DOJ demands Tennessee repeal its discriminatory HIV criminalization law

The Department of Justice (DOJ) has informed Tennessee that its HIV criminalization law violates the federal Americans with Disabilities Act (ADA), a law prohibiting discrimination against people with chronic illnesses and other disabilities. The DOJ outlined minimum remedial measures necessary to address the law’s civil rights violations.

Tennessee’s law requires HIV-positive sex workers arrested for misdemeanor aggravated prostitution to face enhanced felony charges, regardless of any actual risk of harm. A convict must register for life as a “violent sex offender.”

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Convicts have said that they face continued discrimination and other life struggles — like employment discrimination, not being allowed to spend time with minors and not being allowed live within 1,000 feet of any school, childcare facility, or public park — because their name, address, and personally identifying details appear on the state’s publicly accessible violent sex offender registry (SOR).

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The DOJ investigated by interviewing HIV-positive people arrested under the law and looking over official documents from the state, the Memphis Police Department, and the attorney general’s office of Shelby County, where the law is most frequently enforced. The DOJ concluded that most people convicted of aggravated prostitution wouldn’t otherwise be required to register for the SOR for other offenses. As such, “the State’s enforcement of the SOR requirements is based on a conviction linked to individuals’ HIV status in most cases,” the DOJ concluded.

“People living with HIV should not be treated as violent sex offenders for the rest of their lives solely because of their HIV status,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “Tennessee’s aggravated prostitution law is outdated, has no basis in science, discourages testing and further marginalizes people living with HIV.”

In its investigation, the DOJ noted that HIV-positive people on anti-retroviral (ART) medication are virtually incapable of transmitting HIV to others.

“The CDC [Centers for Disease Control and Prevention] has called for states to repeal or update outdated laws and practices that criminalize behavior by people living with HIV, noting that most HIV criminalization laws were passed when ‘very little’ was known about HIV transmission and treatment and do not reflect current scientific and medical evidence and advances, including the availability of ART and PrEP [pre-exposure prophylactics].”

The DOJ told the state and the Shelby County Attorney General’s Office to stop enforcing the law, to end all consequences for people convicted under it, and to offer them monetary compensation for having their civil rights violated. The DOJ also told the state to repeal the law through its legislature.

In late October, the American Civil Liberties Union (ACLU) and the Transgender Law Center filed a federal lawsuit against Tennessee’s law. An estimated 83 Tennesseeans are currently in the registry because of it. Tennessee legislators passed the law in 1991 near the height of the AIDS epidemic, when over 100,000 Americans had died from the illness, and scientists were still trying to find effective medical treatments against it.

As of 2022, 35 states have laws that criminalize HIV exposure, according to the CDC.