The National Center for Transgender Equality (NCTE) welcomes Monday’s announcement from the U.S. Department of Justice (DOJ) that calls upon states to eliminate or reform their antiquated HIV criminalization laws, which criminalize conduct by HIV-positive individuals that would be legal if they were not HIV-positive or did not know their status. The DOJ’s guidelines, “Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors,” explain how these laws are contrary to the science of HIV today and how these laws harm individuals and public health by reinforcing HIV stigma.
Over the decades, states have enacted or used existing criminal laws and policies, in the name of public health and safety, to effectively criminalize and silence persons living with HIV/AIDS. For example, state laws have been used to prosecute persons living with HIV when they failed to inform consensual sexual partners of their status—regardless of the actual risks involved or the precautions taken. In other examples, individuals have faced serious criminal charges based on actions like spitting that have no real risk of transmitting the virus.
The announcement and release of the guidelines by DOJ responds to advocacy and recommendations by HIV policy and legal experts, including the Center for HIV Law and Policy, the Positive Justice Project and others, regarding the dangers of these laws. Experts have noted that there is no evidence that criminalization laws deter risky behavior. Studies have found no differences in risky sexual behavior between residents living in a state with a specific disclosure law compared to residents residing in that does not; and criminalization only reinforces the wrong message that attempting to avoid sexual partners with HIV is an appropriate prevention strategy. HIV-specific laws can even act as a disincentive to get tested and know one’s status, or to disclose HIV status to a partner. Rather, advocates say scientifically-based laws and policies regarding transmission, treatment and prevention are sidelined by criminalization.
NCTE welcomes that the DOJ guidelines as a significant step forward, and urges state advocates to use them to press for repeal. We also urge DOJ to consider conducting a similar review and issuing similar guidance regarding harmful state and local laws that criminalize poverty and homelessness by making a crime out of activities like sitting, eating, storing personal belongings, or begging in public. NCTE has outlined other steps state and local advocates should press for to address the disproportionate incarceration of transgender people—and especially trans people of color—as well as to address the violence trans people face behind bars in our resource, “Standing with LGBT Prisoners: An Advocate’s Guide to Ending Abuse and Combating Imprisonment.”