by Anna Forbes
In a ruling praised by organizations working on HIV/AIDS policy and prevention, the U.S. Supreme Court last week struck down a decade-old law forcing groups that receive government money in a global anti-AIDS program to embrace a policy opposing prostitution.
By a vote of 6-2, the Court ruled that the Anti-Prostitution Pledge in the President’s Emergency Plan for AIDS (PEPFAR) violated the First Amendment rights of U.S.-based organizations and was therefore unconstitutional.
PEPFAR funding is allocated to implement the 2003 United States Leadership Act against HIV and AIDS, Tuberculosis, and Malaria. While a major step forward in terms of overall investment in global health (and particularly in the HIV/AIDS response), the Act contains some insidious provisions, one of which is the Anti-Prostitution Pledge (APP), which states that “no funds, “may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking,” and that “[N]o funds…may be used to promote, support, or advocate the legalization or practice of prostitution.”
The APP required, as a condition of funding, that all PEPFAR grantees write and adopt an explicit agency policy condemning sex work. Under this policy, grantees could not use any of their funding (including money received from other sources) on activities in any way related to sex workers’ rights. This resulted in the reduction or complete elimination of HIV prevention and treatment services for sex workers in numerous countries — including the de-funding of USAID-identified best practices programs.
Legal challenges to the constitutionality of the APP were brought by the Alliance for Open Society International (AOSI) and Pathfinders International in 2004; InterAction and the Global Health Council later joined the case.
Chief Justice John G. Roberts wrote in the majority opinion: “This case is not about the government’s ability to enlist the assistance of those with whom it already agrees. It is about compelling a grant recipient to adopt a particular belief as a condition of funding. By demanding that funding recipients adopt — as their own — the Government’s view on an issue of public concern, the condition by its very nature affects ‘protected conduct outside the scope of the federally funded program.’”
He added that although the government has a legitimate interest in controlling how PEPFAR funds are spent, it cannot require grantees to “pledge allegiance to the government’s policy of eradicating prostitution.”
The majority opinion was supported by Justices Samuel Alito, Stephen G. Breyer, Ruth Bader Ginsberg, Anthony Kennedy, and Sonia Sotomayor, with Justices Antonin Scalia and Clarence Thomas dissenting. Justice Elena Kagen, who had worked on the case while Solicitor General, recused herself.
It remains to be seen whether the Supreme Court decision will enable funded organizations based outside of the United States to abandon compliance with the APP without risk. The Court’s decision affirmed that U.S.-based agencies are protected under the Constitution but was not clear on whether agencies based outside of the United States, without the Constitution’s First Amendment purview, were similarly protected.
Despite this ambiguity, the decision is a clear win for those who uphold the human rights of sex workers and support access to the peer-based programming that has been shown to effectively reduce their vulnerability to HIV, as well as other health risks and human right violations.
Globally, sex workers are identified by UNAIDS and others as one the three “most at risk populations” (MARPS). In its 2011 report “Guidance for the Prevention of Sexually Transmitted Infections,” USAID wrote that countries receiving PEPFAR funding “should take steps to ensure that scale-up of prevention programs for MARPs is accompanied by appropriate protections of their rights, including the review of policies and regulations that criminalize or deter MARPs seeking services and training for service providers to reduce stigma and discrimination.”
Grantees’ ability to follow this guidance, however, was directly impeded by the APP requirement that grantees not only adopt an anti-prostitution policy but also distance themselves from any “organization that engages in activities inconsistent with the recipient’s opposition to prostitution and sex trafficking.”
Rather than risk funding loss, many grantees simply eliminated any sex worker-related services they had been providing. In a survey of staff in PEPFAR-recipient agencies, the Center for Health and Gender Equity (CHANGE) found that “19 of the 31 people interviewed in the field reported that they censored themselves or their organizations as a result of the pledge. Almost all contracting agencies reported that they have cleared their websites of references to sex workers or rights.”
In Bangladesh, for example, a drop-in center program recognized as a UNAIDS “best practices” model was defunded (losing 16 of its 20 centers) after the international NGO funding them decided to err on the side of caution in compliance with the APP. These drop-in centers provided homeless street-based sex workers with sanitation facilities, a place to sleep, temporary safety, condom counselling and promotion, and skills-building opportunities to facilitate transitioning out of sex work for those wishing to do so.
Hazera Bagum, director of the Bangladesh program, told CHANGE, “They came in and rested, educated themselves and talked to each other about effective HIV prevention … The monthly condom distribution rate used to be very high, but since the closings, there is less access, so sex workers are not using as many condoms. They distribute fewer every month.”
It is impossible for the U.S. government, or any government, to stigmatize people on one hand and simultaneously help them to reduce their HIV risk on the other. Gay men know the truth of this, as do women, as do people of color, as do sex workers, as do we all.
Now, at least, the Supreme Court has stopped Congress from insisting that its U.S.-based grantees attempt the impossible in this particular case. We have a long way to go, but this is progress.
Plus: For a broader view of how this fits into advocacy for sex workers rights, particularly with regard to HIV, read “Solidarity with Sex Workers: On the Agenda or Under the Bus?”
An advocate, organizer and writer, Anna Forbes has worked on HIV/AIDS policy since 1985 and on women’s health and rights since 1977. Now an independent consultant with an international client base, her work centers around women, HIV, gender, health and rights.