Tennessee Faces Federal Lawsuit over Decades-Old Penalties Targeting HIV-Positive People

LGBTQ+ and civil rights advocates on Tuesday filed a federal lawsuit challenging Tennessee's aggravated prostitution statute, arguing that the law stems from the decades-old AIDS scare and discriminates against HIV-positive people.

The sweeping complaint details how Tennessee is the only state in the United States that imposes a lifetime registration as a "violent sex offender" if convicted of engaging in sex work while living with HIV, regardless of whether or not the person knew they could transmit the disease.

The American Civil Liberties Union and the Transgender Law Center filed the challenge in the U.S. District Court in Memphis on behalf of four plaintiffs and OUTMemphis, a nonprofit that serves LGBTQ+ people. The groups contend that HIV is a protected disability and that singling out people with HIV with harsher penalties violates the Americans with Disabilities Act, as well as 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."

Gov. Bill Lee, Attorney General Jonathan Skrmetti, Tennessee Bureau of Investigation Director David Rausch and Department of Correction Commissioner Frank Strada are all named as defendants in the case. A spokesperson for the attorney general's office, who represents the state, did not immediately return an emailed request for comment on Tuesday.

Prostitution has long been criminalized as a misdemeanor in Tennessee. However, in 1991 – as the AIDS epidemic provoked panic and misinformation over prevention was prevalent – Tennessee lawmakers enacted an aggravated prostitution statute, which was a felony and applied only to sex workers living with HIV. The law was later reclassified in 2010 as a "violent sexual offense," requiring those convicted to face lifetime sex offender registration.

In 2022, the Centers for Disease Control and Prevention reported that 35 states have laws that criminalize HIV exposure initially designed to discourage HIV transmission but declared that many of these laws were "outdated and do not reflect our current understanding of HIV." The CDC also pointed out that Black and Latino communities – particularly gay and bisexual men within those groups – continue to be disproportionately affected. Meanwhile, the same standards do not apply to other infectious diseases.

Over the years, some states have taken steps to repeal their HIV criminal laws, such as Illinois, which repealed all of its HIV-specific criminal laws in 2021. That same year, New Jersey and Virginia repealed all their felony HIV-specific laws.

Yet, Tuesday's lawsuit alleges that the many remaining laws throughout the country have contributed to lingering HIV-related stigma that has 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 states.

The four plaintiffs in the complaint, all named Jane Doe, were all convicted of aggravated prostitution at least once and have since faced challenges from having to register as a violent sex offender. One plaintiff reported being harassed after her neighbor discovered her HIV status on the registry list. Another plaintiff has struggled for years to find housing that complies with Tennessee's sex offender registry requirements.

"The registration requirements and restrictions are so difficult to comply with that that at times Jane Doe 1 has felt she had no option but to continue to engage in sex work to survive, since it was too difficult to find stable employment, particularly as a transgender woman," the complaint states.

A separate plaintiff is currently incarcerated for violating a sex offender registry requirement and has chosen not to seek parole despite being eligible because complying with registry requirements has become so onerous.

According to the complaint, 83 people are currently registered for aggravated prostitution in Tennessee. The majority of those convictions took place in Shelby County, which encompasses Memphis. The complaint then alleges that the convictions were largely initiated by the Memphis Police Department's Organized Crime Unit in undercover sting operations on street-level sex workers.