Memphis, Tennessee – A federal lawsuit filed by LGBTQ and civil rights advocates is challenging Tennessee’s aggravated prostitution statute, which has deep-rooted ties to the AIDS scare of decades past and discriminates against HIV-positive individuals. The complaint highlights how Tennessee is the only state in the United States that enforces lifetime registration as a “violent sex offender” for those convicted of engaging in sex work while living with HIV, irrespective of their knowledge of transmitting the disease.
The American Civil Liberties Union (ACLU) and the Transgender Law Center have jointly initiated the legal challenge, filing it in the U.S. District Court in Memphis on behalf of four plaintiffs and OUTMemphis, a nonprofit organization that serves the LGBTQ community. The central argument of the lawsuit hinges on the assertion that HIV qualifies as a protected disability. The groups contend that singling out people with HIV for harsher penalties not only contravenes the Americans with Disabilities Act but also infringes upon other constitutional protections.
“This statute solely targets people because of their HIV status and keeps them in cycles of poverty while posing absolutely zero benefit to public health and safety,” said Molly Quinn, Executive Director of OUTMemphis, in a statement. “HIV stigma is becoming a thing of the past, and it’s time for state law to catch up.”
The defendants named in the case include Governor Bill Lee, Attorney General Jonathan Skrmetti, Tennessee Bureau of Investigation Director David Rausch, and Department of Correction Commissioner Frank Strada. As of now, the attorney general’s office, representing the state, has not provided any immediate comments in response to the lawsuit.
In Tennessee, prostitution has long been criminalized as a misdemeanor. However, in 1991, during the height of the AIDS epidemic when panic and misinformation regarding prevention were widespread, state lawmakers enacted an aggravated prostitution statute. This statute, classified as a felony, exclusively applied to sex workers living with HIV. In 2010, it was reclassified as a “violent sexual offense,” thereby mandating lifetime sex offender registration for those convicted under this law.
The lawsuit, filed in 2023, exposes the outdated nature of many HIV-related criminal laws in the United States. The Centers for Disease Control and Prevention reported in 2022 that 35 states still have laws criminalizing HIV exposure, designed initially to discourage HIV transmission. The CDC underlined that these laws do not reflect current understanding of HIV and disproportionately affect Black and Latino communities, particularly gay and bisexual men within those groups. Curiously, similar standards do not apply to other infectious diseases.
While some states have taken steps to repeal their HIV criminal laws, such as Illinois in 2021, and New Jersey and Virginia in the same year, this lawsuit highlights the persisting stigma associated with HIV due to the existence of such laws. It claims that these laws have discouraged testing and voluntary disclosure.
“In states with HIV-specific criminal laws, the number of at-risk individuals who report they have been tested for HIV in the past 12 months negatively correlates with the number of media reports on the criminalization of HIV-exposing behavior,” the complaint emphasizes.
The lawsuit includes four plaintiffs, all identified as Jane Doe, who have each faced convictions of aggravated prostitution, leading to the burdensome requirement of registering as violent sex offenders. The consequences have ranged from harassment due to public disclosure of their HIV status to difficulty in finding housing compliant with Tennessee’s sex offender registry requirements.
One plaintiff, a transgender woman, reported that compliance with these registration requirements was so arduous that she felt compelled to continue engaging in sex work to survive. The lawsuit also mentions a separate plaintiff who is currently incarcerated for failing to comply with a sex offender registry requirement and choosing not to seek parole, despite eligibility, due to the onerous nature of compliance.
The complaint indicates that 83 individuals are currently registered for aggravated prostitution in Tennessee, with the majority of these convictions taking place in Shelby County, encompassing Memphis. Notably, these convictions often stemmed from undercover sting operations conducted by the Memphis Police Department’s Organized Crime Unit targeting street-level sex workers.