On Wednesday June 25, the State Senate in California will vote on the contentious “condoms and testing in porn bill,” officially known as AB1576. The bill has been touted as a method to protect porn performers from HIV infection, and would require mandatory HIV testing for all porn performers every 14 days, as well as the use of condoms in all pornography produced in California.
I’ve appeared in nearly 200 gay porn scenes in the last seven years. In every sex scene I’ve ever done, I’ve used condoms. Yet I, along with a vast majority, if not all, working porn performers, whether in the queer or straight side of the industry, oppose this bill: It’s a cultural, human rights, ethical, and public health disaster. For members of the LGBTQ community—whether you’re involved with the porn industry as a performer like me or as one of millions of porn viewers—the bill and its potential effects are not to be taken lightly.
Before going into the problems with the bill, here’s a quick rundown of what studios in California already do to address HIV in porn. In the straight side of the industry, the standard is regularly scheduled, studio-mandated HIV testing; condoms are sometimes, but rarely, used in conjunction.
In the gay/queer industry, the operating procedure is a bit more varied. Up until a few years ago, the general standard was condoms, but no testing. The main reason for the difference from straight porn is gay men’s unique history with HIV. Gay porn producers, being equipped with a more experiential and deeper education surrounding HIV infection and its accompanying cultural stigma, decided to treat everyone on set as if they were positive. To avoid the invasions of medical privacy testing would bring, especially in the quarantine-minded political climate all gay men—especially HIV-positive ones—were facing, condoms were the clear choice to protect performers. They were also a way to show that sex could be safe, fun, and that it didn’t have to be terrifying. This approach was spearheaded by drag queen porn director, Chi Chi Larue, who in 1987—without government mandate, of course—filmed Flexxx, the first porn movie (gay or straight) that featured condoms in every scene. The introduction of this approach was a crucial moment in LGBTQ history, and it remains in place for a number of the major studios.
More recently, some gay studios have decided to also offer condomless scenes and to require testing per the straight industry standard. There are also other variations: Studios like Men.com that require testing and condoms, in part because they are owned by straight parent companies, likely out of touch with the traditional LGBTQ approach. Finally, there are studios like Treasure Island Media that do not require testing or condoms, but that rely on sero-status sorting: Positive performers only work with each other, likewise for negative actors. These studios are often sought out by HIV-positive men, men on PrEP, or men who want to make porn with their partners.
In any case, I’ve long been an advocate for performer, rather than studio, choice when it comes to any and all forms of protection. Performers should have access to a wide array of health and protection options from all studios and should be paired with scene partners that require the same health protocols. Most studios don’t offer that freedom to performers. But while I can’t defend every studio’s specific practices, none of them compare to the overreach of the government-enforced proposals in AB1576.
Because of the pre-existing industry protection protocols and industry-related education, AB1576 addresses a nonexistent problem. Despite hundreds of thousands of HIV diagnoses between 2005 and 2014 in the general population, there have been zero demonstrable on-set HIV transmissions in that period. That means the tremendous amount of money and time spent promoting this bill (especially via a big media campaign led by California State Assemblymember Isadore Hall and AIDS Healthcare Foundation president Michael Weinstein) is wildly out of proportion to the non-issue it proposes to address. AB1576 is a bill in search of a problem.
So if it’s not really about protecting porn performers, what is it for? Since AHF’s and Hall’s motivations aren’t easy to discern without speculation, let’s ask a different question, which has a clear answer: If AB1576 won’t affect HIV transmissions on set (since there are none), what will AB1576 actually accomplish?
It’s not much of a stretch to read the bill this way: AB1576 will find HIV-positive people, expose their status to others, and ban them completely from any sexual representation or sex work. The bill’s current language utterly ignores people already living with HIV. That means AB1576’s architects assume all performers will and should be HIV negative, essentially discriminating against any HIV+ person being in porn, even when barriers are used.
In gay porn, negative and positive performers routinely work together on set, using barriers to prevent transmission. Let me pre-empt fears about sex with HIV-positive men: Unless you’re anti-science, you cannot stigmatize protected sex between an HIV-positive and HIV-negative person on a porn set. I write “on a porn set” to distinguish between on-set and off-set sex. And I write “anti-science” to express the fact that when we approach this issue rationally rather than with panic, we recognize that conditions are generally safer than off-set sex. Sex on porn sets is literally monitored. The penetration is documented. Someone is watching. Condom malfunctions, if they happen (never once in my experience, by the way), are spotted and remedied. And again, no on-set transmissions have been shown in nearly a decade. The system of studio-mandated condoms without testing is currently the best way to support an anti-stigma culture that recognizes we should approach sex, and people living with HIV, with reason rather than fear.
The effect of AB1576’s mandated testing will be to separate positive and negative performers, even when their on-set sex acts are completely safe. Considering that supporters of the bill claim to believe condoms are effective, this creates a strange hypocrisy in their argument. Michael Weinstein claims to believe condoms are so effective, in fact, that he opposes other methods of protection against HIV. But if condoms are as effective as Weinstein says they are (and they are), then his calls for state-mandated testing make little sense.
Because I’ve seen HIV-positive friends and coworkers discriminated against for their status, as well as for the reasons stated above, I’ve long been an advocate against studio-mandated testing when barriers are already in use. Supporters of AB1576 are, for the most part, simply ignoring the context into which the bill would be introduced. But if they do address the potential for discrimination against HIV-positive performers, they lay the blame with studios and performers who might discriminate if statuses are forcibly or accidentally exposed, rather than with a bill that will instigate that very situation. Any anyway, studios, whatever problems they might have, don’t possess the power to criminalize a person for deciding he or she doesn’t want an HIV test.
To fight AB1576 isn’t to argue against HIV testing for individuals, but against state-mandated testing. State-mandated testing is an HIV test without consent, in the sense that a performer would be forced to have one to work. AB1576 states that not getting an HIV test coincident with a porn production, even a small-scale one featuring you and your partner, would be a crime. This would be true even if two men who had already tested positive HIV wanted to make porn together. They would have to get tested every 14 days. Furthermore, two HIV+ men would have to wear condoms in all productions, since the bill does not distinguish who should wear condoms based on status. Whatever your feelings about two men with HIV having unprotected sex, they certainly don’t need testing every 14 days, and we now know that men with undetectable viral loads do not transmit HIV. If that’s not enough to disturb you, the bill would also criminalize two long-term monogamous partners making their own porn. They’d have to test for the production and wear condoms as well.
And of course, the bill does not address the variations in genitals of cisgender and trans men and women—how would condoms apply in these cases? Who will be fined and criminalized? Nor does it address girl-girl or lesbian sex in porn, which have a much lower chance of transmitting HIV. Different performers with different genders, bodies, HIV statuses, and enacting different behaviors, deserve access to different health considerations. But AB1576 casts the same net over all of them.
Quarantine attitudes like the one proposed in AB1576 have been widely condemned for decades. It’s no surprise, then, that The Global Commission on HIV and the Law, a body of experts and statespersons established by the United Nations and the International Labor Organization both oppose state-mandated testing.
I’m only outlining here some of the concerns that have a pronounced intersection with the history and culture of the LGBTQ community. Other problems with AB1576 represent a wide range of violations against human freedom: There’s the fact that to make certain kinds of art (whether you agree that porn is art or not, it is protected as such), you’d have to undergo a medical procedure. There’s also the worrisome aspect of AB1576 that would result in the state regulating aesthetics by demanding certain types of sex (only ones that show condoms) be legal.
At the root of AB1576 is a troublesome gesture that LGBTQ people know all too well: The bill proposes to legislate on behalf of (I would say “against”) a community that it ignores. The Freedom of Speech Coalition has collected over 600 performer signatures in a petition against the bill. The text of the petition is a simple plea reflecting the reality of porn, rather than fear about it: “I am an adult performer. I support the current protocols that the adult production community has in place to protect my health and well-being as a performer. Our system has a proven track record of success as demonstrated by the fact that there hasn’t been an on-set transmission of HIV in the adult production community in 10 years—nationwide.” It’s not difficult to understand why performer approval of the bill is nearly nonexistent.
Historically LGBTQ people have found ourselves battling outsiders to our community, people and institutions in power, who say they know what’s best for us without ever asking if we agree. When legislators claim a policy is in the direct best interest of a community that’s shouting as loudly as it can against that policy, LGBTQ people should take note—particularly when it intersects with our lives and history. People in the porn industry are engaged in struggle against state control over bodily autonomy. This is a human rights issue that as a porn performer I can’t ignore. But it’s also a battle that, as a gay man, feels familiar. When we look to our history and our community, as LGBTQ people, we should recognize that the fight against AB1576 is ours, as well.
