Tennessee Hit by Federal Lawsuit Over Discriminatory HIV Sex Worker Statutes

The state of Tennessee is being sued in the U.S. District Court in Memphis by a support group and four sex workers who say a set of 1990 laws unlawfully discriminate against people living with HIV.

Tennessee law currently criminalizes prostitution as a misdemeanor, usually punishable by a small fine. Sex workers living with HIV, however, are prosecuted as aggravated prostitution, a felony, and subjected to lifetime registration as a violent sexual offender under the Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 (TN-SORA).

The plaintiffs in the case are OUTMemphis, an LGBTQ+ advocacy and support group for people living with HIV, and four individuals living with HIV who say they suffered discriminatory hardship following their conviction for aggravated prostitution and the resulting lifetime registration as a violent sexual offender. They are represented by the American Civil Liberties Union and the Transgender Law Center.

“People convicted of Aggravated Prostitution must spend years in prison and then register as violent sex offenders for the rest of their lives – meaning they cannot access the housing, employment, healthcare and community life that they need to get back on their feet,” Molly Quinn, executive director of OUTMemphis, said in a statement. “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.”

Named in the suit are Governor Bill Lee, Attorney General Jonathan Skrmetti, Tennessee Bureau of Investigation Director David Rausch, and Department of Correction Commissioner Frank Strada.

The lawsuit claims living with HIV has “long been recognized as a disability under the Americans with Disabilities Act of 1990 (ADA).” The lawsuit concludes that since the “ADA prohibits discrimination by state government entities by reason of a person’s disability,” the aggravated prostitution prosecutions are “explicitly violating this guarantee by subjecting people living with HIV who are convicted of engaging in sex work to dramatically increased criminal liability and lifetime registration as ‘violent’ sex offenders – solely by virtue of their disability.” The lawsuit also claims the aggravated prostitution statutes violate the due process and equal protection clauses of the Fourteenth Amendment of the U.S. Constitution, as well as the Eighth Amendment’s ban on cruel and unusual punishment for SORA-TN’s lifetime sex registration requirement.

“The Aggravated Prostitution statute is a relic from when HIV first emerged in the 1980s and is motivated by fear, misinformation, and discrimination — not sound science or evidence,” Jeff Preptit, staff attorney for ACLU-TN, said in a statement. “Instead of criminalizing HIV, which disproportionately targets transgender and cisgender Black women who are already socially and financially marginalized, lawmakers should invest in evidence-based public health responses to support people living with HIV to end the epidemic.”

The lawsuit noted that Black cisgender and transgender women were disproportionately impacted by the law, and that “a Black woman in Tennessee was 290 times more likely to be on the sex offender registry for an HIV-related conviction than a white man.”