OUTMemphis v. Lee Survives Motion to Dismiss: A CHLP Explainer, CHLP (2026)

On March 31, the U.S. District Court for the Western District of Tennessee issued a ruling in OUTMemphis v. Lee, a challenge to Tennessee’s Aggravated Prostitution statute. The court granted in part and denied in part the state’s motion to dismiss, allowing the first challenge to an HIV criminalization law using the Americans with Disabilities Act (ADA) to proceed.

In Tennessee, people living with HIV (PLHIV) who engage in prostitution face harsher criminal penalties than people without HIV. Typically, a conviction for prostitution is a misdemeanor offense. However, if a person living with HIV engages in an act of prostitution, the charge is elevated to aggravated prostitution, a felony previously requiring lifetime registration on the sex offense registry.

This case builds on the legal framework developed by CHLP’s Team ADA to Attack Criminalization (Team ATAC) that advances the use of federal disability law to challenge punishments based on health status. Brought by the American Civil Liberties Union, ACLU of Tennessee, and Transgender Law Center on behalf of OUTMemphis and several people living with HIV, the case argues that the aggravated prostitution law violates the ADA and the U.S. Constitution. Specifically, OUTMemphis argues in its amended complaint that Tennessee’s Aggravated Prostitution statute violates: (1) Title II of the ADA; (2) Section 504 of the Rehabilitation Act of 1973; (3) the Equal Protection Clause of the Fourteenth Amendment; and (4) the Substantive Due Process Clause of the Fourteenth Amendment.

The defendants in the case, Governor Bill Lee and Tennessee Attorney General Jonathan Skrmetti, moved to dismiss the suit, contending the court does not have the authority to hear the matter, and the plaintiffs did not allege sufficient facts to warrant a claim. The court ruled on the motion to dismiss based on the documents initially filed.

Title II of the ADA

• Under the ADA, state and local entities are prohibited from discriminating against individuals with disabilities and cannot exclude or deny the benefits of “...services, programs or activities…”[1] Courts interpret these terms broadly, meaning the ADA applies to a broad range of government actions. HIV is recognized as a disability under the ADA, which means people living with HIV are protected from discrimination based on their HIV status.

OUTMemphis argued that the attorney general is a public entity and therefore must comply with the ADA. The court agreed, finding that public entities have an obligation to ensure that the laws do not violate the ADA.[2]

In its decision, the court agreed that OUTMemphis can bring the suit against Attorney General Skrmetti. The court agreed that the attorney general’s enforcement of the aggravated prostitution statute “harms several of [OUTMemphis’s] services and impairs its core organizational activities.” Furthermore, there is “a reasonable risk of prosecutorial action by [Attorney General Skrmetti],” so he is not immune from prosecution. Thus, the claims against Attorney General Skremetti can proceed. However, the court dismissed the claims against Governor Lee, who “has no role in enforcing the statute at issue.”

Regarding the ADA claim, the Court similarly found that OUTMemphis is a “qualified individual,” because it serves people who are living with a disability and impacted by the aggravated prostitution law.

The Court furthermore concluded that the enforcement of criminal laws falls within the scope of the ADA. It agreed that the aggravated prostitution law “criminalizes individuals by classifying them based on their HIV status, which subjects them to discrimination and meets the elements of a Title II ADA claim.” The finding is consistent with prior precedents recognizing “a broad view of the protections encompassed within the ADA.” Thus, the court denied the defendants’ motion.

The court also affirmed Congress’s authority to regulate criminal law using the ADA. In addition to recognizing Congress’s power under Section 5 of the Fourteenth Amendment, the court acknowledged an “alternative foundation” for its power under the Commerce Clause.

Section 504 of the Rehabilitation Act of 1973

• Section 504 of the Rehabilitation Act guarantees that programs receiving federal funding cannot deny people with disabilities equal participation in their services or benefits solely because of their disability. To succeed on its 504 claim, OUTMemphis must show that the aggravated prostitution statute discriminates against people living with HIV intentionally and solely because of their HIV status and that no other reason exists for the differential treatment.

The claim under the Rehabilitation Act was dismissed. Although it recognized Congress’s power to override state immunity through the Spending Clause of the U.S. Constitution, it denied that discrimination under the aggravated prostitution statute is “solely” based on HIV. It reasoned that “[the law] distinguishes those who know that they have HIV from those who do not. Even though one cannot know that they have HIV unless they have it, discriminating based on one’s knowledge is not a discrimination ‘solely’ on the basis of disability.”

Equal Protection Clause of the Fourteenth Amendment

• The Fourteenth Amendment of the U.S. Constitution guarantees equal protection of the laws. This means that similarly situated people must be treated alike, unless the government has a sufficient justification for treating them differently. When analyzing an Equal Protection claim, courts will determine whether there is differential treatment that burdens fundamental rights, targets a suspect class, or has no rational basis. This means that even if similarly situated individuals are treated differently under the law, if the government has a valid reason for the differential treatment, then the law does not violate the Constitution.
   
• Rational basis review is a type of judicial review that courts use to determine whether a statute is constitutional. Under rational basis, a statute “must have a legitimate state interest, and there must be a rational connection between the statute’s . . .means and goals.”  Rational basis is very easy to prove, as long as there is any legitimate governmental purpose for the statute, it will survive rational basis review.

While the Court agreed that people living with HIV are treated differently due to the aggravated prostitution law, it did not find that the law was motivated by hostility against people living with HIV. The court agreed with Skrmetti’s argument that the aggravated prostitution statute survives rational basis review because Tennessee has a legitimate public health goal of stopping the spread of HIV and that “[d]iscouraging HIV positive individuals from engaging in prostitution rationally advances…” this goal. Even though OUTMemphis was able to show that similarly situated individuals are treated differently, they could not show that there was not a legitimate state interest advanced by the statute and therefore the Equal Protection claim was dismissed.

Substantive Due Process Clause of the Fourteenth Amendment

• The Due Process Clause of the Fourteenth Amendment guarantees that no person be deprived of “life, liberty, or property without due process of law.” Substantive Due process of law means that the government cannot pass a law that interferes with a fundamental right unless there is a legitimate reason.[3] Rational basis review is also used to determine whether a law violates substantive due process.

The court concluded that since Skrmetti provided a rational basis for the aggravated prostitution statute under the Equal Protection claim, the statute also met the rational basis standard under substantive due process. As a result, the substantive due process claim was dismissed. Despite evidence of the harms of the aggravated prostitution law and similar HIV criminalization schemes, as well as the absence of any research indicating reductions in HIV transmissions associated with these laws, the court found that the statute “is directly tied to public health goals.” It rejected OUTMemphis’ argument that the conditions that drove the passage of the aggravated prostitution offense have changed, concluding “The Aggravated Prostitution statute is still being applied as intended, to thwart the spread of HIV and deter knowingly HIV-positive individuals from engaging in prostitution.”

• By allowing this claim to move forward, the court has opened the door for people living with HIV to argue that laws that unfairly subject them to heightened criminal penalties on the basis of their HIV status constitute unlawful disability discrimination.
   
• The court also addressed remedies and held that if OUTMemphis is ultimately successful in arguing that the aggravated prostitution statute violates the ADA, it would be appropriate for the court to issue an injunction against the use of the aggravated prostitution statute against anyone. In practice, this injunction would stop the government from using the aggravated prostitution law to prosecute people living with HIV.

Although the Court dismissed some of the claims in the suit, the decision marks a historic milestone in the fight to leverage the protections of the ADA to challenge HIV criminalization. It affirms that the ADA does protect against discrimination within the criminal legal system. Based on the initial court documents, the court plausibly found that HIV criminalization laws, such as the aggravated prostitution statute in Tennessee, discriminate against people living with HIV, a protected disability, by subjecting them to heightened punishment. Moreover, it recognized that groups like OUTMemphis, a community-based LGBTQ+ nonprofit organization, are appropriate plaintiffs to bring litigation against these discriminatory laws.

As OUTMemphis continues, Team ATAC will continue to monitor and share updates and explore new opportunities to build on its work.  

NOTES

[1] 42 U.S.C. § 12132

[2] Pg. 28

[3]  Cornell Law School Legal Information Institute, “Substantive Due Process,” Wex,  https://www.law.cornell.edu/wex/substantive_due_process (last visited Apr. 10, 2026).