Sex Workers No Longer Criminalized for Simply Living With HIV in Nevada

    In Nevada, sex workers living with HIV have been uniquely targeted by the state, facing harsher punishments than their seronegative peers and being shut out of the nation’s only legally regulated sex work industry. But advocates and lawmakers won a major reform to the discriminatory laws during Pride Month, when Senate Bill (SB) 275 was signed into law by Nevada Governor Steve Sisolak on June 6, 2021.

    In addition to narrowing the applicability of the criminal charge of intentional HIV transmission and reducing the penalty, the law—sponsored by State Senator Dallas Harris—entirely eliminates the statutory section providing criminal liability for simply doing sex work while living with HIV. No longer will sex workers—whether employed at licensed businesse or working illicitly—face felony charges that can carry a maximum sentence of 10 years and fine of $10,000.

    “When people are no longer penalized for knowing their status, it encourages them to come forward, get tested and get treatment.”

    The new law “fulfills the goal of reducing the harm to sex workers by allowing for people living with HIV to work and earn a living without the risk or fear of arrest or additional charges simply because they have HIV,” Chelsi N. Cheatom, program director of Trac-B Exchange, a syringe service program in Las Vegas, told Filter. “It also will hopefully encourage more people who engage in sex work to get tested and know their HIV status.”

    “When people are no longer penalized for knowing their status, it encourages them to come forward, get tested and get treatment,” said André C. Wade, the state director of Silver State Equality, a prominent supporter of the bill. While likely to encourages sex workers to feel safe enough to seek testing, the law simultaneously eliminates the mandatory HIV testing of arrested sex workers, restoring personal autonomy. “That’s good for all Nevadans.”

    SB 275 emerged from the Governor’s Advisory Task Force on HIV Exposure Modernization—created by a 2019 law fought for by Nevada HIV Modernization Coalition, a grassroots group mostly led by women living with HIV. A report from the Task Force, together with recommendations by the governor and legislative counsel, informed the bill that Senator Harris would introduce in March 2021.

    The new law puts to rest a statute that garnered challenges in the Nevada Supreme Court. In Glegola v. State (1994), the Justices rejected a sex worker’s request to vacate her convication and 15-year sentence for having agreed to engage in paid sex with an undercover cop while knowing her positive HIV status. The Justices paid no mind to the fact that no such sex even occured. In fact, researchers recently found that the circumstances in question in cases like Glegola “almost always” did not involve any sex, one of the few ways HIV can actually be transmitted, according to a May 2021 data brief submitted to the legislature by the Williams Institute at the University of California, Los Angeles.

    The enactment of SB 275 appears to be a resounding win for both the Black Lives Matter and sex worker rights movements. The HIV criminalization laws are mostly enforced, in reality, against Black sex workers. More than half of all HIV-related charges and convictions—61 percent and 64 percent respectively—were related to the laws specifically targeting sex workers. Black defendants were involved in 66 percent of the sex-work HIV-criminalization charges and 61 percent of the convictions.(In the scheme of things, the number of Nevadans directly impacted by the law is quite small: 47 discrete individuals since 1995. There have been 80 separate arrests under the HIV-related laws.)

    But it appears that an outright prohibition on the employment of HIV-positive sex workers at licensed businesses remains in place.

    Law enforcement can no longer target sex workers for simply living with HIV. One police department stands out when it comes to enforcement of the law. A large majority (78 percent) of HIV-related charges originated with the Las Vegas Metropolitan Police Department (LVMPD), the Williams Institute brief found. LVMPD did not respond to Filter’s request for comment.

    But it appears that an outright prohibition on the employment of HIV-positive sex workers at licensed businesses remains in place. SB 275 failed to make any amendments to the statute (NRS 441A.120) authorizing the regulatory ban (NAC 441A.800). Currently, anyone seeking regulated employment as a sex worker must undergo rigorous monthly HIV and sexually transmitted infection (STI) testing. If the results return as positive for HIV, or for syphilis, gonorrhea or chlamydia, “the person shall immediately cease and desist from employment as a sex worker,” the regulation states.

    Banning people diagnosed with an STI is different from banning people living with HIV. The former cases are curable, while the latter, at present, is a lifetime condition as well as a constitutionally protected disability.

    The regulation, presumably promulgated for the sake of reducing the chances of seroconversion, does not appear to account for the reality that HIV can become untransmittable when people adhere to treatment medications. The Board of Health, which devised the regulation, did not respond to Filter’s request for comment about any plans to amend the regulation regarding sex workers living with untransmittable HIV.

    Although it didn’t address the ban head on, SB 275 planted the seeds that will make it “easier [for advocates and politicians] to go back and address that,” Catherine Hanssens, executive director and founder of the Center for HIV Law and Policy, which supported the bill, told Filter. The new law prohibits health authorities, like the Board of Health, from barring people living with HIV from accessing places of public accommodation or employment, like licensed sex worker businesses. It additionally provides that such a policy would constitute a violation of the Americans with Disabilities Act.

    Nevada lawmakers could take action if the Board does not. “The continuation of this prohibition may be addressed by the next iteration of the Governor’s Advisory Task Force on HIV Exposure Modernization,” Wade told Filter. If so, it would follow in the procedural footsteps of SB 275.

    Despite the continuation of certain policies discriminating against sex workers living with HIV, the enactment of SB 275 adds Nevada to a list of other Western states, like Colorado in 2016 and California in 2017, to have legislated the repeal of harsh penalties against the vulnerabalized community. 



    Photograph of the bill signing courtesy of the Nevada HIV Modernization Coalition

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