The Supreme Court is expected to rule next month in a case about whether the U.S. government can require organizations to denounce prostitution as a condition of funding for their international HIV/AIDS work.
As those on the ground who work in programs trying to stop the spread of HIV have reported, this “anti-prostitution pledge” makes it harder to reach out to sex workers, the very people whose cooperation is needed to make these efforts work.
Since 2003, U.S. law has required organizations receiving U.S. anti-AIDS funds to have a specific organization-wide policy “explicitly opposing prostitution.” This requires organizations to censor their speech on prostitution, or sex work, even when using their own private funds in separate programs. The government contends the pledge is a way to identify the best organizations to carry out HIV/AIDS work and that the provision does not violate free speech because groups can set up parallel organizations not bound by the pledge. The Alliance for Open Society International, which brought the Supreme Court case, says that the pledge not only violates its First Amendment rights but also undermines the very public health goals that the government is providing the money to achieve.
In oral arguments in late April, Justice Stephen Breyer said it is “totally hypocritical” of the government to suggest the idea of setting up a separate entity simply to evade the pledge: “the structure says, ‘just kidding,’ [and] nobody believes them from day one.” And Justice Samuel Alito said that it was “quite a dangerous proposition” to compel organizations to express agreement with ideas with which they disagree as a condition of government funding.
The justices were right about the danger posed by the pledge to Constitutional free speech protections. But this case is not just about free speech, and even a pro-free speech ruling won’t do away with the law’s impediments to anti-AIDS work. Foreign groups, not protected by the U.S. Constitution, would still have to take the pledge. Regardless of the outcome of this case, it is important to recognize that forcing organizations to denounce sex work marginalizes sex workers and increases their risk of becoming infected with HIV.
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This point is not controversial. The U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, the law in question, recognizes that engaging sex workers, not shunning them, is critical to ending the AIDS epidemic. And the government’s claim that advocating against prostitution is “very very germane” to its strategy is undermined by the fact that the Leadership Act expressly exempts all UN agencies (among others) from the pledge.
These agencies, such as UNAIDS, have recognized that criminal laws and penalties for sex work impede sex workers’ access to comprehensive HIV services, and have advocated their removal as a “best practice” in the fight against AIDS. The World Health Organization and the World Bank have also recognized that involving sex workers, not denouncing them, in shaping public health strategies and addressing human rights abuses has been key to success in fighting AIDS across multiple countries and contexts.
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