What You Can’t Say Might Hurt You

Vol. 38 No. 2

By

Heather Doyle is director of the Open Society Foundations’ (OSF) Sexual Health and Rights Project (SHARP) and has worked since 2003 on OSF’s efforts to promote health and human rights for marginalized groups including Roma, HIV-positive women, sex workers, and transgender individuals.

Laws that disregard the reality of people’s lives can become a danger to those lives. Sex workers—including female, male, and transgender adults who receive money or goods in exchange for sexual services, either regularly or occasionally—understand this all too well. A wide range of laws affect their everyday lives, including criminal law, family law, and laws governing public services. Legal decisions about sex work are too often made on the basis of abstract judgments and not on an objective analysis of impact. To wit, public health legislation intended to halt HIV infection has been undermined by the U.S. government’s desire to stifle debate about prostitution.

The United States Leadership Act against HIV/AIDS, Tuberculosis, and Malaria (Pub L. No. 108-25) was enacted in 2003 and carries out what is commonly known as the President’s Emergency Plan for AIDS Relief (PEPFAR). At $15 billion over five years, PEPFAR was the largest global financial commitment ever to stopping a single disease. In 2008, Congress pledged an additional $48 billion over five years. Tom Lantos and Henry J. Hyde United States Global Leadership against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (Pub L. No. 110-293).

Included in the original law are two restrictions related to sex work. First, no U.S. funds could be used to promote the legalization or practice of prostitution. Second, it required organizations that directly or indirectly receive U.S. government funds to have a policy “opposing prostitution.” As a result of this “anti-prostitution pledge requirement,” as it is commonly known, implementers of PEPFAR-funded HIV programs were forced to adopt a position in line with that of the U.S. government, even if they preferred to remain neutral or take a different stance. The provision was particularly problematic in that the oath requires an organization-wide policy that governs the use of the organization’s private funds as well as the U.S. government’s money.

On July 6, the U.S. Court of Appeals for the Second Circuit protected the right to free speech by upholding the injunction against the anti-prostitution pledge for U.S.-based groups. The court recognized the detrimental effect of shutting down debate when there is a vigorous public discussion about which legal approach to sex work is best for HIV prevention.

The right to communicate freely on such matters of public concern lies at the heart of the First Amendment. The Policy Requirement offends that principle, mandating that plaintiffs affirmatively espouse the government’s position on a contested public issue where the differences are both real and substantive. For example, the World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) have recognized advocating for the reduction of penalties for prostitution—to prevent such penalties from interfering with outreach efforts—as among the best practices for HIV/AIDS prevention. Alliance for Open Society International v. U.S. Agency for International Development.

The decision is a victory for free speech and public health advocates worldwide. Unfortunately, however, the anti-prostitution pledge is still in place for foreign NGOs. U.S.-based implementers often rely on foreign NGOs, who sign sub-contracts that include the anti-prostitution pledge, to carry out their HIV prevention and AIDS treatment projects. As such, the anti-prostitution pledge still has the power to stifle debate, diminish the effectiveness of U.S.-funded projects, and put at risk the lives of sex workers.

Sex workers have disproportionately borne the brunt of the AIDS epidemic. In Ghana, Uganda, and Kenya, female sex workers, their clients, and the sexual partners of clients made up 33 percent, 10 percent, and 14 percent, respectively, of all new HIV infections in 2009. Joint United Nations Programme on HIV/AIDS (UNAIDS), UNAIDS Report on the Global AIDS Epidemic (2010), www.unaids.org/globalreport/Global_
report.htm.

In India, government estimates put the rate of HIV infection among sex workers at 5 percent, fifteen times higher than the overall HIV prevalence rate for the country. United Nations General Assembly Special Session (UNGASS), Country Progress Report: India (2010), www.unaids.org/en/dataanalysis/monitoringcountryprogress/2010progressreportssubmittedbycountries/india_2010_country_ progress_report_en.pdf.

Male sex workers, often left out of any services targeting sex workers, have been shown in some countries to be at a particularly high risk of HIV infection. In Argentina, for example, the HIV prevalence among male sex workers is thought to be 22.8 percent, compared with 1.8 percent among female sex workers. UNAIDS/WHO, AIDS Epidemic Update (2009), www.unaids.org/en/Dataanalysis/Epidemiology/2009AIDSEpidemicUpdate.

Sex-work communities around the world are in dire need of HIV/AIDS prevention and treatment services. They are demanding not just condoms, but the basic human rights protections that enable them to access condoms and use them safely and consistently. During the 2010 International AIDS Conference in Vienna, Austria, activists interrupted the U.S. Global AIDS ambassador’s speech to chant “PEPFAR kills sex workers.” See Sex Worker Protest at AIDS 2010, www.youtube.com/watch?v=ZeBIPHZGOE0&feature=player_embedded.

This plaintive cry to recognize that free speech is essential to health has been echoed elsewhere. In 2005, the Brazilian government left $40 million in U.S. HIV/AIDS funding sitting on the table when it refused to go along with the prostitution pledge. Pedro Chequer, cofounder and former director of Brazil’s AIDS program, explained that Brazil wanted to “remain faithful to the established principles of the scientific method and not allow theological beliefs and dogma to interfere.” He went on to explain, “Sex workers are part of implementing our AIDS policy and deciding how to promote it. They are our partners. How could we ask prostitutes to take a position against themselves?” Esther Kaplan, Just Say Não, The Nation, May 12, 2005, www.thenation. com/article/just-say-n%C3%A3o.

Interestingly, Brazil continues to be one of the few examples of effective national responses to slow HIV’s deadly march through sex-work populations. Cristina Pimenta, Sonia Corrêa, Ivia Maksud, Soraya Deminicis & Jose Miguel Olivar, Sexuality and Development: Brazilian National Response to HIV/AIDS Among Sex Workers (2010), www.plri.org/sites/plri.org/files/abia_sex_work_brazil_abia.pdf.

At first, the anti-prostitution pledge was not enforced against U.S. nongovernmental organizations (NGOs). The Department of Justice’s Office of Legal Counsel (OLC) had warned that such an organization-wide restriction, “which would prevent or require certain advocacy or positions in activities completely separate from the federally funded programs . . . cannot be constitutionally applied to U.S. organizations.” E-mail and attachment from OLC to the Department of Health and Human Services (HHS) and the United States Agency for International Development (USAID) (Feb. 17, 2004), Exhibit A to Declaration of Paul P. Colborn (Mar. 11, 2011), available at www.brennancenter.org/page//Justice/AJLawsuits/Colburn%20Declaration_31111.pdf.

The Bush administration later reversed itself and began enforcing the pledge against U.S. NGOs in 2005. Two legal challenges have been brought against the pledge. The first legal challenge was brought by DKT International in 2005 and was initially successful; the U.S. District Court for the District of Columbia ruled that the pledge requirement violated the First Amendment. DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 435 F. Supp. 2d 5 (D.D.C. 2006).

On appeal, the U.S. Court of Appeals for the D.C. Circuit overturned this decision and determined that the provision was constitutional based on the government’s representation that NGOs could set up subsidiaries that could use their private funds to speak free and clear of the pledge requirement. DKT Int’l, Inc. v. U.S. Agency for Int’l Dev., 477 F.3d 758 (D.C. Cir. 2007). The decision was not appealed by DKT to the Supreme Court.

In 2005, the Alliance for Open Society International (AOSI) and Pathfinder International, and later joined by the Global Health Council and InterAction, filed suit arguing that the pledge violated the First Amendment rights. As noted earlier, this past July, the U.S. Court of Appeals for the Second Circuit ruled in favor of the plaintiffs (CITE). This is in line with two prior decisions by Judge Victor Marrero of the U.S. District Court for the Southern District of New York. Alliance for Open Soc’y Int’l, Inc. v. USAID, 430 F. Supp. 2d 222 (S.D.N.Y. 2006).

Both the Obama and Bush Administrations have taken the same position in their legal arguments as well as in the guidelines issued trying to respond to the First Amendment concerns. As a result of the 2006 ruling, a preliminary injunction was put into place that prohibited the government from enforcing the pledge requirement against AOSI and Pathfinder. The government had unsuccessfully tried to appease the court’s concerns by issuing guidelines that would allow PEPFAR grantees to form privately funded affiliates. HHS Guidance, 72 Fed. Reg. 41,076 (July 23, 2007); USAID AAPD 05-04 Amend 1 (July 23, 2007). In a subsequent ruling in 2008, the court determined, however, that the guidelines would continue to force grantees to espouse the government’s message and required an onerous degree of separation, including separate facilities, staff, management, equipment, board members, and no federal funding for the affiliate. The court also extended the injunction at that time to the U.S.-based members of the Global Health Council and InterAction, which include nearly all of the U.S. NGOs implementing PEPFAR. The government appealed that ruling, too. While the appeal was pending, the Obama administration issued revised guidelines that made minor changes from the prior Bush-era versions. See 75 Fed. Reg. 18,760 (Apr. 13, 2010).) The district court ruled again that the pledge requirement was unconstitutional, notwithstanding the new guidelines, which failed to remedy the First Amendment problems. A preliminary injunction prohibits the government from enforcing the pledge requirement against AOSI, Pathfinder, and all U.S.-based members of the Global Health Council and InterAction, which includes nearly all of the U.S. NGOs implementing PEPFAR. HHS and USAID have appealed this decision to the U.S. Court of Appeals for the Second Circuit. While the appeal was pending, the government issued revised guidelines that made minor changes from the prior Bush-era versions. See 75 Fed. Reg. 18,760 (Apr. 13, 2010).) Oral argument was heard in the case on December 9, 2010.

To date, the government has refused to provide sufficient clarity about what exact speech is and isn’t permitted under the pledge. In a 2005 letter replying to the Open Society Foundations’ president who had sought clarification of what the pledge required AOSI to say about prostitution, USAID’s acting general counsel wrote, “We do not think that it is appropriate for USAID to make prospective determinations for private organizations about whether or not their policy statements comply with the statutory requirement.” Zoe Hudson, With Friends Like These: Ongoing Legal Challenges to the Anti-Prostitution Loyalty Oath Requirement in PEPFAR under the Obama Administration, in Human Trafficking, HIV/AIDS, and the Sex Sector (2010), www.genderhealth.org/files/uploads/change/publications/Human_Trafficking_HIVAIDS_and_the_Sex_Sector_12_3_2010_FINAL.pdf.

He went on to warn that “recipients of all USAID awards are subject to audits by the USAID inspector general,” and would be monitored for compliance.” In other words, AOSI was contractually obligated to comply with rules that were not yet defined.

In December 2010, Assistant U.S. Attorney Ben Torrance was asked, too, to clarify the government’s position during oral arguments before the U.S. Court of Appeals for the Second Circuit.

A blog account of the argument recounted the following exchange. Judge Barrington Parker Jr. asked: “What does it mean to oppose prostitution? If OSI works in the back streets of Mumbai, can it work with street workers and organize them not to work with customers who don’t use condoms?”

Ben Torrance: “Uh . . . it’s complicated.”

Judge Parker: “Give me a better answer.”

In the course of oral argument, judges asked whether supporting the unionization of prostitutes or advocating to ease government restrictions targeting prostitutes were allowed under the pledge. Torrance replied, “It depends. There are shades of grey. This is a judgment for Congress, not for the agency receiving the funds.” Katherine Franke, Second Circuit Hears Arguments in Prostitution Pledge Case, Gender and Sexuality Blog (Dec. 9, 2010), http://blogs.law.columbia.edu/genderandsexuality lawblog/2010/12/09/second-circuit-hears-argument-in-prostitution-pledge-case.

The lack of clarity on what programmatic responses violate the prostitution pledge has left groups reluctant to address the underlying vulnerabilities of sex workers to HIV lest they jeopardize their funding. The U.S. government focuses on basic HIV prevention services, including peer outreach and HIV counseling and testing, in their programs for sex workers. PEPFAR, Guidance Update for Prevention Among Most-At-Risk Populations, Technical Consultation on Interventions with Most-at-Risk Populations in PEPFAR Countries (2009), at slide 3, available at www.aidstar-one.com/sites/default/files/day_1-12_rapposelli.pdf.

These critical responses, however, are rendered anemic if not embedded into comprehensive strategies that address structural and policy barriers faced by sex workers when trying to access appropriate health information and quality care. These programming constraints may explain why a comprehensive, government-funded evaluation of PEPFAR’s efforts from 2003 to 2008 found no impact on HIV prevalence in sub-Saharan Africa despite the billions of taxpayer dollars invested. Eran Bendavid & Jayanta Bhattacharya, The President’s Emergency Plan for AIDS Relief in Africa: An Evaluation of Outcomes, 150 Annals of Internal Medic. 688 (2009), available at www.annals.org/content/150/10/688.full.

The public health community has documented a range of responses that are considered effective and necessary to combat HIV and AIDS. Some of these responses include drop-in centers providing comprehensive health and social services, access to legal assistance, and organizing of sex workers by sex workers. It is unclear whether any of these programmatic responses are allowable under the pledge. The UNAIDS International Guidelines on HIV/AIDS and Human Rights states: “With regard to adult sex work that involves no victimization, criminal law should be reviewed with the aim of decriminalizing, then legally regulating occupational health and safety to protect sex workers and their clients.” The UNAIDS 2012–2015 global strategy calls on countries to remove punitive laws and practices around sex work that block effective responses to HIV and AIDS.
UNAIDS, 20122015 Unified Budget, Results, and Accountability Framework (2011), http://unaids.org/en/media/unaids/contentassets/documents/document/2011/ubraf/UNAIDS_UBRAF_12042011.pdf.

In order to do so, this would require frank policy discussions about how laws and policies are impacting access to services for sex workers as well as broader health and human rights issues. PEPFAR has stifled debate on and critical understanding of sex work and HIV. Because the legal framework that criminalizes sex work increases vulnerability of sex workers to health risks including HIV infection, the United States should be encouraging debate and reform, not shutting it down.

Public health experts agree that an effective response to HIV/AIDS requires community involvement of the affected populations in the design, implementation, and monitoring of programs. UNAIDS, Intensifying HIV Prevention: UNAIDS Policy Position Paper (2005), http://data.unaids.org/publications/irc-pub06/jc1165-intensif_hiv-newstyle_en.pdf.

The UN and other public health experts highlight the need to build the capacity of sex-worker networks and communities and work with organizations of sex workers. Yet, PEPFAR implementers must ask grantees and partners to adhere to a pledge condemning themselves. Not surprisingly, organizations run by sex workers have refused to go along, thus becoming ineligible for funding. UNAIDS estimates that less than 1 percent of global resources are dedicated to programs to address the HIV and AIDS needs of sex workers. UNAIDS, Guidance Note on HIV and Sex Work (2009), http://data.unaids.org/pub/BaseDocument/2009/jc1696_guidance_note_hiv_and_
sexwork_en.pdf.

Perhaps the tide could change on prostitution politics. Recently, during a session of the Universal Periodic Review (UPR) at the UN Human Rights Council in Geneva, Switzerland, a group of human rights activists from the United States presented a report on the human rights violations that sex workers face in the United States, often as a result of their criminal status. Speaking to the Human Rights Council, human rights activist Darby Hicks commented that “State agents themselves, specifically police officers, commit physical and sexual violence against sex workers. These abuses are particularly rampant in low-income, African-American, and immigrant communities and also greatly affect transgender, bisexual, lesbian, and gay people. Globally, U.S. policies, such as the ‘anti-prostitution pledge,’ have negatively affected international HIV/AIDS efforts.” The report resulted in the recommendation that U.S. government “ensure access to public services paying attention to the special vulnerability of [sex] workers to violence and human rights abuses.” Best Practices Policy Project, Desiree Alliance & the Sexual Rights Initiative, Report on The United States of America 9th Round of the Universal Periodic Review (2010), www.bestpracticespolicy.org/UPRreport20101.html.

The U.S. government responded, “No one should face violence or discrimination in access to public services based on sexual orientation or their status as a person in prostitution.” U.S. Dep’t of State, U.S. Response to UN Human Rights Council Working Group Report (2011), www.state.gov/g/drl/upr/157986.htm.

It remains to be seen whether this small step represents a first step to examining how public policies contribute to violence and discrimination. The July ruling upholding the injunction of the anti-prostitution pledge for U.S.-based groups is a great step. PEPFAR remains one of the most successful legacies of the Bush administration, providing treatment for millions of people in developing countries. The Obama administration should protect this landmark initiative and ensure that PEPFAR’s investments are evidence-based and effective. They should urge Congress to repeal the anti-prostitution pledge requirement. Short of that, they should let the appellate court decision stand, which would continue to provide protections to U.S.-based NGOs.

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