and bathhouses.

“In view of this increase it is appropriate to re-evaluate New York's current policies regarding commercial sex venues to see if policy changes could reduce the spread of these infections,” wrote Farley, previously a professor and department chair at Tulane University's School of Public Health and Tropical Medicine.

While some gay and AIDS activists have said for some time that new HIV infections among gay men have increased, as far back as 2002, Frieden said that new infections in that group were stable. The health department has maintained that position since then and data it has released support that view.

In early 2007, the department released a four-year study showing that the estimated new infection rate among all groups in the city, except gay and bisexual men, had fallen with many showing significant declines.

In that study, roughly three percent of the gay men were newly infected in each year, posting the highest rate among all groups in the city, and that rate matched earlier city estimates dating back to 1993.

Farley, who has a medical degree and a masters degree in public health, was referring only to recent reported increases among men who have sex with men (MSM) under 30, Sara Markt, a deputy press secretary in the health department, wrote in an e-mail.

“The info about increases in infection applies to young MSM only (under 30), as previously announced,” Markt wrote. “Infections are decreasing among older MSM.”

The memo explores four options for dealing with the city's sex clubs and bathhouses.

At present, those businesses are subject to the same building, fire, and other codes that govern any business in the city. The only regulation that deals with the sex in these places is a state health code that bans oral, anal, and vaginal sex, with or without a condom, in “any place in which entry, membership, goods or services are purchased.”

Since the code was written in 1985, the city has closed roughly 40 to 50 businesses that allowed such sex on their premises. The vast majority served gay and bisexual men. Frieden has dramatically increased the number of inspections for code violations since 2002 when he became health commissioner.

The first option spelled out in the Farley memo is to maintain the status quo – more inspections, warnings to those places that are found to violate the code, and close those businesses that do not respond to warnings.

The second option is to move more aggressively against the city's remaining bathhouses and make “greater efforts to close sex clubs and 'private sex parties' that have fixed locations, regular hours of operation, and charge a fee.”

In prior closings, the city has typically used information from two or three dozen inspections and cited in excess of 100 violations per business to get a court order temporarily or permanently closing a club. Farley said that standard might not be necessary.

“It is the opinion of the General Counsel's office that we may be able to close sex parties based on circumstantial evidence (that is, without direct observation of sexual activity),” Farley wrote.

The closings are handled by the city's Corporation Counsel's office, essentially the city's law firm, and they may not agree. Markt wrote that the health department had not discussed these options with other city agencies.

The third option is to use the state code “to close all commercial sex venues, including bathhouses currently in operation,” Farley wrote.

“Based on conversations with the General Counsel's office, it may be possible to gather sufficient evidence to close bathhouses as well as 'private sex parties' under this rule based on circumstantial evidence, that is, without direct observations of sexual activity,” he wrote. “[T]his is likely to be challenged in court and will cause anger among gay activists and some AIDS service organizations. Many will argue that closing bathhouses will disperse men to other locations where sexual activity may be riskier.”

The fourth option is to regulate these businesses. The state code would be changed to allow “bathhouses to operate under strict safe-sex rules, and allow 'private sex parties' to either become permitted bathhouses under these rules or risk closure as in option 2.”

The city, under that option, would require these businesses to post and enforce safe sex rules, ban private areas, offer HIV testing, and allow the health department to make regular inspections and survey customers. Markt wrote that the department had not yet selected any option.

“[T]his document was an internal backgrounder about our current policy, what other cities do, and what the options could be if this policy was ever to be revised,” she wrote. “We don't have any plans to change the policy at this point, just wanted to evaluate how NYC and other cities are dealing with the issue… [W]e are not making any moves to change or recommend changes at this point.”