OUTMemphis v. Lee

In Tennessee, an individual who is convicted under the generic Prostitution statute – which prohibits engaging in, or offering to engage in, sexual activity for compensation – faces a small fine and minimal jail time. While this is by no means inconsequential, Tennessee has also chosen to criminalize what it calls “Aggravated Prostitution.” Aggravated Prostitution is identical to Prostitution, with one key additional element: knowledge that one is living with HIV. Unlike Prostitution, Aggravated Prostitution is a felony that requires lifetime registration as a “violent sex offender.” The law ignores underlying circumstances; neither consent nor the use of mitigation (such as condoms, ART, or PrEP) are defenses. Indeed, the statute applies even when the alleged sexual activity poses no risk of HIV transmission whatsoever; and the registration requirement is automatic.

People charged with Aggravated Prostitution in Tennessee are most often cisgender and transgender women who engage in sex work to meet basic needs like food, shelter, or other necessities, the vast majority of whom are Black women. Indeed, in 2022, a Black woman in Tennessee was 290 times more likely to be on the sex offender registry for an HIV-related conviction than a white man.

Plaintiff OUTMemphis—a leading service provider of HIV testing, outreach and education in the Midsouth region—has joined four cisgender and transgender women forced to register for life as “sex offenders” due to their Aggravated Prostitution convictions to force Tennessee to abandon its illegal disability discrimination. The ADA is intended to address discrimination against people with disabilities in critical areas like employment and housing. Yet under Tennessee’s HIV laws, people convicted of Aggravated Prostitution are effectively barred from many employment opportunities, housing options, and public spaces as well as family and community life: they are, for example, forbidden from working, living, or even spending short amounts of time within 1,000 feet of a school, playground, park, or other area where children gather. In large cities like Memphis, finding work and housing outside these vast and ever-changing registry “Exclusion Zones” is nearly impossible.

Tennessee, and many other states, passed HIV-criminalization laws in the panicked early days of the AIDS epidemic. Over the last decade, many states have reformed their laws in recognition of the scientific consensus that such measures do not reduce the prevalence of HIV but rather risk doing the opposite: by criminalizing knowledge of one’s HIV status, states like Tennessee disincentivize at-risk individuals from seeking HIV testing and erode the trust in medical professionals that is needed to successfully access treatment and limit transmission. Despite clear evidence that HIV laws, and especially laws requiring sex offender registration, do not work, Tennessee stands alone in the harshness and arbitrariness of its statutory scheme.