Sex workers and advocates at We Can End AIDS March, July 2012, in Washington, DC. Photo by Melissa Gira Grant.
On the steps of the Supreme Court yesterday morning, shortly before arguments began on the constitutionality of compelling aid recipients to oppose prostitution, a dozen or so students in marigold hooded sweatshirts won the color-coordinated insignia game. Outside a photo op or two, the small group of activists with red umbrellas—which signal support for sex workers’ rights—left them folded at their feet. Sex workers, it appeared, would be as nearly invisible outside the Court as they would be in the arguments made within.
As expected, Deputy Solicitor General Sri Srinivasan, attorney for the United States Agency for International Development (USAID), who appealed the pledge case to the Supreme Court, was stuck defending an argument for which there’s no evidence other than the persistence of its supporters in claiming it to be true. That is, to oppose prostitution, Srinivasan argued, is central to the “reliable and effective” function of the United States’ fight against HIV.
That wasn’t quite the same case, though, that the plaintiffs—Alliance for an Open Society International (AOSI), joined by Pathfinder International and InterAction, representing AIDS projects around the world—brought. Though the pledge requirement jeopardizes their AIDS work, and their work with sex workers in particular, their challenge concerned the free speech issues involved. “A diverse mix of groups filed the briefs,” wrote Open Society Foundation’s senior policy analyst, Zoe Hudson, “because, no matter what their political persuasion and viewpoint, each believes that the First Amendment is sacred.” They prepared, and quite strategically given how politically untouchable the issue of prostitution has been in Washington, for this case not to serve as a venue by which to debate sex work. But there was no way to entirely sideline this question in the courtroom on Monday. It’s the argument the government wanted to have, and to an extent, one the Justices couldn’t put entirely aside, even if they lacked the evidence to fully weigh it.
The claim that opposing prostitution is “central” to the fight against AIDS is one entirely unsupported by data, including data from PEPFAR (the President’s Emergency Plan for AIDS Relief) itself. As the Institute of Medicine points out in their 2013 evaluation of PEPFAR, the only PEPFAR data available to them necessarily came from programs that comply with PEPFAR and adopt an anti-prostitution pledge, so it was not possible for them to compare those organizations who signed the pledge with the organizations that did not. PEPFAR’s own restrictions, for now, allow it to function evaluation-free.