(CN) — Taking aim at a 1991 Tennessee law enhancing criminal penalties for sex workers who have HIV, the American Civil Liberties Union in Tuesday sued the state on behalf of four unnamed HIV-positive women who were all convicted under the state’s “aggravated prostitution” statute and forced to register as sex offenders for life.
Buying and selling of sex is generally a misdemeanor in Tennessee, but the 1991 law made it felony if the sex worker knows they have HIV, the virus that causes AIDS. The plaintiffs say the law violates protections granted under the Americans with Disabilities Act while doing nothing to improve public safety or promote safe sex.
Rather, the four individuals claim their convictions have left them “effectively barred from many employment opportunities, housing options and public spaces as well as family and community life.” The convictions therefore represent violations of constitutional rights for equal protection, due process and the prohibition against cruel and unusual punishment, the plaintiffs say.
In their complaint, they refer to the law as “remnant of the profoundly prejudiced early response to the AIDS epidemic” which has been disproportionately applied to Black women who are “290 times more likely to be on the sex offender registry for an HIV-related conviction than a white man.”
The plaintiffs also include OUTMemphis, a nonprofit organization providing support and services for LGBTQ+ individuals.
“People convicted of aggravated prostitution must spend years in prison and then register as violent sex offenders for the rest of their lives — meaning they cannot access the housing, employment, health care and community life that they need to get back on their feet,” said Molly Quinn, executive director of OUTMemphis, in a statement Tuesday. “This statute solely targets people because of their HIV status and keeps them in cycles of poverty, while posing absolutely zero benefit to public health and safety.”
The plaintiffs note the law does not criminalize clients who have HIV, nor does it account for HIV-positive sex workers who use condoms or medication proven to eliminate the risk of transmission. On the other hand, there are no similar laws criminalizing sex workers who test positive for other, more prevalent sexually transmitted diseases including chlamydia and genital herpes.
In a statement, the ACLU said the law is “entirely divorced from science” and “applied indiscriminately, ignoring that either party to a sexual encounter can ensure against HIV transmission in many simple and effective ways.”
The law has come under fire before. In 2011, the U.S. Department of Justice reviewed the state’s sex offender registry program and expressed that aggravated prostitution did not require registration. But as other states have repealed or modernized HIV criminalization laws in recent years, Tennessee remains “the only state in the country that imposes sex offender registration requirements for engaging in sex work while living with HIV.”
A 2022 report by the UCLA School of Law Williams Institute found 83 people on the state’s sex offender registry for aggravated prostitution, 58 of which were convicted in Shelby County, where Memphis is county seat. Of those, the majority were Black women who were arrested as part of undercover police operations. The study determined most were so-called “survival sex” workers — people seeking to earn enough money for a place to stay overnight or food to eat.
“Disability discrimination is illegal and yet the aggravated prostitution law singles out economically marginalized people living with HIV for excessively harsh punishment,” said Alexis Agathocleous, deputy director of the National ACLU’s Racial Justice Program. “The results are predictable: Black women are the targets of this archaic, unscientific law — many of whom are simply trying to secure food, a place to sleep, or a way to meet their basic needs.”
The plaintiffs want the court to strike down the statute and the resulting lifetime sex offender registration requirement "as clearly discriminatory because they unlawfully punish people on the basis of a protected disability."
Messages to the governor’s office and state Attorney General Jonathan Skrmetti were not immediately returned Tuesday.
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