In a significant development, the Department of Justice (DOJ) has informed Tennessee that its HIV criminalization law violates the federal Americans with Disabilities Act (ADA), which aims to prevent discrimination against people with chronic illnesses and disabilities. The DOJ’s move comes as it outlined the minimum remedial measures necessary to address the law’s civil rights violations.
Outdated and Discriminatory Law
Tennessee’s law mandates that HIV-positive sex workers arrested for misdemeanor aggravated prostitution must face enhanced felony charges, irrespective of any actual risk of harm. Furthermore, those convicted are required to register for life as “violent sex offenders.” This has led to continued discrimination against convicts, impacting various aspects of their lives, including employment opportunities and restrictions on proximity to minors or certain facilities.
The DOJ conducted a thorough investigation, interviewing HIV-positive individuals arrested under the law and scrutinizing official documents. The conclusion was clear: most people convicted of aggravated prostitution wouldn’t be required to register for the violent sex offender registry for other offenses. The DOJ found that “the State’s enforcement of the SOR requirements is based on a conviction linked to individuals’ HIV status in most cases.”
Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division expressed, “People living with HIV should not be treated as violent sex offenders for the rest of their lives solely because of their HIV status. Tennessee’s aggravated prostitution law is outdated, has no basis in science, discourages testing, and further marginalizes people living with HIV.”
Scientific Progress Ignored
The DOJ’s investigation also highlighted that individuals on anti-retroviral (ART) medication are virtually incapable of transmitting HIV to others. The Centers for Disease Control and Prevention (CDC) has called for states to repeal or update outdated laws criminalizing behavior by people living with HIV, noting that these laws do not reflect current scientific and medical evidence and advances, including the availability of ART and PrEP (pre-exposure prophylactics).
The DOJ’s directive to the state and the Shelby County Attorney General’s Office is clear: cease enforcement of the law, end all consequences for those convicted under it, and provide monetary compensation for having their civil rights violated. Additionally, the DOJ has called on 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. Currently, an estimated 83 Tennesseeans are on the registry due to this law, which was passed in 1991 during the AIDS epidemic’s height when effective medical treatments were still being sought.
As of 2022, 35 states in the United States still have laws that criminalize HIV exposure, despite advances in our understanding of the virus and its transmission.
