A federal appeals court has ruled the United States cannot force US-based groups seeking international HIV/AIDS funding to denounce sex work. This decision from the U.S. 2nd Circuit Court in New York upholds a lower court decision in favor of the Alliance for Open Society International (AOSI), Pathfinder International, the Global Health Council and Interaction. The decision is a positive step for US-based organizations in terms of freeing them to implement and speak about best practice programs for communities of sex workers worldwide. However, the ruling does not prevent the United States from applying the “anti-prostitution pledge” (also known as the anti-prostitution loyalty oath) to organizations based outside of the United States seeking to obtain US government funding for international HIV/AIDS work.
The
current decision has its roots in a two separate law suits brought by AOSI (with Pathfinder International) and DKT International against USAID in 2005. These lawsuits challenged a policy developed in 2003 that requires organizations seeking PEPFAR funds to have a policy explicitly opposing prostitution and prohibits these organizations from engaging in activities “inconsistent” with an anti-prostitution stance. In the DKT case, a federal district court held that the pledge requirement was unconstitutional but this ruling was reversed in February 2007 by a circuit court in the District of Columbia. A district court held in the AOSI v. USAID lawsuit that the pledge requirement is unconstitutional and in a May 2006 initial ruling ordered the government to stop enforcing the requirement against both organization. The government appealed the case. In 2008 the Global Health Council and Interaction joined AOSI and Pathfinder’s lawsuit. In 2010 while this case was still pending the US Government provided further guidance about the anti-prostitution loyalty oath and instructed organizations to state that they opposed the “practices of prostitution and sex trafficking because of the psychological and physical risks they pose for women, men and children” and reaffirmed that funding recipients were not to engage in “activities that are inconsistent with [their] opposition to prostitution.”
The current decision holds that the anti-prostitution loyalty oath policy requirement “falls well beyond what the Supreme Court and this Court have upheld as permissible funding conditions” by compelling funding recipients to “espouse the government’s position.” The ruling also notes that the targeted speech concerning prostitution in the context of international HIV/AIDS efforts is “subject to international debate” and that organizations such as WHO and UNAIDS have “recognized advocating for the reduction of penalties for prostitution… as among the best practices for HIV/AIDS prevention.”
The ruling only applies to domestic US-based organizations seeking international HIV/AIDS funds. The policy remains in place for foreign NGOs receiving US government funds. Continuing to force non-US based international groups to sign the anti-prostitution pledge, means that the government continues to undermine best practices in HIV prevention. The most successful HIV prevention projects involving sex workers include strong efforts to promote leadership of sex workers as knowledgeable voices in their own communities, recruit sex workers as peer educators to conduct health promotion, and affirm sex workers’ value as members of society, while combating stigma. The US funding restriction has made all of those activities difficult, if not impossible, undermining health promotion and contradicting evidence-based public health practice.
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