OUTMemphis et al. v. Lee et al.

BACKGROUND:

Tennessee’s Aggravated Prostitution statute enhances sex work convictions from a misdemeanor to a felony, solely based on HIV status, which has long been recognized as a disability protected from discrimination under the Americans with Disabilities Act (“ADA”). Tennessee has no comparable law for any other infectious disease, even those that are more prevalent and transmissible than HIV.

Unlike Prostitution, which is a misdemeanor, Aggravated Prostitution is a felony that requires lifetime registration as a “violent sex offender” pursuant to the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004.

Tennessee’s Aggravated Prostitution law was passed in 1991 at a time of national panic over HIV. The law targets people engaged in sex work, enhancing their charges from misdemeanors to felonies solely based on HIV status, making it difficult to find employment, housing, healthcare and community life necessary to get back on their feet.

On October 24, 2023, the American Civil Liberties Union, the Transgender Law Center, and the ACLU of Tennessee filed a federal lawsuit in the U.S. District Court in Memphis on behalf of four Jane Doe plaintiffs and OUTMemphis, the state’s oldest and largest service provider for LGBTQ+ people.

In addition to violating the ADA, the lawsuit also argued that, among other things, the law violates equal protection, due process and the prohibition against cruel and unusual punishment.

The plaintiffs were asking the court to strike down the Aggravated Prostitution statute and the resulting lifetime sex offender registration requirement as clearly discriminatory because they unlawfully punish people on the basis of a protected disability.

THE RESULT:

On March 31, 2026, a federal judge ruled in favor of ACLU-TN's client OUTMemphis in a long-running challenge to Tennessee's Aggravated Prostitution law, a statute that singles out people living with HIV for harsher criminal penalties. The ruling, which came more than a year after oral arguments, found that OUTMemphis can move forward with a discrimination claim on behalf of its members under the Americans with Disabilities Act.

Judge Lipman dismissed OUTMemphis's remaining claims, including constitutional claims under the Due Process and Equal Protection Clauses and a separate claim under the Rehabilitation Act of 1973.

Judge Lipman also dismissed Governor Bill Lee as a defendant, finding that any harm caused by the statute could not be traced to the Governor because he plays no significant role in its enforcement.

However, Judge Lipman ruled that OUTMemphis can continue pursuing its case against Tennessee Attorney General Jonathan Skrmetti.

As Judge Lipman noted in her order, the Tennessee legislature passed amendments to the law after the lawsuit was filed that softened the sex offender registry requirements at issue in the case. Those amendments, which went into effect July 1, 2024, allow a person convicted of Aggravated Prostitution to seek expungement of their record under certain conditions. They also allow people convicted under the statute to petition the Tennessee Bureau of Investigation for removal from the sex offender registry, so long as their conviction occurred before July 1, 2024.

The criminal felony classification based on HIV status, however, remains on the books and is still enforceable. As Judge Lipman observed, many people prosecuted under the Aggravated Prostitution statute are barred from employment opportunities, housing, and public spaces in violation of Title II of the ADA, which prohibits disability-based discrimination in all activities, services, and programs of state and local government.

A ruling that OUTMemphis states a valid claim under Title II of the ADA is a win, but the fight does not end here. The Aggravated Prostitution statute remains part of Tennessee law, and its consequences continue to affect residents across the state.

The ACLU of Tennessee will continue monitoring government efforts to discriminate against Tennesseans living with HIV.

PLAINTIFF(S):

OUTMemphis, Jane Does 1-4

DEFENDANT(S):

Governor Bill Lee, Attorney General Jonathan Skremetti, TN Bureau of Investigation Director David Rausch, Commissioner of the TN Department of Corrections Frank Strada

ATTORNEY(S):

ACLU-TN: Zee Scout
ACLU: Alexis Agathocleous, Alexis Alvarez, Rachel Meeropol
Transgender Law Center: Lynly S. Egyes, Dale Melchert