Tennessee put sex workers on sex offender registry for having HIV. They will be removed.

The Tennessee government has agreed to scrub sex workers who were unjustly convicted of being sex offenders due to an HIV diagnosis from the sex offender registry following a settlement this past Monday.

The lawsuit, OUTMemphis vs. Lee, concerns a Tennessee criminal statute regarding Aggravated Prostitution, which says that if any sex worker knows they are HIV-positive and has sex, they can be put on the state’s sex offender registry, regardless of whether the other party knew or if there’s proof of intent to transmit the infection. An additional lawsuit was filed by the U.S. Department of Justice earlier this year on the same issue.

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“The Aggravated Prostitution statute does not provide for any inquiry into the underlying facts and circumstances in an individual case,” says the ACLU in their initial complaint in the OUTMemphis case. “For instance, the statute does not allow for consideration of the alleged sexual activity at issue; the degree of the risk of HIV transmission involved (if any); whether preventative measures such as a condom, PrEP, or PEP were used; the client’s HIV status; whether the accused individual has a suppressed viral load; nor whether their HIV status has been disclosed.”

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The complaint continues, “A person with HIV can be convicted of Aggravated Prostitution for offering or agreeing to engage in sexual activity in exchange for compensation without actually engaging in that activity, or for engaging in, offering, or agreeing to sexual activity that carries no risk of HIV transmission”

At least 83 people are believed to have been affected by this, and most of them are Black and/or transgender women in the Memphis area, where police enforced this statute more and targeted marginalized individuals.

The settlement details how aggravated prostitution has been removed from the list of offenses that can put a person on the sex offender registry, and that notice of this must be given on the Tennessee sex offender website alongside letters sent to those affected by this law. The specific claims made by the plaintiffs regarding the illegality of the law are not going to be debated. Instead, the law will be overturned with the state paying legal fees for the plaintiffs.

“The General Assembly has also permitted anyone who is registered solely because of a conviction for one of these offenses to request termination of registration requirements with the Tennessee Bureau of Investigation,” says the letter.

“Each of us, regardless of our race, our genders, or our HIV status, deserves to be treated with dignity and respect and welcomed as full members of our communities,” said Milo Inglehart, staff attorney at Transgender Law Center, in a press release for the initial lawsuit. “With today’s filing, we join the ACLU, ACLU-TN, OUTMemphis, and our individual plaintiffs to challenge the counterproductive and discriminatory Aggravated Prostitution statute that unlawfully singles out people living with HIV, disproportionately impacts Black transgender and cisgender women, and places lifelong, punitive restrictions on those who are criminalized for trying to survive.”

The ACLU of Tennessee said in a statement, “We are pleased to share that today we entered into a partial settlement with the state of Tennessee on behalf of OUTMemphis and our individual plaintiffs. Through this settlement, the Tennessee Bureau of Investigations has agreed to promptly, fairly, and efficiently facilitate the process of removing people from the sex offender registry who were on it due to convictions for aggravated prostitution.”

“Tennessee’s discriminatory aggravated prostitution statute irrationally targets people living with HIV who engage in sex work, regardless of whether they take steps to ensure against HIV transmission. This settlement is one step towards remedying those harms by addressing the sex offender registration. However, as aggravated prostitution remains a felony, our legal team will continue to fight to overturn this statute and ensure that no one in Tennessee is criminalized based on their health status.”

LGBTQ Nation reached out to OUTMemphis and the Tennessee attorney general’s office for comment. Neither responded before this article was published. This article will be updated if they respond.

Update: OUTMemphis responded to the request for comment.

“All people deserve to live with dignity and in safety, regardless of their HIV status,” said OUTMemphis CEO Molly Quinn. “Today’s settlement facilitating removal of people from the sex offender registry who were on it solely due to a health condition is truly lifesaving, allowing individuals OUTMemphis serves to access housing, employment, healthcare and community life in a way they never could before. We will continue our challenge to Tennessee’s aggravated prostitution statute, so this settlement is not the end of our litigation. However, it is a crucial beginning for so many.”

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