DOJ Backs ACLU’s Defense of Prostitutes Who Spread HIV

The Department of Justice on Friday accused the State of Tennessee of violating the Americans with Disabilities Act by seeking to punish prostitutes who knowingly spread HIV/AIDS. “The department’s comprehensive investigation found that the state and the [Shelby County District Attorney’s Office] subject people living with HIV to harsher criminal penalties solely because of their HIV status, violating Title II of the ADA,” a statement by the DOJ read

 “Tennessee’s aggravated prostitution law is outdated, has no basis in science, discourages testing and further marginalizes people living with HIV,” said Assistant Attorney General Kristen Clarke of the DOJ’s Civil Rights Division.”

The law, which has been on the books in the Volunteer State since 1991, upgrades the crime of prostitution to a “violent sexual offense” from a misdemeanor and requires lifetime sex offender registration should a prostitute ply their trade while knowing they are HIV-positive. Thirty-four other states have similar measures in place to criminalize knowingly concealing a positive HIV/AIDS diagnosis from a sexual partner. 

The legal challenges brought forth by the DOJ, along with a previous attempt by the ACLU and the Transgender Law Clinic, follow recent efforts by the Centers for Disease Control and Prevention to discourage the criminalization of HIV/AIDS concealment and to pressure states to repeal their “aggravated prostitution” laws. Under the Biden administration, the CDC has issued a “legal and policy assessment tool” that argues “HIV criminalization laws and policies increase stigma, exacerbate disparities, and may discourage HIV testing.” 

Instead, President Biden stated, in late 2021, that the country should work to “end the harmful stigma around HIV and AIDS.” According to the most recent statistics, 14 percent of transgender women in the U.S. have HIV. Of these transgender women with HIV, 81 percent are Black or Hispanic, leading to the discrimination claims against laws criminalizing “aggravated prostitution.” 

The CDC points out that Black and Hispanic men, and not just transgender women who are biological men, are disproportionately infected with HIV and, therefore, should not be “discriminated against.”

In response to the efforts of the Biden administration, some progressive states have already repealed laws that criminalize aggravated prostitution. In 2021, Illinois and New Jersey repealed all HIV-related criminalization laws on their books.

The DOJ, in claims similar to those of the ACLU, asserts that the “aggravated prostitution” charge that Tennessee levies against the virus-spreaders places undue harm on those found guilty. The department explained how “aggravated prostitution is also categorized as a ‘violent sexual offense’ mandating registration by those convicted on the Tennessee Sex Offender Registry, in most cases for life.”

“Individuals placed on the registry due to convictions for aggravated prostitution are restricted in where they may live, work and go in public, and have experienced increased homelessness and unemployment,” the statement added. 

“These individuals also face public disclosure of information about their HIV status, which can lead to harassment and discrimination,” the DOJ noted. “The department opened this investigation in response to complaints about enforcement of the statute.”

The ACLU’s claim specifies that being on the sex offender registry is too burdensome for Black and transgender women convicted of prostitution while concealing their HIV/AIDS status in Tennessee, as the stigma of being a registered sex offender may compel them to continue to prostitute themselves. “Jane Doe 1 has felt she had no option but to continue to engage in sex work to survive,” reads the account of one anonymous woman discussed in a lawsuit filed by the ACLU, “since it was too difficult to find stable employment, particularly as a transgender woman.”

A separate plaintiff in the ACLU suit, Jane Doe 2, is currently incarcerated for violating the sex offender registry requirements. 

There are currently 83 sex offenders registered for aggravated prostitution in Tennessee. The majority of them were convicted at Memphis, the fifth poorest city in the U.S. The ACLU alleges that undercover sting operations by the Memphis Police Department, which helped expose prostitutes with the virus, are the source of many of the convictions. 

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