The XIX International AIDS Conference (AIDS 2012) in Washington, DC. (IAS/Deborah W. Campos)
On Monday, the Supreme Court hears oral arguments in a case that will decide if recipients of government aid can be forced to oppose prostitution—or potentially any other issue as a contingency of receiving US funds. The case, Alliance for Open Society International v. United States Agency for International Development, arises from a controversial policy governing AIDS education, prevention and treatment, a decade-long fight that's crossed political lines and was kicked off by Representative Chris Smith as part of a larger conservative attempt to undermine reproductive and sexual health care. With HIV and AIDS projects facing closure if they don't adopt the government's position on sex work, it's sex workers who are paying the ultimate price.
From the onset of the global AIDS epidemic, sex workers have been scapegoated for the spread of HIV—sometimes even by those who claim to help them. Around the globe, AIDS provided an excuse to close red light districts and step up enforcement of anti-prostitution laws. In one early example, in 1988, California considered a bill to forcibly test all people arrested for prostitution-related charges for HIV. If positive, they could face felony charges. Fears, myths and stigma—fueled by a lack of HIV education and a refusal among policymakers to consider the reality of the epidemic—have historically made sex workers, along with gay and bisexual men and injection-drug users, an easy target.
Now, over thirty years into the epidemic, with that much more evidence available on the social and structural factors that drive HIV, policy still lags life-threateningly behind. One such policy is embedded in what's regarded as the United States' cornerstone AIDS policy, PEPFAR (the President's Emergency Plan for AIDS Relief). Passed into law in 2003 under President George W. Bush, PEPFAR has moved approximately $46 billion to programs working to prevent and treat HIV. But if your HIV program supports sex workers? You could find yourself denied funding and your doors shut.
PEPFAR contains what's been termed the anti-prostitution pledge, which forbids organizations who receive PEPFAR funding from "promoting" or "advocating" for "the legalization or practice of prostitution," and requires organizations to adopt a policy "explicitly opposing prostitution and sex trafficking." In some ways, the pledge resembles the now-repealed Mexico City Policy, or global gag rule, which forbade non-governmental organizations who received US funds from using even entirely separate funds to provide or refer to abortion services. Like the global gag rule, the pledge requirement limits not just what recipients can do with their PEPFAR funds, but with all their funds. But the pledge goes further than the global gag rule in two significant ways. First, in compelling recipient organizations to adopt a policy stating they oppose prostitution and sex trafficking, organizations and the people who work within them are more than gagged—they must take a vocal stance on an issue that may contradict both their public mission and their private beliefs. Second, it applies not just to international recipients (as the global gag rule did), but also to those organizations incorporated or based in the United States. Therefore, charge the organizations who have brought suit against the pledge, this is a violation of their First Amendment rights.