NASHVILLE, Tenn. — The U.S. Justice Department on Thursday sued the state of Tennessee over its decades-old felony aggravated prostitution law, arguing that it illegally imposes tougher criminal penalties on people who are HIV positive.
The lawsuit, filed in western Tennessee, follows an investigation completed in December by the Justice Department that warned that the statute violates the Americans with Disabilities Act. The case heads to court separately from another federal lawsuit filed in October by LGBTQ and civil rights advocates over the aggravated prostitution law.
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 the person knew they could transmit the disease.
Meanwhile, state lawmakers are close to approving a change to the law that would not fully strike it. The Republican-carried legislation would only remove the requirement that those convicted of aggravated prostitution must register as a violent sex offender.
“People living with HIV should not be subjected to a different system of justice based on outdated science and misguided assumptions,” Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division said in a news release announcing the lawsuit Thursday. “This lawsuit reflects the Justice Department’s commitment to ensuring that people living with HIV are not targeted because of their disability.”
Prostitution has long been criminalized as a misdemeanor in Tennessee. But in 1991, Tennessee lawmakers enacted an even harsher statute that applied only to sex workers living with HIV. Nearly 20 years later, the state legislature revised the law once more by requiring lifetime sex offender registration for those convicted under the controversial statute.
In the years since, the federal Centers for Disease Control and Prevention has warned that laws criminalizing HIV exposure — many of which were enacted amid the height of the AIDS epidemic — are outdated and ineffective. Black and Latino communities have been particularly affected by these laws even as 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Over the years, some states have taken steps to repeal their HIV criminal laws, such as Illinois, which repealed all of its HIV-specific criminal laws in 2021. That same year, New Jersey and Virginia repealed all their felony HIV-specific laws.
The lawsuit seeks to require the state not only to stop enforcing the law, but also to remove those convicted under the statute from the sex offender registry and expunge their convictions.
The state attorney general’s office said it is aware of the complaint and will review it.
HIV and AIDS are considered disabilities under the Americans for Disabilities Act because they substantially hinder life activities. The landmark 1990 federal law prevents discrimination against disabled people on everything from employment to parking to voting.
Court documents in the other federal lawsuit say that more than 80 people are registered for aggravated prostitution in Tennessee. The majority of those convictions occurred in Shelby County, which encompasses Memphis.
The Justice Department lawsuit details the experience of an unnamed Black transgender woman from Memphis who learned she had HIV in 2008, was arrested in 2010 for prostitution near a church or school, and pleaded guilty in 2012 to one count of criminal attempt at aggravated prostitution. Because she had to register as a sex offender, the woman has experienced periods of homelessness while struggling to find safe housing compliant with sex-registry requirements.
She has also had difficulty finding a job after employers run her background check, and she can’t spend time alone with her nephew because of her conviction, the lawsuit states.
Additionally, she was arrested and pled guilty to violating a requirement to update her address change within 48 hours after she was displaced by a fire over a weekend. Tennessee law also bars her from changing her legal name to match her gender identity, the lawsuit states.
