The Justice Department sued the state of Tennessee on Thursday, alleging that the state imposes harsher criminal penalties on people who engage in sex work while living with HIV.
The state has violated the Americans With Disabilities Act by criminally prosecuting sex workers living with HIV, “regardless of any actual risk of harm,” the lawsuit says.
Prostitution is typically classified as a misdemeanor in Tennessee. But under the state’s “aggravated prostitution” law, a person living with HIV who is charged with prostitution must register as a “violent sex offender” for the rest of their life, regardless of whether the person knew they could transmit the disease or practiced mitigation measures, such as using condoms or taking antiviral medication.
Tennessee is the only state to impose a lifetime sex offender registration requirement on sex workers who are HIV-positive.
Tennessee first developed its law to criminalize sex workers living with HIV in 1991 amid widespread panic and misinformation over the AIDS epidemic. Tennessee lawmakers later reclassified aggravated prostitution as a “violent sexual offense” in 2010.
The Justice Department suit calls on the state to not only stop enforcing the law but also to remove those convicted under the law from sex offender registries and to expunge their convictions.
“People living with HIV should not be subjected to a different system of justice based on outdated science and misguided assumptions,” Assistant Attorney General Kristen Clarke said in a news release.
Separately, last fall, OUTMemphis, an LGBTQ+ health and advocacy organization, filed the first legal challenge to the HIV criminalization law, alongside the American Civil Liberties Union and the Transgender Law Center. The LGBTQ+ and civil rights organizations represented four cisgender and transgender women, three of whom are Black, who are living with HIV and have been arrested under the Tennessee statute.
The Justice Department and OUTMemphis lawsuits both detail the story of an unnamed Black transgender woman who was arrested by an undercover police officer who propositioned her and a friend in Memphis. She first learned she was HIV positive in 2008 and was convicted on the aggravated prostitution charge in 2012. Because of the state law, she was required to register as a sex offender, which caused her to lose several job offers. She experienced homelessness while having difficulty finding affordable housing that complied with the registry requirements.
“The statute explicitly singles out people with HIV for different treatment based on disability,” the lawsuit from OUTMemphis says.
Many state laws criminalizing sex and other acts ― some of which cannot even transmit HIV ― are “outdated and do not reflect our current understanding of HIV,” according to the Centers for Disease Control and Prevention.
Black and Latino communities, and particularly Black transgender and cisgender women, have been disproportionately affected by laws criminalizing HIV.
The Williams Institute found that Shelby County, home to Memphis, makes up the bulk of the state’s HIV convictions. Memphis has the nation’s third-highest HIV diagnosis rate, according to the CDC. Researchers at the Williams Institute found that 154 people were on Tennessee’s sex offender registry with an HIV-related conviction. Women made up 46% of the HIV registrants, while Black people accounted for 75%.
Last year, Tennessee rejected $8.8 million in federal grant money for HIV testing and prevention so it could refuse to fund Planned Parenthood and the Tennessee Transgender Task Force. The state later allocated a different $9 million budget to fight HIV and wound up with $4 million in state funding from the CDC, though organizations representing LGBTQ people and Black and Latinx communities are concerned the state funds may not go to these at-risk populations.