LEAKED: NYC Dept of Health Memo Explores Changes to Bathhouse Code

Gay City News is reporting today that they were leaked a memo from inside the NYC Department of Health and Mental Hygiene (DOHMH) that recommended some changes to the NYC Code regulating sex venues. Whether you're in NYC or not, the document is a fascinating read of public sex policy, and may impact you if you live in another city (they talk at length about what Los Angeles and San Francisco have done).

Sara Markt, spokesperson for DOHMH said to Gay City News that "[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."

But FYI, here are the options they are considering in the full memo, also published by Gay City News:

1. Continue current policy. Allow bathhouses to operate without inspection in private areas; close (or threaten to close) gay bars and other venues in which sex takes place in public.

Comment:This requires the least effort and is unlikely to cause a public outcry. It has resulted in changes in some institutions where warning letters have been sent, and may have a "chilling" effect in keeping other venues from allowing sex on the premises. However, it is likely that HIV transmission will continue to occur from unsafe sex in private areas of bathhouses and at the other venues, including "private sex parties."

2. Continue current policy for bathhouses, but attempt to enforce this policy with sex clubs and "private sex parties." Make greater efforts to close sex clubs and "private se[x] parties" that have fixed locations, regular hours of operation, and charge a fee.

Comment: This does not require a change in the Sanitary Code. Judging from the information in the ads, many "private" sex parties operate as businesses, with entry fees, fixed locations, and regular hours and thus may be subject to enforcement of the existing regulation. 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). Alternatively, we could ask inspectors to try to visit these sex parties to obtain direct observation evidence. However, this enforcement action may be challenged in court. It is unlikely that it will close all of the "private sex parties" because many may be very irregular in hours and locations. It may cause anger among gay activists and AIDS service organizations, although it is possible that some organizations funded to provide prevention services could be persuaded to support it. It also may require revision of guidelines for actions for inspectors. One option to consider is enforcement actions directed not just at venue owners but at party promoters, who may be different from venue owners.

3. Attempt to close all commercial sex venues. Use the Sanitary Code to close all commercial sex venues, including bathhouses currently in operation.

Comment: The current wording of the Sanitary Code does not make exceptions for private areas within establishments. 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. However, as in option 2 above, this is likely to 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. Even if sexual activity does take place in other locations, though, it probably would not result in the densely-connected sexual networks that are facilitated by bathhouses.

4. Modify Sanitary Code to permit bathhouses and sex clubs to operate under City regulations designed to promote safe sex. 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.

Comment: It is possible (but by no means guaranteed) that the Public Health Council may be persuaded to modify the Sanitary Code to allow local health departments to permit sex establishments to operate under local code rules. If this were possible, DOHMH could establish rules that draw the best features of rules from other cities. Included in those rules should be the following:

Safe sex required

Mandatory safe sex rules posted

Patrons required to sign safe sex rules as condition of entry

No private areas allowed; adequate lighting required

Bathhouse staff must monitor and maintain log of observations

Patrons ejected from bathhouse for breaking rules

Mandatory offering of rapid HIV testing

Monthly unannounced inspections by health department staff

Bathhouse must allow health department to survey patrons periodically to evaluate sexual practices.

These rules would not guarantee that condoms are used every time, but if enforced consistently should increase condom use to high levels. These rules would likely be accepted by gay activists and AIDS service organizations, but could be viewed as inappropriate by the general public in the city. Bathhouse owners would resist changes because the loss of private areas will likely lead to a loss in business. The policy change must be accompanied by a commitment to a permanent enforcement mechanism, because if enforcement becomes lax over time it could result in an increased risk of HIV transmission.