THE CASE FOR THE TEMPORARY CLOSURE OF COMMERCIAL SEX ESTABLISHMENTS DURING THE AIDS CRISIS: Throwing Out the Baths with the Bathwater?
Web editor’s note: As the controversy about commercial sex establishments raged in San Francisco, Mike attempted to initiate a discussion among gay and AIDS activists regarding this issue. As an original member of the fledgling New York State AIDS Advisory Council, he repeatedly tried to get that body to seriously consider state-mandated closure. What follows is part of the assignment he took on for the Council: stating the case in favor of closure. In the end, he voted with the majority of the Council, against closure, no doubt infuriating a number of fellow Council members — certainly Peter Vogel and probably Ginny Appuzo — who thought the best way to avoid state-mandated closure was to simply not mention it. For a similarly conversational, latter-day exposition of the opposing position, see The Guide’s interview with Richard Mohr. [LINK BROKEN]
POSITION: Bathhouses, backroom bars and other commercial establishments which permit “high risk” sexual activity on their premises should be temporarily closed during the AIDS crisis.
Written 1 December 1984
by Michael Callen
© 1997 the Estate of Michael Callen
all rights reserved
Q: Should bathhouses, back-room bars and other establishments that permit high risk sexual activities on their premises be temporarily closed?
A: Although the exact cause or causes of AIDS remain(s) unknown, the overwhelming medical consensus is that AIDS is a sexually transmissible disease involving infection with a virus or viruses, possibly in conjunction with other factors. U.S. and French researchers have recently proposed that a newly-identified retrovirus (HTLV-III or LAV) is the “probable cause” of AIDS. A growing number of researchers believe that infection with LAV/HTLV-III is an essential factor in the development of AIDS. The logic which underlies the recommendation that commercial sex establishments be closed temporarily during the AIDS epidemic is as follows:
(1) AIDS is a sexually transmitted disease with a three-year mortality rate estimated at greater than 80%;
(2) data indicate that an individual’s risk for developing frank AIDS increases significantly as his number of different sexual partners increases;
(3) commercial sex establishments are in business to encourage and permit gay men to have multiple sexual contacts on their premises;
(5) temporarily closing such establishments would likely significantly reduce the incidence of AIDS (and other STDs) by drastically reducing (though obviously not eliminating) the opportunities for gay men to engage in high risk multiple sexual contacts.
A: The location in which one chooses one’s sexual partners and in which sexual activity itself takes place definitely effects one’s risk for developing AIDS and/or other STDs. Three interrelated factors determine an individual’s chances of acquiring an STD: (1) how often one has sex outside of a mutually monogomous context; (2) which sex acts one chooses to perform (since not all sexual activity is capable of transmitting infectious agents); and (3) the incidence of disease among those with whom one has sex.
Behavior is often situation specific. From the standpoint of risk for the transmission of AIDS or other STDs (such as Hepatitis B & D), there are obvious and important differences between commercial sex establishments and other facilities such as non-backroom bars, community centers, etc. in which gay men socialize. What commercial sex establishments “sell” is the opportunity to have sex with an unlimited number of partners. At a commercial sex establishment, one is presented with the opportunity for immediate sexual gratification with a minimal investment of time and the opportunity to have sex with many different partners during a single visit. Barriers to immediate and unlimited sexual gratification are reduced to a minimum: clothing is removed; the sounds and sight of sexual activity act as inducments to engage in sexual activity; the lighting is low; an orgy room is provided; lubrication is provided; and talking is customarily discouraged or made difficult. In addition, many patrons judgment is compromised by the use of alcohol and drugs.
Another factor which makes commercial sex establishments riskier than other settings is the fact that a partner met at a bathhouse is more likely to be infectious for a variety of STDs. Attendance at commercial sex establishments can be viewed as a marker of promiscuity; this in turn is a marker for increased likelihood that an individual is infectious for one or more sexually transmitted diseases. This is so because the partner one selects in a commercial sex establishment is himself likely to be engaging in multiple sexual contacts and is therefore statistically more likely to be diseased than is a partner selected in another setting. (See generally Ostrow, Sandholzer and Felman, “Sexually Transmitted Diseases in Homosexual Men.” and the Judson study of STD screening in a Denver bathhouse.)
More than a decade of experience teaches that in bathhouses and backrooms, diseases spread geometrically. Although the rule is not absolute, common sense tells the gay-man-on-the-street that having sex with someone you meet in the Mineshaft poses a greater risk to one’s health than does going home with someone whom you’ve met and talked with at Uncle Charlie’s.
Q: Isn’t state-mandated closure of commercial sex establishments an awfully drastic action?
A: It is estimated that presently each day in New York City four gay men find out they have AIDS. The word “crisis” becomes more appropriate with each passing day. Unless something drastic is done to curb the geometric progression of this epidemic, CDC estimates predict that tens of thousands of gay men will die from AIDS before the end of this decade. In the midst of this devastating health crisis, we have a difficult judgment call to make. There are no simple answers. However, weighing the civil rights issues against the public health issues, many believe that temporary closure of commercial sex establishments represents the best chance to bring about a “quick and dirty” reduction in the rate of increase of AIDS.
Q: But if it’s true that a majority of gay men have already been exposed to the LAV/HTLV-III as some antibody studies have shown, then why risk taking such a drastic action?
A: Many researchers believe that mere infection with LAV/HTLV-III is insufficient to produce frank AIDS. Those researchers have suggested that repeated infection with common viruses and other STDs may in fact be crucial to the development of frank AIDS. If this is so, limiting exposure to common STDs would significantly reduce the likelihood that those already infected with LAV/HTLV-III will go on to develop serious clinical illness.
Moreover, the defense that commercial sex establishments should not be temporarily closed because a majority of gay men may have already been exposed to LAV/HTLV-III is offensively selfish and shortsighted. Those who believe that LAV/HTLV-III are the sine qua non of AIDS have an ethical obligation to take every reasonable measure to insure that those who have not yet been exposed to these retroviruses do not get exposed to these retroviruses. To admit defeat–to say that it’s too late to have any impact on AIDS–is to sell out those gay men (many of whom are adolescent) who are beginning to grapple with issues of sexual identity. Gay youth deserve to inherit a world in which coming out and having one’s first sexual experience need not be viewed as a choice between sex and death!
Q: Has there ever been any situation analagous to the present issue of bathhouse closure?
A: There are no public health analogies which quite capture the complexity of the problem presented by state-licensed commercial sex establishments operating during an epidemic of an often fatal sexually transmitted disease.
But central to the case for temporary closure is the belief that businesses which are in business to encourage and permit citizens to engage in high risk activity on the premises may legitimately be regulated or even closed during a public health emergency. The question is this: Is sex which occurs in occurs in a sauna public or private?
Commercial sex establishments occupy a confusing grey area between these two poles; they possess elements of both a public and a private nature. They are public in the sense that any (male) member of the general public can pay his fee and walk in. Unlike a private home, they are businesses and as such legitimately subject to the same degree of tax and other regulation as any business. Also, unlike private homes, bathhouses are licensed and inspected by the City Health Departments as is any sauna or gym. (Similarly, backroom bars which sell liquor are regulated by the State Liquor Authority.)
For those who emphasize the commercial/public aspects of bathhouses, backroom and similar sex sex establishments, it becomes possible to make a crucial civil rights distinction between appropriately regulating a business which permits high risk sexual activity to occur on its premises and inappropriately regulating truly private consensual sexual activity which occurs in the privacy of someone’s home. From this perspective, temporarily closing commercial sex establishments during an epidemic of an often fatal sexually transmitted disease is in some sense akin to closing down a restaurant because many of its patrons got sick and died as a result of food consumed on its premises.
Q: Are there any examples of other businesses being closed down by the Health Department for the protection of the public’s health?
Many examples immediately come to mind. The Department of Health regularly closes businesses which pose a threat to the public health. Restaurants are regularly inspected; those which do not meet standards are ordered to correct violations or risk closure. If the disgruntled owner of a restaurant which had been closed for public health reasons argued that the civil rights of his/her customers were being violated, few would be sympathetic.
Saunas and swimming pools are also regulated. Those which fail to meet established standards of cleanliness are closed by the Board of Health. If there is a toxic substance spill in a factory, the Health Department can close it down until the spill has been cleaned up and the public is no longer in danger. Recently, a public school in New Jersey was ordered closed until it could be determined whether asbestos present in insulation posed a threat to the health of the school children. For better or worse, current public health laws permit the quarantine an individual with tuberculosis who it is determined is acting in such a manner that he or she poses a risk to those around him.
State health authorities are charged with protecting the public’s health, and the public obviously includes gay men. If a business–particularly one which is already licensed by the State–poses a significant threat to the health of the public, the State may legitimately close it. It certainly is possible to argue that commercial sex establishments operating during the AIDS crisis pose a serious risk to the gay public’s health. One can therefore argue that the State has a legitimate and compelling public health interest in ordering the temporary closure of commercial sex establishments. Many believe that the risks to the health of gay men posed by these commercial sex establishments operating during this serious epidemic justify the drastic action of temporary closure.
Q: Will closing the bathhouses and other commercial sex establishments end the AIDS epidemic?
A: Absolutely not. No single action will end the AIDS epidemic. But of the many options available, many believe that temporary closure of commercial sex establishments has one of the best chance of producing a rapid reduction in the rate of increase of AIDS and other STDs.
Q: But haven’t some gay political organizations claimed that bathhouse closure would only be a “symbolic” gesture which might mislead gay men into believing that the epidemic was over?
A: In the first place, it would be a mistake to dismiss lightly the symbolic and educational effect that closure would have. Closure wouldn’t imply that the epidemic was over; on the contrary, it would send the message out to all gay men that the epidemic was so real and serious that drastic action was required.
In the second place, advocates of temporary closure sincerely believe that such drastic action would significantly reduce the incidence of AIDS (as well as other STDs). It is precisely because of the belief that the temporary closure of commercial sex establishments will have a significant, beneficial impact on the health of all sexually active gay men that support for closure is growing.
Others have argued that bathhouses are the “symbol” of gay (male) “liberation.” This view is not universally shared among gay men and lesbians.
Others have argued that the bathhouses once served an important role in the history of the gay movement by providing “safe” gathering places in which gay men could socialize. The advent of AIDS and the impending threat of an explosive epidemic of Hepatitis D certainly challenge the appropriateness of viewing such places as “safe” settings for gay men.
Others have argued that commercial sex establishments offer the only “safe” space in which closeted, often married gay men can meet other gay men. This is patently absurd. Although temporarily closing commercial sex establishments might make it more difficult for those who are closeted and/or married to engage in high risk sexual activities, it does not make it impossible. Gay men will still be able to meet each other in non-backroom bars, gay community centers, organizations, and through classified ads.
Closure would have to be accompanied by an exploration of alternative settings in which gay men might satisfy whatever social needs are presently being satisfied by commercial sex establishments.
Q: But if baths and backroom bars are closed, won’t all the people who now go to such places simply recreate such settings elsewhere?
A: Unfortunately for both those who favor and those who oppose temporary closure, there is no way to predict with certainty how the gay men currently patronizing such establishments would respond. The recent closure of such commercial establishments in San Francisco is too recent to permit anyone to produce evidence one way or another. Because AIDS epidemiology to date has been so poorly conceived and executed, it will be difficult to have confidence in any attributable risk analysis performed. As the San Francisco case demonstrates, data can be manipulated. One’s results depend on the reliability of the data, the data selected, and the applicability of the methodology of the analysis.
But common sense says that it would be virtually impossible for gay men to duplicate the opportunity for sheer volume of high risk contact in other settings. Weather is one obvious obstacle. On a cold and rainy Friday night in November, there is little chance that a gay man would have five sexual contacts in Central Park.
Although there will undoubtedly be those who will recreate such settings if commercial sex establishments are temporarily closed, those who favor closure predict that many gay men will use the opportunity provided by closure to change their pattern of sexual socialization. Gay men go to bathhouses and backrooms for different reasons. For some, habit and convenience are major determining factors. For these men, removing easy access to commercial sex establishments might provide sufficient motivation for them to seek other, safer means of sexual socialization. One hopes that temporarily closing commercial sex establishments will compel a majority of those who now frequent these establishments to radically alter their sex habits resulting in a significant savings of lives.
Lacking any way to predict with certainty the effect which temporary closure might have on those presently engaging in high risk behavior, the question becomes this: even if 3 out of 4 bathhouse patrons duplicate the settings if bathhouses are closed, is saving 1 life out of 4 worth the hypothetical risk to civil liberties posed by the temporary closure of businesses which encourage and permit gay men to engage in high risk sexual activity on their premises during a public health emergency?
Q: But what about those gay men who do recreate such settings?
A: No doubt there will be those who will attempt to reproduce these settings elsewhere. Orgies in private homes may increase. There may well be some increase in outdoor sex in parks and public restrooms. But even these responses seem preferable from the standpoint of disease transmission. An orgy which occurs in a private home is more likely to involve men who know each other–decreasingly the likelihood that someone who is sick could knowingly or half-knowingly spread his disease(s) and increasing the likelihood that that someone who laters develops symptoms or confirmed disease might know the identity of and might contact his partners. Again, the logic behind temporary closure of commercial sex establishments is not to make it impossible for gay men to engage in high risk behavior–but to make it much more difficult!
Q: If more gay men are having sex in public places, doesn’t the risk of anti-gay violence increase?
A: Unfortunately, it might. And such violence might spill over to affect lesbians. Hopefully the gay community could institute neighborhood patrols in such areas and work with the police to keep anti-gay violence to a minimum.
But it is also possible to argue that the gay community’s unwillingness to act responsibily on the issue of closure simply reinforces the view of homophobes that we are crazy and irresponsible and could lay the groundwork for a “justification” by such homophobes for increasing violence directed at “crazy” gay men and lesbians.
As loathsome as anti-gay violence is, the fact remains that in New York City in 1984, a gay man is more likely to die from AIDS than he is from anti-gay violence. As Dr. James Curran (Directors of CDC’s AIDS Task Force) recently predicted, AIDS is likely to be the major cause of death among gay men for the rest of the century. It’s also possible to view high risk behavior as an act of anti-gay violence–against oneself and one’s partners!
Q: What about civil rights? Isn’t it dangerous to allow the State to tell us when and where two consenting adults can and can’t have sex?
A: Yes, it is dangerous. The possibility of state imposed closure raises serious, legitimate civil liberties questions. Temporary closure would represent a clear case of paternalism; the State would in effect be saying “we know what’s best for you; this is for your own good.” That is why it would be preferable for the gay community itself to take responsiblity for closing bathhouses.
Unfortunately, the gay community has thus far refused to seriously explore the complex issues posed by the operation of commercial sex establishments during this health crisis. No clear message about the dangers of promiscuity in these settings has emanated from the leaders of the gay community. The fact that risk reduction information aimed specifically at bathhouse patrons has only been available since May of 1984 constitutes a scandalous abrogation of community responsible and demonstrates the general unwillingness of the current gay leadership to confront the obvious relationship between promiscuity and the development of AIDS in a subset of gay men.
There is also a distinction between liberty and license. The State licenses these businesses. If a majority of medical experts–and indeed many members of the gay community itself–honestly believe that the kinds of behavior which these establishments are in business to promote is actually killing gay men, then the state has an obligation to temporarily close them.
These places are businesses and for that reason alone are legitimately subject to state regulation. No suggestion is made or implied that the State ought to regulate consensual sexual activity which occurs in non-commercial settings such as private homes. What a gay man does in the privacy of his or his partners’ home is–and must remain–his right. If, however, someone is in the business of encouraging gay men to engage in behavior which is likely to result in their death, especially in the emergency currently posed by this critical health crisis, the state should legitimately intervene by ordering a temporary closure of such businesses.
Q: If we let the State close baths and backroom bars, what’s to stop them from closing gay restaurants and saying gay teachers can’t be around kids. Won’t there be a domino effect?
A: Restaurants are not in business to promote and permit high risk sexual activity to occur on their premises. Gay men who are teaching in classrooms are not engaging in high risk sexual activity. Gay men socializing in non-backroom bars and other settings such as the Community Center are not engaging in high risk multiple sexual activity. Recently, the Texas courts appropriately rejected the egregious contention of Dallas Doctors Against AIDS who claimed that Texas A & M University could legitimately refuse to recognize a gay students group because any congregation of gay men constitutes a public health threat.
Moreover, the fact that the State has showed amazing restraint by not closing commercial sex establishments in the early days of this health crisis arguably demonstrates that they are not interested in using this health crisis to pursue oppressive policies against all gay people. If this had been their goal, they would have tried to do so long ago–probably during the height of the casual contact media scare.
On the other hand, no one would deny that these are frightening political times for gay men. But now gays are fighting a two front war. On one front, those who are opposed to the right of gay men and lesbians to be free from discrimination in housing, employment and public accommodation are advancing. On the other front, disease is decimating our community and breeding distrust and dissention among our own ranks.
Some degree of paranoia is justified. But we must not let our paranoia paralyze us into not taking those actions which will save our lives both as individuals and as a community.
Q: But what about education? Isn’t it working? Haven’t the VD rates gone down significantly?
A: Yes, there have been encouraging signs that many gay men have modified their sexual habits. But many feel that it’s not enough and not fast enough. Although the rate of veneral disease has dropped significantly, there is still a lot of VD around.
In Boston and San Francisco, VD rates have begun to go up again. There is some indication that all this talk of a vaccine has removed the crisis mentality which motivated some gay men to make difficult lifestyle modification. In a recent interview in the Connection, the owner of the Mineshaft said that business was back up again after a two year period during the height of AIDS media attention. According to another recent Connection article, there is often a 2 hour wait for a room at the St. Marks baths on the weekend. A recent New York Native article indicated that high risk sexual activity still occurs at the Anvil and that many patrons are on drugs. There are many signs that that a large number of gay men are still engaging in high risk sexual activity.
The habitues of commercial sex establishments may constitute a “core population” for the spread of AIDS and other STDs. It is possible that the small subset of gay men who regularly frequent commercial sex establishments are disproportionately responsible for the incidence of AIDS and STDs among our community. These men probably maintain a critical mass of disease which then spreads out in a ripple effect to those less sexually active. Data from on site bathhouse screening, done by locally based community health projects, might shed some light on the question of whether the incides of STDs among patrons of commercial sex establishments is significantly higher than those who do not attend such establishments.
Also, one should be cautious in assuming that educational efforts to date have reached everyone they need to reach. Many men who frequent commercial sex establishments do not read the gay press and do not attend AIDS forums. Many are from other cities and other countries where the awareness of AIDS and safer sex is not high. Many who make it there business to be well-informed often arrogantly assume that everyone else does the same. The fact that AIDS education targeted specifically for bathhouse/backroom bar patrons has only recently become available–and sporadically at that–should make us cautious to assume that the gay community has succeeded in educating its members about the hazards of high risk sexual activity in commercial sex establishments.
Q: Aren’t there any alternatives to State closure?
A: Yes. There are essentially three alternatives.
The first alternative would require that owners themselves, either voluntarily or on order of the State, make certain specific modifications to their premises. The lights could be turned up; rooms and cubicles could be removed. A number of specific changes could be made to discourage patrons from engaging in high risk sexual activity on the premises. As has occurred in a small number of clubs in San Francisco–clubs which the S.F. Health Commissioner has permitted to stay open–owners could self-police. Owners could prominently post safer sex guidelines and eject any patron who was observed violating such rules. Aggressive safer sex education would occur regularly and on the premises to insure that those visiting from other cities will get the information that they need. VD testing could be done on premises free of charge and could include a very general physical. Commercial sex establishments which, on inspection, could demonstrate that high risk sexual activity was no longer occurring on the premises would be permitted to remain open.
The second alternative would be for owners of these commercial establishments to voluntarily close until the epidemic is under control. Judging from their track record of inaction and uncooperativeness, the first and second alternative seem highly unlikely.
The third option would involve a coordinated attempt by the community to encourage an economic boycott of bathhouses through unequivocal statements discouraging gay men from going to such places. One means of publicizing these concerns would be through such actions as picket lines and leafletting outside such establishments. But judging from the fact that no such action has occurred in the three year since this epidemic was first recognized, it seems unlikely that there will be any such coordinated political response on the part of the gay community. The only encouraging sign is the excellents of GMHC’s recent educational proposal. However, that proposal contains no indication that the owners or commercial sex establishments will cooperate by permitting GMHC to conduct its educational efforts on their premises.
Q: What would be the political ramifications of allowing closure?
A: First, let’s ask what the political ramifications of not closing are. Our refusal as a community to take responsible action demonstrates that we are weak and disorganized. It is becoming increasingly more difficult for our gay and non-gay supporters to defend our inaction on this issue.
Many gay leaders are extremely critical of the government’s inadequate response to the health crisis; they are appropriately demanding greatly increased governmental spending for research and support services. At the same time, these same leaders are forced to argue that businesses which encourage and permit gay men to engage in high risk sexual activity somehow have a civil right to stay in business during this public health emergency. The credibility of these leaders is being daily undermined by such an untenable position.
With estimates that it costs over $100,000 to take care of someone with AIDS and further estimates that 30-60% of this sum is paid for by tax dollars, it is possible to argue pursuasively that the state has a compelling financial interest in taking an action which it reasonably believes may result in a drastic reduction of the incidence of this insidious and expensive disease. Arguably, the political realities of our present situation compel support for temporary closure of commercial sex establishments during the AIDS crisis.
Some have argued that permitting the closure of commercial sex establishments in New York would lead to the closure of similar establishments in other cities where gays are less politically organized; these people argue that we have a responsibility to gays in other cities to “hold the line.” Those who favor closure counter-argue that our responsibility to gays in other cities compels closure. Many epidemiologists believe that gay men from other cities who have sex in commercial sex establishments in New York and California are importing AIDS and other STDs into their own communities. If this is so, temporarily closing commercial sex establishments in New York might have an important effect on diminishing the national incidence of AIDS.
NOTE: Although AIDS is understandably receiving the bulk of attention in discussions of public health issues among sexually active gay men, the possibility of another serious epidemic has recently presented itself: Hepatitis D. Hepatitis B is already endemic among sexually active gay and bisexual men. One to two percent of hepatitis B cases develop into life threatening hepatitis, whereas more than 30% of hepatitis D cases develop into fulminant disease. Also in hepatitis B, only 10-15% of the cases develop chronic states; in Hepatitis D, over 60% go on to the chronic state. In one study of Venezuelan Yuga Indians with high hep B carrier rates, fatal fulminant hepatitis D was 17%; death in 2 years was 23%; and chronic disease outcome was 68%.
Epidemics of Heptatitis B have already been reported in the United States, in California and Massachusetts. In the Massachusetts cases, 8 out of 75 have already died of Hepatitis D.
In short, drastic action taken to contain AIDS may also prevent a concurrent serious epidemic of Hepatitis D.