Sex Workers in Tennessee May No Longer Be Penalized for Having HIV

Tennessee is being sued to overturn a law that punishes sex workers with HIV and forces them to register as "violent sex offenders."

The so-called "aggravated prostitution" statute, which was instituted at the height of the AIDS crisis in 1991, makes sex work a felony for those living with HIV. Convictions under the law typically result in prison time and require offenders to disclose their HIV status on the sex offender registry list for life.

A lawsuit seeking to overturn the statute, filed Tuesday by the American Civil Liberties Union (ACLU) and the Transgender Law Center on behalf of local group OUTMemphis and four people convicted under the law, accuses Tennessee of singling out people with HIV for illegal discrimination.

The lawsuit notes that Tennessee's statute is the only one of its kind in the nation and that being HIV positive is a protected disability under the Americans with Disabilities Act (ADA). The plaintiffs allege that the law disproportionately affects marginalized groups, including Black women and LGBTQ+ people.

"Disability discrimination is illegal," Alexis Agathocleous, deputy director of the ACLU's racial justice program, said in a statement. "The Aggravated Prostitution singles out economically-marginalized people living with HIV for excessively harsh punishment."

"The results are predictable: Black women are the targets of this archaic, unscientific law – many of whom are simply trying to secure food, a place to sleep, or a way to meet their basic needs," added Agathocleous.

Tennessee Governor Bill Lee, Attorney General Jonathan Skrmetti, Department of Correction Commissioner Frank Strada and Bureau of Investigation Director David Rausch are all named as defendants in the lawsuit.

Newsweek reached out for comment to Lee's office via email on Wednesday.

While most prostitution in Tennessee is treated as a misdemeanor, the suit argues that making it a felony based on HIV status alone is a "drastic difference in treatment" that "is so unmoored from medical facts as to punish sexual encounters that pose no risk of HIV transmission."

HIV treatments have advanced significantly in the decades since the law was passed, when the virus would inevitably lead to AIDS, a disease that is nearly always fatal without treatment.

Modern anti-retroviral therapy, which can drop viral loads to undetectable levels, and pre-exposure prophylaxis, can entirely block transmission of the virus. However, the Tennessee law does not account for whether a sex worker was actually capable of transmitting the virus.

The law instead makes each offender who has tested positive for the virus liable for a felony and obligated to register as a sex offender, both of which can have devastating and long-lasting consequences.

"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," OUTMemphis Executive Director Molly Quinn said.

"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," added Quinn.

According to the ACLU, while the Tennessee law is the only one targeting sex work in the same way, about half of all states still have laws on the books that criminalize HIV-positive status, which the organization called "relics from when HIV first emerged in the 1980s" that "are motivated by fear, misinformation and discrimination."

Correction 10/26/2023 at 11:40 a.m. ET: Corrects headline to make clear the article relates to those who have HIV rather than those who transmit it.