Tennessee’s penalties for HIV-positive people are discriminatory, Justice Department says

NASHVILLE, Tenn. (AP) — Tennessee’s decades-old aggravated prostitution statute violates the Americans with Disabilities Act, the U.S. Department of Justice announced Friday after an investigation, warning that the state could face a lawsuit if officials don’t immediately cease enforcement.

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.

LGBTQ+ and civil rights advocates have long criticized the measure as discriminatory, making it almost impossible to find housing and employment due to the restrictions for violent sex offenders. Earlier this year, the American Civil Liberties Union and the Transgender Law Center filed a lawsuit seeking to overturn the law in federal court.

The department’s findings on Friday are separate from the ongoing lawsuit.

The department is calling on the state to not only stop enforcing the law, but also remove those convicted under the statute from the sex offender registry and expunge their convictions. The agency also says Gov. Bill Lee should introduce legislation to repeal the law.

The ADA is the landmark 1990 federal law prevents discrimination against disabled people on everything from employment to parking to voting. HIV and AIDS are considered disabilities under the ADA because they substantially hinder life activities.

“Tennessee’s aggravated prostitution law is outdated, has no basis in science, discourages testing and further marginalizes people living with HIV,” said Assistant Attorney General Kristen Clarke, with the Justice Department’s Civil Rights Division, in a statement. “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 department’s letter was addressed specifically to Attorney General Jonathan Skrmetti, Tennessee Bureau of Investigation Director David Rausch and Shelby County District Attorney Steven Mulroy.

Shelby County, which encompasses Memphis, was named because DOJ said it’s where the law has been “enforced most frequently.”

Through a spokesperson, Mulroy noted that the allegations stem from cases handled before he took office in September 2022. Mulroy said he agrees with the Justice Department’s findings and his office is fully cooperating.

“We are aware of the DOJ’s findings, will give them appropriate consideration, and look forward to finding out more about DOJ’s apparent cooperation with local activist organizations and private litigants related to this matter,” Brandon James Smith, Skrmetti’s chief of staff, said in a statement.

A spokesperson for Skrmetti did not immediately respond to an email requesting comment.

Prostitution has long been criminalized as a misdemeanor in Tennessee. However, in 1991 — as the AIDS epidemic provoked panic and prevalent misinformation over prevention — Tennessee lawmakers enacted an aggravated prostitution statute, which was a felony and applied only to sex workers living with HIV. The law was later reclassified in 2010 as a “violent sexual offense,” requiring those convicted to face lifetime sex offender registration.

Court documents state that more than 80 people are registered for aggravated prostitution in Tennessee.

The DOJ letter details several of the struggles of those with aggravated prostitution convictions. A lifetime sex offender registration can stop people from visiting with their grandchildren, revoke job offers, and severely limit housing options. One person shared that they were barred from taking a course to get a general education diploma because children might be present in the building.

Plaintiffs who had filed a lawsuit seeking to block the aggravated prostitution law in October said the DOJ’s letter only further supports their efforts.

The lawsuit was brought by four unidentified people and OUTMemphis, a nonprofit that serves LGBTQ+ people.

“OUTMemphis welcomes the DOJ’s findings that, through its outdated and punitive aggravated prostitution law, Tennessee is discriminating against people living with HIV,” said Molly Quinn, executive director, OUTMemphis, in a statement. “We agree, and that’s why we are suing to get the law struck down. Whether this issue is resolved informally or in court, it is long past time to end HIV criminalization.”

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Associated Press writer Adrian Sainz contributed to this report from Memphis, Tennessee.