Activists fighting HIV criminalization laws say they’ve lost federal government as partner
The Biden administration sued Tennessee over targeting people living with HIV, most of whom were Black, but Trump has canceled potential future efforts in other states.
A year after the Biden administration laid a blueprint for the federal government to take aim at state laws that criminalize the transmission of HIV, activists say that with the Trump administration, they’ve lost a crucial ally in challenging these outdated, racist, and homophobic laws.
Last year, the Department of Justice (DOJ) under President Joe Biden filed a first-of-its-kind lawsuit alleging that Tennessee’s aggravated prostitution statute, which made it a felony to perform sex work while living with HIV, violated the Americans with Disabilities Act (ADA). For people in the state who do not live with HIV, prostitution is ordinarily a misdemeanor.
Along with the elevated severity of the charge, an aggravated prostitution conviction in the state until last year also came with a lifetime registration as a “violent sex offender” and the onerous requirements and restrictions that accompany such a designation.
While the DOJ settled with Shelby County, Tennessee, which had the most charges filed under the law in the state, in May 2024, a separate private suit brought by OUTMemphis against Tennessee’s governor and attorney general is still making its way through the court.
Courts have repeatedly interpreted the ADA to include HIV. While the DOJ’s suit was seen as a landmark use of the ADA to challenge these laws, President Donald Trump has signaled the opposite approach. Just days after Trump’s inauguration in January, DOJ leadership ordered attorneys in the agency’s Civil Rights Division, which settled the case against Shelby County, to freeze new and ongoing civil rights cases.
That loss not only drains resources from the fight against HIV criminalization laws, but also eliminates a powerful incentive for states to reach favorable agreements, like the one reached with Shelby County.
“The ability for the federal government to bring litigation, or the threat of litigation, is very powerful,” said Sean McCormick, staff attorney at the New York City-based Center for HIV Law and Policy. “I think many state and local actors are motivated by either the financial expense—the logistical cost of pursuing litigation—so the DOJ is able to leverage that to push local actors to enter into these settlements across the board when it comes to the rights of people living with disabilities.”
HIV criminalization laws are a draconian reaction to the AIDS crisis of the 1980s and purportedly target people alleged to have intentionally spread the virus. According to Community Health Law Project, as of February, 32 states criminalize people living with HIV, and 28 states have penalty enhancements that are based on someone’s knowledge of their HIV status. But academic research and journalistic scrutiny have repeatedly shown that these laws disproportionately target Black people, particularly Black trans women.
According to the DOJ’s findings letter that preceded its lawsuit, Shelby County was home to two-thirds of people on the state’s sex offender registry for aggravated prostitution, and nine out of 10 people arrested in the county under the law were Black.
Additionally, an investigation by the Chicago Reader from June 2021 found that of roughly 60 charges in Cook County, Illinois, filed under the state’s now-repealed law that made it a felony to expose someone to HIV without their knowledge, 75% were Black. The investigation also found that charges were repeatedly filed for actions that do not transmit HIV, namely when people had spit on or bit police officers.
Illinois became the second state, after Texas, to repeal its HIV criminalization law that July, followed by New Jersey in 2022. A bill to remove similar criminal penalties in Maryland is making its way swiftly through the state legislature with bipartisan support.
Alongside arguments that the laws violate the ADA by targeting people living with HIV, public health experts have also said for years that HIV criminalization laws discourage seeking testing and treatment under the logic that if people don’t know they’re living with HIV, they can’t be accused of intentionally exposing someone to the virus.
Besides the freeze on civil rights cases, the new Trump administration has also taken other steps to hamper the work of those challenging these laws. For instance, in January, the Centers for Disease Control and Prevention (CDC) website was scrubbed of content related to gender identity and sexual orientation. HIV-related pages were caught up in the mix, including references to the CDC’s position against HIV-related laws.
“The CDC took an affirmative stance that they oppose punitive forms of HIV [criminalization]. That’s gone,” said Jose Abrigo, the HIV Project Director for national LGBTQIA+ legal advocacy group Lambda Legal. “And so that lack of a federal position against HIV criminalization will have an effect on HIV decriminalization.”
Abrigo added that research into HIV decriminalization is also likely to be impacted by Trump policies, namely a freeze on grants through the National Institutes of Health that have held up more than $1 billion in medical research funding.
“So it’s really just the larger collateral effects of his really harmful policies that’s going to affect HIV decriminalization efforts,” Abrigo said.
Still, experts are quick to point out that the DOJ’s role in challenging these laws was effective, with the Shelby County settlement as the first and only one of its kind. Even before the Trump administration’s rollback of civil rights enforcement, activists and advocates alike said it is up to local coalitions to challenge the laws and seek justice for people living with HIV throughout the country.
Kenyon Farrow, the board president of the LGBT Community Center of Greater Cleveland, is a longtime activist against HIV laws and for equitable access to HIV treatment and prevention. In his view, the rollback of the federal government’s attention changes little about how these laws must be challenged and ideally repealed. Farrow said he believed most local advocates would continue focusing on the state level, where most of the harmful laws exist.
“That’s probably where a lot of the work is going to start to happen to try to push for more states to reform those laws, regardless of what the federal government does,” Farrow said.
