DOJ Claims Tennessee Discriminates Against People With HIV, Threatens Lawsuit

A migrant worker wears a red ribbon during an event organized by the local government to promote HIV/AIDS knowledge among migrant workers in Chengdu, Sichuan Province, southwest China, on Dec. 1, 2005. China Photos/Getty Images

A Tennessee law is discriminatory against people with HIV, according to the U.S. Department of Justice (DOJ), which released a scathing letter threatening legal action if the state does not cease enforcement of the statute. The announcement, DOJ noted, was made on World AIDS Day, “an international day dedicated to raising awareness of the AIDS pandemic.”

DOJ had previously investigated the state, the Tennessee Bureau of Investigation (TBI), and the Shelby County District Attorney General’s (SCDAG) Office for possible violations of Title 2 of the Americans with Disabilities Act.

“The Department opened this investigation in response to complaints alleging discrimination on the basis of disability in the enforcement of Tennessee’s human immunodeficiency virus (HIV)-specific criminal laws, including the aggravated prostitution statute,” the letter, sent to representatives of each of the parties under investigation, stated.

Title 2 specifically prohibits public entities from discriminating against qualified individuals with “disabilities” or excluding them from participation in or denying them benefits under those public entities.

DOJ explained their investigation included interviews with individuals with HIV who had been arrested for and convicted of aggravated prostitution and a review of documents from various agencies, including the Memphis Police Department.

“Based on its investigation, the Department has determined that the State and the SCDAG subject people living with HIV to harsher criminal penalties—solely because of their HIV status—in violation of Title II of the ADA,” their letter to state leaders stated. “By enforcing this facially discriminatory law, the State and the SCDAG discriminate against people living with HIV on the basis of their disability.”

DOJ’s Findings

The focus of the DOJ’s scrutiny is Tennessee’s aggravated prostitution statute, which is enforced by the agencies mentioned previously, by unfairly escalating misdemeanor prostitution charges to felonies based solely on an individual’s HIV status.

The statute, in place since 1991, elevates those convicted of aggravated prostitution from a misdemeanor to a Class C felony “when, knowing that such person is infected with HIV, the person engages in sexual activity as a business or is an inmate in a house of prostitution or loiters in a public place for the purpose of being hired to engage in sexual activity.”

While the misdemeanor charge for prostitution carries a maximum sentence of six months and a $500 fine, the felony charge under the aggravated statute can lead to three to 15 years in prison and fines up to $10,000. Moreover, individuals convicted are required to register on the Tennessee Sex Offender Registry, often for life.

DOJ said this requirement unfairly leads to severe societal repercussions, including increased homelessness, unemployment, and the stigmatization of their HIV status, resulting in discrimination and harassment.

The law’s enforcement, predominantly in Memphis, was criticized by DOJ for perpetuating “outdated” and unscientific views on HIV.

“Since the passage of Tennessee’s aggravated prostitution statute in 1991, there has been significant progress in the understanding of and treatment of HIV,” the letter stated. “Beliefs and assumptions that individuals with HIV will spread it, or that having HIV is a death sentence, are now outdated and unfounded.”

Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division said in a press release that the law is not only discriminatory but also counterproductive to public health initiatives.

“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 DOJ’s Civil Rights Division. “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 Justice Department is committed to ensuring that people with disabilities are protected from discrimination.”

Critics of the law argue that it reflects a punitive rather than rehabilitative approach to prostitution, disproportionately affecting marginalized groups, including those with HIV.

What’s Next

“The aggravated prostitution statute does not require any individualized determinations,” the letter stated. “It is a blanket criminalization of people living with HIV, which is not grounded in current medical knowledge. Laws that facially discriminate against people with disabilities, like the aggravated prostitution statute, violate Title II of the ADA, and the SCDAG and the State must cease enforcing it.”

The DOJ’s findings have set the stage for potential legal challenges and reforms. The notification sent to the TBI, and SCDAG is not just a condemnation but also a call for action. It demands a reevaluation of enforcement practices and laws that discriminate against people based on their health status.

“We hope to work cooperatively with the State and the SCDAG to resolve the Department’s findings,” the letter concluded. “If either the SCDAG or the State declines to enter into negotiations, or if our negotiations do not succeed, the United States may take appropriate action, including initiating a lawsuit.”