DOJ sues Tennessee over HIV-related discrimination in anti-sex work law

The U.S. Department of Justice has launched a lawsuit against the state of Tennessee and the Tennessee Bureau of Investigation for what it deems discriminatory enforcement of the state’s aggravated prostitution law against people living with HIV.

Announced in a press release by Assistant Attorney General Kristen Clarke of the DOJ’s Civil Rights Division on Thursday, the lawsuit was filed in the U.S. District Court for the Western District of Tennessee, marking a significant challenge to state practices under the Americans with Disabilities Act (ADA).

Clarke emphasized the unjust treatment of individuals based on HIV status.

“The enforcement of state criminal laws that treat people differently based on HIV status alone and that are not based on actual risks of harm discriminate against people living with HIV, “she said in the statement.

She further articulated the lawsuit’s objective to ensure individuals living with HIV are not unjustly targeted due to their medical condition.

The lawsuit asserts that Tennessee’s aggravated prostitution law subjects individuals with HIV to unduly harsh criminal penalties based solely on their HIV status, irrespective of any actual risk of harm. This approach, according to the DOJ, contrasts starkly with the penalties for individuals without HIV engaged in similar conduct, revealing a discriminatory practice rooted in outdated perceptions of HIV.

At the heart of the DOJ’s complaint is the aggravated prostitution statute, Tenn. Code Ann. § 39-13-516, which elevates prostitution— a misdemeanor offense — to a Class C felony for individuals known to be infected with HIV. The law mandates that individuals convicted under this statute face severe penalties, including imprisonment of three to 15 years and fines up to $10,000, and categorizes them as “violent sexual offenders,” requiring lifetime registration on the Tennessee Sex Offender Registry in most cases.

The lawsuit further details the enforcement practices in Shelby County, where the majority of aggravated prostitution prosecutions occur, often as a result of decoy operations by the Memphis Police Department’s Organized Crime Unit. The DOJ argues that these practices not only discriminate against individuals with HIV but also fail to consider advancements in HIV treatment and the significantly reduced risk of transmission for those with undetectable viral loads. Those with undetectable viral loads are unable to transmit HIV.

In seeking relief, the DOJ requests that the court declare the enforcement of Tennessee’s aggravated prostitution law in violation of the ADA, order the cessation of its enforcement, and mandate the removal of individuals convicted under this statute from the sex offender registry. Additionally, the DOJ seeks compensatory damages for aggrieved individuals, including Complainant A, a Black transgender woman whose experience exemplifies the law’s detrimental impact on the lives of those it targets.

Amidst these legal battles, legislative efforts are underway in Tennessee to amend the law. A bill passed by the Tennessee Senate aims to remove the sex offender registration requirement for those convicted of aggravated prostitution and offer a path to expungement. While the bill maintains the aggravated prostitution law within Tennessee’s criminal code, it reflects a step toward addressing the criticisms levied by the DOJ and advocacy groups, the Commercial Appeal reports. Additionally, separate legislation seeks the complete removal of the law.

The DOJ’s lawsuit not only seeks to halt the enforcement of the aggravated prostitution statute against individuals with HIV but also to secure compensatory damages for those adversely affected, including reimbursement for registry fees, court costs, and other related expenses.