In these days of growing support for gay equality, a very messy and divisive matter within the GLBT community is emerging – and it’s not coming from the right wing.

A federal study showed 11 percent of men tested in gay bathhouses in Los Angeles tested HIV positive. And one-third indicated that while in the club they used the type of drugs, such as methamphetamines, that foster unsafe behavior. In an editorial in the usually pro-gay Los Angles Times, the paper proclaimed: “Close the bathhouses.”

The editorial pointed out that San Francisco, finding that the city’s sex clubs were a major route for HIV infection, shuttered its bathhouses in 1984.

Of course, the editorial in the Times failed to point out that San Francisco is also experiencing an HIV conversion rate that is tops in the nation. So with the bathhouses closed, what is the major route for HIV infection in San Francisco today? The Internet. The Internet has made it possible for men, who would otherwise never set foot into a sex club or admit to being gay, to meet in private places, use drugs and engage in unsafe sex.

In the 1980s, Los Angeles, like San Diego, did not close its bathhouses. Los Angeles required sex clubs to provide condoms. San Diego’s County Board of Supervisors required clubs to foster safer sex practices.

To be clear, Los Angeles health officials are not necessarily calling for the closure of baths. Rather, they are calling for patrons in baths to wear condoms, and for health officials to more regularly patrol the baths to see that patrons are exercising safer sex practices. But others are calling for closing the baths.

I reported earlier that increasing HIV conversions, especially among younger gay men, would lead to renewed efforts to close bathhouses, require mandatory HIV testing, and impose criminal sanctions for knowingly spreading HIV.

Legally, fighting the closure of sex clubs today is a difficult challenge. Cities have “police power” to abate a “health” nuisance. County officials need to show that someone is using property in a way that is dangerous to human life or detrimental to health.

In the 1980s, when New York moved to close its sex clubs, in one famous case, city inspectors made visits to one sex club over 14 days. During that time they reported they witnessed 49 acts of high risk sexual activity (consisting of 41 acts of fellatio involving 70 persons and 8 acts of anal intercourse involving 16 persons). The court, in City of New York v. New Saint Mark’s Baths, found that the club staff was ineffective in policing sex activities and ordered the business closed.

Gay leaders argued that the move was simply a pretext for bias against gay men and gay sex. In short, they argued that they had a right to association and a right to engage in sex.

The court noted that the Constitution guards against tampering with freedom of association when the group is meeting to advance beliefs and ideas, not entertainment or gratification. Even if there was freedom of association to engage in sex, the government can infringe upon that right when it has a compelling interest. Here, the court assumed that there was proof that disease (HIV) was spreading through unsafe sex. The court, however, did not know whether the men at the club engaging in sex were HIV positive.

Secondly, the court found that there is a right to engage in sex within the privacy of one’s home. It noted that such a right does not extend to commercial venues even if they provide an opportunity for sexual release.

Since the 1980s, of course, HIV has become a “manageable” disease, with new treatment options coming out all the time. And one of the best options may be the “pill”, a drug that HIV-negative men can take prior to having sex with someone they know is or could be HIV positive. This is where our focus needs to be in combating the disease.

It doesn’t make sense to make bathhouses the only scapegoat for increasing HIV infection rates. In fact, closing bathhouses will not produce any gains in the war against HIV. As San Francisco has learned with its rising syphilis rates, people who engage in unsafe sex usually do so with partners they’ve met via the Internet. They are often under the influence of illegal drugs (meth or X), and they have sex within a private home.

Bathhouse owners cannot allow drugs to be used on their premises. If they do, it won’t be long before federal officials close them down, jail them and take all their property. I reported that a new federal law allows such.

That’s the reality today. But reality doesn’t dictate public policy when sex is involved. Look for this issue to become very hot in San Diego.