OUTMemphis v. Lee

Issue Area: ,

Year: 2023 Court: Western District of Tennessee Status: Ongoing

TLC, the Racial Justice Project of the American Civil Liberties Union, and the American Civil Liberties Union of Tennessee are challenging a Tennessee law that targets Black trans and cis women and saddles people living with HIV with felony convictions and sex offender registration requirements for conduct that would otherwise be a misdemeanor, in violation of the United State Constitution and the Americans with Disabilities Act (ADA). 

In Tennessee, an individual convicted of "prostitution” faces a fine of up to $500 and up to six months’ jail time. While this is by no means inconsequential, Tennessee also criminalizes what it calls “Aggravated Prostitution.” Aggravated Prostitution is identical to Prostitution, with one key additional element: knowledge that one is living with HIV. Aggravated Prostitution is a felony carrying three to fifteen years’ in prison, a fine of up to $10,000, and lifetime registration as a “violent sex offender.” The law ignores underlying circumstances: neither consent nor the use of mitigation 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.

Black trans and cis women are disproportionately targeted by this law. 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 Mid-South—has joined four cis and trans women forced to register for life as “violent sex offenders” due to their Aggravated Prostitution convictions to demand Tennessee abandon this discriminatory law. The ADA is intended to address discrimination against people with disabilities in critical areas like employment and housing, and people living with HIV are people with disabilities under the ADA. 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.

Case Resources and Documents