The Department of Justice announced last week that Tennessee’s aggravated prostitution law for people who know they are HIV-positive violates the federal Americans with Disabilities Act (ADA).
The DOJ said Friday, on World AIDS Day, that the State of Tennessee, its Bureau of Investigation, and the Shelby County District Attorney’s Office violated the Americans with Disabilities Act (ADA) by enforcing the state’s aggravated prostitution statute against people living with HIV.
Tennessee’s aggravated prostitution statute, passed in 1991, made it a Class C felony “when, knowing that such person is infected with HIV, the person engages in sexual activity as a business or is an inmate in a house of prostitution or loiters in a public place for the purpose of being hired to engage in sexual activity.” Aggravated prostitution is also categorized as a “violent sexual offense” that mandates registration on the Tennessee Sex Offender Registry if convicted.
In October, the ACLU and the Transgender Law Center filed a lawsuit in a Tennessee district court, arguing that the law violates equal protection, due process, and the prohibition against cruel and unusual punishment.
“Defendants 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,” reads the lawsuit. “This discrimination is imposed without any case-by-case, individualized assessment of any threat to public health.”
“That individuals living with HIV are treated so differently can only be understood as a remnant of the profoundly prejudiced early response to the AIDS epidemic, and the continuing marginalization of the Black cisgender and transgender women who have borne the brunt of the Aggravated Prostitution and related registry requirements,” continued the lawsuit.
The DOJ’s investigation concluded that people with HIV face harsher criminal penalties solely because of their HIV status, thereby violating Title II of the ADA.
“Tennessee’s aggravated prostitution law is outdated, has no basis in science, discourages testing and further marginalizes people living with HIV,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “People living with HIV should not be treated as violent sex offenders for the rest of their lives solely because of their HIV status. The Justice Department is committed to ensuring that people with disabilities are protected from discrimination.”
The DOJ sent written notice of its findings to Tennessee, its Bureau of Investigation, and the Shelby County District Attorney’s Office, and further details the minimum remedial measures necessary. The DOJ instructs Tennessee to “cease enforcement” of the aggravated prostitution statute and sex offender registration requirements.
“Since the passage of Tennessee’s aggravated prostitution statute in 1991, there has been significant progress in the understanding of and treatment of HIV,” reads a letter by Rebecca Bond, Chief of the DOJ Disability Rights Section. “Beliefs and assumptions that individuals with HIV will spread it, or that having HIV is a death sentence, are now outdated and unfounded.”