U.S. Supreme Court Strikes Down ‘Anti-Prostitution Pledge’

At the end of June, the Supreme Court handed down a flurry of important and controversial rulings. Media coverage focused on the Court’s assessments of the Voting Rights Act and the Defense of Marriage Act (both of which it found to be, at least in part, unconstitutional), and discussion of the verdict against the Anti-Prostitution Loyalty Oath (APLO) fell by the wayside. However, in siding with the plaintiff in Alliance for Open Society International (OSI) vs. United States Agency for International Development (USAID) to rule that the APLO was unconstitutional, the Supreme Court heralded a major, if partial, victory for sex workers rights and public health policy.

The issue at hand was whether the federal government was violating non-governmental organizations’ (NGOs) First Amendment rights by requiring them to take a stand against sex work in order to qualify for federal aid in fighting HIV/ AIDS. The APLO was part of a policy known as the President’s Emergency Plan for AIDS Relief (PEPFAR), which was enacted in 2003 under George Bush. USAID oversees the implementation of PEPFAR, and though both the Bush and Obama Administrations have tried to work around the free-speech issues by allowing NGOs to set up affiliates that are not bound by the pledge, several NGOs did not feel it was an acceptable compromise. Led by OSI, the organizations brought suit, and two lower courts ruled in their favor in 2006 and 2011.

In the decade since its implementation, PEPFAR has resulted in the distribution of some $46 billion dollars, all to programs that have had to adopt official policies explicitly opposing prostitution and sex trafficking,î and which disallow any vocal support for the legalization or practice of prostitution.î This requirement was vague enough to potentially apply to any sort of community organizing amongst sex workers, which discouraged many NGOs from working with them. Yet research has proven time and again that sex workers’ involvement in anti-HIV efforts is key in controlling the spread of the disease.

At the MSNBC blog, reporter Geoffrey Cowley provides a powerful example of how engaging sex workers can help reduce the incidence of HIV in an area. Nobody had ever gone to these [sex workers] and said, ïYou are human!’ So I walked in the mud and I talked with them in the alleys where they work,î he quotes Kenyan nurse Elizabeth Ngugi as saying. Cowley writes that Ngugi helped organize the sex workers in the slums of Nairobi to form a united frontî in demanding condom use from clients. When they stood together for safer sex, condom use rose from 4% to more than 90%– an increase that has since prevented 6,000 to 10,000 new HIV infections each year in [the district.]î

Reviewing the impact of the pledge on organizations like Ms. Ngogi’s, journalist Melissa Gira Grant recounts the findings of the Journal of the International AIDS Society. Whether or not organizations chose to adopt an anti-prostitution pledge,î she writes in The Nation, it has resulted in HIV and AIDS projects losing funding, shutting down, or facing investigation.î

In ruling against USAID’s policy on June 20th, the Supreme Court allowed American-based NGOs to return to doing vital work against HIV. Unfortunately, because the First Amendment only applies to US citizens, USAID may continue to require foreign organizations to take the APLO. Activist Kate Zen notes the limitations of suing on the basis of free speech when she writes that, The case in the Supreme Court was in no way about whether or not APLO is inherently unjust and harmful to sex workers.î She writes of the effects abroad, The pledge requirement caused a condom shortage among sex workers in Mali, the withholding of safer sex information from male sex worekrs in Cambodia, and the closure of community drop-in centers in Blangadesh ïwhere sex workers had previously attained condoms, health information, respite and solidarity.’ î (Links for these claims can be found at the source.) Ultimately, the SCOTUS ruling was a vital first step in what should be an international effort to include sex workers in public health policy, but it was only a first step.

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