Sex and politics, in the streets and everywhere else.
A sex worker demonstrates the use of a female condom during an HIV/AIDS awareness campaign organized by a NGO in Siliguri, India, on February 15, 2010. (Reuters/Rupak De Chowdhuri)
Update: Conservative Republican Representative Chris Smith, who originally proposed the anti-prostitution pledge which the Supreme Court ruled unconstitutional today, issued a press release this evening denouncing the ruling. In it, he made the following allegation concerning the lead plaintiff, Open Society Foundations (OSF): "One does not have to search far into the Open Society's website, for example, to see the extent to which providing this group with federal monies will enable it to encourage the spread of prostitution." Of content readilly available on OSF's website, none "encourages" prostitution, though there are several blog posts concerning this Supreme Court case. Neither Smith (who in the past has also made the false allegation that sex worker groups who had recieved US HIV/AIDS funds were "pimps" and had "hand[ed]... minor girls back into the hands of traffickers"), nor his office, have responded to further requests as to which content the Congressman was referring to.
The United States may no longer compel US-based AIDS funding recipients to oppose prostitution as a condition of receiving federal funding. In a potentially far-reaching 6-2 decision (with Justices Scalia and Thomas dissenting, and Justice Kagan recused), the Court held today that under the First Amendment, these groups cannot be forced to adopt a government position in support of the eradication of prostitution.
“The Government suggests that if funding recipients could promote or condone prostitution using private funds, ‘it would undermine the government’s program and confuse its message opposing prostitution,’” the Court’s opinion begins. “But the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. That condition on funding violates the First Amendment.”
The decision still leaves room, however, for limiting the use of government funds for programs’s activities—or even advocacy for activities—that the government opposes. (To support this, the Court cites Rust v. Sullivan, which concerned abortion and family planning.) But, critically, the Court’s decision today allows US-based organizations who carry out government-funded HIV prevention and treatment work to continue to do so, regardless of their stance on prostitution.
All along, the government maintained that the anti-prostitution pledge was necessary to the US fight against AIDS, as outlined in the Global AIDS Act (or PEPFAR). In oral arguments before the court this April, a government attorney argued that because the United States took the position that “eradicating prostitution” is “central” to ending AIDS, this endowed the government with the power to mandate organizations seeking AIDS funds from the United States to oppose prostitution, even when it came to prevention and education activities they carried out with their own private funds. The pledge wasn’t used by the government to select the “best” groups for PEPFAR funding, but to ensure those groups selected would do nothing to contradict US policy in any of their work.
It was precisely these claims that made the government’s position so shaky, and ultimately, as the Court ruled, unsupported by the Constitution. Chief Justice Roberts, writing for the Court, was not impressed with the government’s use of only one case—Holder v. Humanitarian Law Project—to support its argument for restricting what a US funding recipient does with its private funds. “That case concerned the quite different context of a ban on providing material support to terrorist organizations,” wrote Chief Justice Roberts, “where the record indicated that support for those organizations’ nonviolent operations was funneled to support their violent activities.” (Dissenting, Justice Scalia retorted in his way that with this ruling, “If the organization Hamas—reputed to have an efficient system for delivering welfare—were excluded from a program for the distribution of US food assistance, no one could reasonably object.”)
One particularly disturbing element of the anti-prostitution pledge was simply how it was written. When initially introduced by Representative Chris Smith as an amendement to PEPFAR, it lumped together “prostitution and sex trafficking.” Though these are distinct phenomena, Congressman Smith often referred to both interchangeably—as when he claimed that an organization supporting HIV peer education and prevention among sex workers were “traffickers,” stating that the pledge was needed to keep US funds out of the hands of “pimps and traffickers.” Though the Court did not take up the issue of differentiating prostution and sex trafficking in the language of the pledge itself, in ruling as they did, they have declared the pledge is unconstitutional whether it related to prostitution or to sex trafficking.
As HIV/AIDS advocates, and in particular sex workers and AIDS projects that work with sex workers, celebrate this decision, some big questions remain about how this decision will play out in the real world of HIV work: in clinics, in drop-in centers, in brothels and karaoke bars—and in foundations’ own decisions about which organizations to fund.
“Our first reaction is of course to welcome the ruling,” Open Society Foundation’s (OSF) Public Health Program Director Marine Buissonniere told The Nation. OSF, a plaintiff on the suit, is a key funder globally on sex-worker health and rights. “The ruling will now allows recipients of USAID funding to operate without ideological interference from US government.” With the pledge struck down, “we no longer are being told we must ignore the years of evidence showing that we must partner with sex workers in order to address the AIDS pandemic.”
What the pledge accomplished in part was a chilling effect: as it was written so vaguely, and targeted opinion rather than activities, organizations were left to interpret it on their own. “We hope that this will re-open up the space for free expression of ideas, about what works and what doesn’t, in terms of HIV funding for sex workers,” said Buissonniere. “The immediate impact of this decision will be to lift the taboo on funding sex workers, which is something we’re excited to see.”
However, as the challenge to the anti-prostitution pledge concerned the First Amendment rights of organizations based in the United States—like Open Society Foundations, as well as Pathfinder International and InterAction, who joined them in the challenge—it could still be applied to organizations based outside the United States, to whom First Amendment protections are not extended.
“The implication for foreign NGOs remains murky,” Chi Mgbako, a professor at Fordham Law School focusing on sexual health and rights, told The Nation. “Many current and potential recipients of US global AIDS funding are foreign NGOs—they must also be free from the pledge. But today’s decision is an incredibly important step in the right direction—activists must keep pushing to ensure that this harmful policy is completely and fully repealed.”
The case today may have been won on First Amendment claims, but for the Supreme Court to strike down the anti-prostitution pledge can also be considered a win for sex workers’ rights issues more broadly, including the right to access healthcare. It comes at a moment when the tides are turning—as the Global Commission on HIV and the Law recently identified the criminalization of sex work as a significant factor in fueling the spread of HIV and in thwarting prevention efforts, and as Human Rights Watch adopted a position this May opposing the criminalization of sex work as a human rights issue.
“It’s a very hopeful thing to see,” said Anna Forbes, MSS, an independent consultant working on women and HIV prevention, “for the Supreme Court to apply the same level of reasonableness to sex work as an issue as they would apply to any other population. Hopefully, this will make sex work an acceptable topic for public discussion, which it has not been.” Still, Forbes told The Nation, “I think we’re going to have a struggle in this country, as we always do, on sexual and reproductive health issues, but I think at this moment we’re starting to go in a good direction. We’re starting to come to awareness that the rest of the world has come to consensus on this. The World Health Organization and UNAIDS policies on sex work are very clear on this issue. The US is beginning to think, ‘we are out of step on this.’ ”
The United States government itself may not have backed down today from its stance on not just criminalizing but also eradicating prostitution, but a blow has been struck. (A request for comment from the office of Representative Chris Smith, the anti-prostitution pledge’s chief supporter in Congress, has not yet been returned.) As the Supreme Court has ruled, HIV prevention can no longer be used as a political tool for furthering anti-prostitution politics.
A sex worker demonstrates the use of a female condom during an HIV/AIDS awareness campaign organized by a NGO in Siliguri, India, on February 15, 2010. (Reuters/Rupak De Chowdhuri)
Ten years ago, the United States dramatically ramped up AIDS funding, but the funding came with this dangerous string attached: in order to qualify, non-governmental organizations must adopt an explicit policy opposing prostitution. Proposed by Republican Representative Chris Smith as an amendment to the landmark AIDS legislation the Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (or, PEPFAR, the President’s Emergency Plan for AIDS Relief), this anti-prostitution pledge requirement was a conservative attempt to conflate offering HIV prevention and treatment to sex workers with promoting the actual practice of prostitution. Some feminist organizations—like the Coalition Against Trafficking in Women and Equality Now—who oppose prostitution and sex work have also supported the pledge requirement. This April, after several years of legal challenges in lower courts brought by health and rights advocates, the United States had to defend the anti-prostitution pledge in front of the Supreme Court. Its decision is expected this month.
In the decade that’s passed since the pledge was made a requirement of AIDS funding recipients, it’s become more difficult for some prevention projects to reach sex workers, and others have had to close completely. As reported in the Journal of the International AIDS Society, the vague language of the pledge—as well as its political roots in attempts to eradicate sex work—has meant that PEPFAR recipients are left to interpret the pledge broadly, which in some cases has led them to cease providing any services to sex workers, lest they lose all their funding.
Some projects have been targeted more than others, notes a brief from the Center for Health and Gender Equity. “Because drop-in-centers offer control, knowledge, and some degree of comfort to sex workers,” their researchers found, “they have been a particular target under U.S. policy.” Durjoy Nari Shangho’s drop-in center in Bangladesh lost their funding as a result of their NGO sponsor signing the pledge. As a result, the street-based sex workers they served, the majority of whom are homeless, were without a place to sleep, bathe or use a bathroom—or a safe space in which to educate one another about HIV and prevention. Representative Chris Smith attempted to explain the US denial of funds to these kinds of programs and their resultant service closures as necessary to prevent PEPFAR from becoming “potential funding for pimps and traffickers.”
One program was in Smith’s sights in particular: SANGRAM, based in India, recognized by both USAID and UNAIDS as a best-practice model. SANGRAM refused to sign the pledge, and notified USAID that it would be returning its funds—which was described by the media as a US decision to defund SANGRAM, claiming it was trafficking children. Why was a program lauded for being such a good partner now suddenly recast as the enemy? Smith used this “case” as justification to fight for the pledge, while Representative Mark Souder, then a Republican Congressman from Indiana, complained—and apparently lied—to USAID that “funding for SANGRAM was terminated only after a concentrated effort by the State Department’s Trafficking in Persons office.”
As some members of Congress use sex workers’ health in much the same way they use women’s health and abortion, targeted AIDS projects have seen their funding cut and services cease and sex workers have paid the price. Notably, the United States exempted some US-funding recipients recipients from the pledge—the Global Fund for AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Advocacy Coalition and all UN agencies. But as Supreme Court Justice Sonia Sotomayor told the US attorney Sri Srinivasan this April as he defended the pledge, “I would have less problem accepting your message if there weren’t four major organizations who were exempted from the policy requirement. There seems to be a bit of selection on the part of the government in terms of who it wants to work with.” Chris Smith, the pledge’s architect, has certainly shown this to be true—at the expense of not just sex workers’ health but the fight against AIDS.
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.
This didn’t prevent some of the Justices from tangling with the government’s claim of “centrality.” If anything, the government’s reliance on centrality to defend the pledge weakened their position overall. “As far as I can tell from the briefs,” Justice Stephen Breyer remarked, “the people who work with the prostitutes to try to prevent AIDS uniformly tell us that if you go to those prostitutes and you try to get them to take steps to stop AIDS, it’s very hard to do if at the same time you’ve announced you’re against all prostitution.” This provided the Court with one of the few instances in which they could discuss what’s been reported by sex workers and those who provide health care to sex workers: that the pledge puts PEPFAR at cross-purposes with itself. “What they’re saying,” Breyer continued, “is that the condition imposed will interfere with the objective.”
Srinivasan, the attorney for the United States, attempted to counter this by citing an amicus brief filed by the Coalition Against Trafficking in Women (CATW) and Equality Now. It’s true that the brief restates the opinion that Congress has adopted—that “prostitution and sex trafficking” fuel the AIDS epidemic—but then it goes on to assert that the CATW and Equality Now are “opposed to the imposition of criminal penalties” against who they call “prostituted persons.” The government’s attorney did not mention that this view advocating against charging people with prostitution would very likely mean these two organizations who support the anti-prostitution pledge could not themselves abide by it.
The centrality issue hovered while two related questions took on even more abstract forms and the arguments wore on. (The first comment I heard when exiting the Court: “I wish we could have just interrupted arguments and said, ‘OK, all here in favor of prostitution? Let’s just end this here.’ ”) First: is it sound for USAID to guide recipients to separate into two organizations in an attempt to isolate PEPFAR funding bound by the pledge from private funds that might not? Second: should a government aid recipient be understood as acting as a “government spokesperson” who as a condition of funding must espouse, or can be compelled to espouse, the government’s viewpoint as its own?
Justice Breyer argued that operating as separate organizations is insufficient to remedy free speech concerns. He continued, “When A says ‘I believe in X’ and then they set up a separate structure—and every one knows they have set it up; I mean, that’s the point of it—and the structure says, ‘just kidding,’ nobody believes them from day one.” The claim, Breyer was pointing out, that organizations can continue to operate after adopting the pledge by splitting into separate organizations is itself at odds with the government’s centrality argument. Breyer was joined by Justice Ruth Bader Ginsburg in questioning the separability issue. “The DC district court said in its opinion, which was in your favor,” Ginsburg said to the government attorney, “ ‘Oh, all you have to do is spin off a subsidiary that gets the government money; it’s just a simple matter of corporate reorganization.’ But you know that getting an NGO, a new NGO, recognized in dozens of foreign countries is no simple thing to accomplish.”
On the spokesperson question, USAID and AOSI argued opposite points. Srinivasan described funding recipients as representatives of the US government, who cannot be sufficiently monitored and so must agree with the government’s policy because that will result in their “self-policing.” AOSI’s attorney David W. Bowker asserted repeatedly that as a result, the pledge forces a recipient into acting as a “government spokesperson” in public and in private, when that role cannot be bought with a grant agreement. “What is the limiting principle?” Bowker asked. “If all that’s required here is germaneness,” can the government then “give a dollar, and you own the viewpoint and you own the private speech? Where does that end?”
Here the government’s case got caught up in a term that pestered Justice Antonin Scalia: “partner.” When recipients get funding for aid work, said Srinivasan, they “partner” with the government. “It’s not just a naked grant of money,” he continued. “It is a naked grant of money to implement a particular program,” Scalia insisted. “And you call that ‘partnering with the Federal government’?”
“I do,” Srinivasan replied.
“Terrible verb,” said Scalia, for which he got his laugh.
As to the compelled speech limitation: this was argued by Bowker for AOSI, with Justices Sotomayor and Samuel Alito raising repeated concerns. “I’m not aware of any case,” said Justice Alito, “in which this Court has held that it is permissible for Congress to condition federal funding on the recipient’s expression of agreement with ideas with which the recipient disagrees. It seems to me like quite a dangerous proposition.” Is not the government attempting, as the government’s attorney put it for Alito, to “leverage funding to suppress a viewpoint”?
“Suppose you have an organization that previously has expressed support for the legalization of prostitution,” asked Alito. “When you tell them, well, if that’s your policy you can’t get our money, they say, well, we need your money, so we’re going to have to say uncle and now we are opposed to the legalization of prostitution. That then—that isn’t trying to change people’s viewpoint?”
Justice Sonia Sotomayor took up the question of what the principle behind the anti-prostitution pledge could look like were it applied to other issues. “Let me posit a hypothetical that I’m actually very troubled by,” Sotomayor said. “Let’s assume a city government is undertaking a campaign to prevent teen pregnancy and its associated problems, and it wants to promote the use of contraceptives,” as well as other programs, like parenting and daycare. What if, she asked, a church sought funding for a daycare project? “Can the city now say because we have this really important need to avoid sexually transmitted diseases, anyone who seeks our funds also have to say they believe in the use of contraceptives?” Alito offered a parallel example, on gun control. (Justice Scalia offered a third example to counter, asking why the government could be compelled to fund the Muslim Brotherhood over the Boy Scouts, that didn’t seem to go anywhere other than to bring up the apparently unquestionable rightness of the Boy Scouts.)
The limiting factor with all these hypotheticals, as well as the case at hand, is where both sides appeared to find agreement: the funding restriction had to be “germane” to the operation of the government’s program. If, as the government argued, eradicating prostitution was central to the government’s plan to end AIDS, in effect PEPFAR would be an anti-prostitution program, and so holding funding recipients to the anti-prostitution pledge would pass the “germane” standard. But as Justice Breyer pointed out, “Congress has two opposite views on this in front of it. One is the view that the way to fight AIDS is consistent with and is furthered by longer-term efforts to abolish trafficking in women—okay, prostitution. The other view is the better way to do it is to go into the active sex worker area and not express views on the merits of what they are doing.”
This would be the only time in the entire hour before the Court that the actual differing opinions would be clearly stated, and that the people being discussed in this case concerning the length and value of their lives would be so identified.
Perhaps the strongest case made against the “germane” standard, and with it an argument questioning the government’s insistence on the centrality of opposing prostitution, was raised by Justices Ginsburg and Sotomayor and just as arguments came to a close. Why, they both asked, if opposition to prostitution is so central to the government’s plan to protect the world from AIDS, did the government then exempt from the pledge requirement select programs (like the Global Fund to Fights AIDS, Tuberculosis, and Malaria) which together amount to 20 percent of PEPFAR’s spending?
“There seems to be a bit of selection on the part of the government in terms of who it wants to work with,” said Justice Sonia Sotomayor in the least subtle (but most necessary) burn of the day. “It would seem to me that if you really wanted to protect the US, you wouldn’t exempt anybody from this.”
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.
The anti-prostitution pledge has already been rejected by lower courts, and so comes to the Supreme Court on the government's appeal, with USAID defending their enforcement of the pledge. In 2005, Alliance for Open Society International (AOSI) filed a suit challenging the pledge, and won in district court, receiving a temporary injunction barring its enforcement. After numerous government appeals, as well as successive attempts by USAID and the Department of Health and Human Services (HHS) to clarify how the pledge is enforced in light of the legal challenges, the Second Circuit Court of Appeals ruled in 2011 that the pledge requirement "falls well beyond what the Supreme Court and this Court have upheld as permissible conditions on the receipt of government funds." The pledge, the Court stated, "does not merely require recipients of [PEPFAR] funds to refrain from certain conduct, but goes substantially further and compels recipients to espouse the government’s viewpoint."
What has this meant in practice, for people working in HIV prevention and treatment? According to a recent analysis of the pledge's impact published in the Journal of the International AIDS Society, whether or not organizations chose to adopt an anti-prostitution stance, the pledge has resulted in HIV and AIDS projects losing funding, shutting down or facing investigation. The analysis also reports that as a result of program closures and investigations, sex workers were isolated from other HIV and AIDS projects. Facing the threat of excluding sex workers from prevention efforts, Brazil turned down $40 million in PEPFAR funding rather than sign the pledge.
"The pledge requirement makes people hesitant to engage in programming because there's considerable confusion about what is and isn’t allowed with your private funds," Zoe Hudson, a senior policy analyst at Open Society Foundations, told The Nation. "When groups fear that starting a program or taking a stand might run afoul of the law, they’re inclined to think, 'forget it, I'm going to go do something else.'" The pledge has also led some organizations to "self-censor," said Hudson. "We'll hold an event, and then a group will say, 'We couldn't possibly come to that because it might violate the pledge.' And we'll say, 'Actually, the preliminary injunction prevents the government from taking action against you.’ But the point is, if you’re dependent on US government money for your development work, then you don't want to take any of those risks."
The pledge, in a way, extends the exclusion and criminalization faced by sex workers in the United States to the organizations who venture to include them in their US-funded programs—this, despite the fact that USAID regards sex workers as one of their "most-affected risk populations." In what way, then, can PEPFAR effectively reduce HIV among sex workers, when it's also producing an environment where those best positioned to support them are cut off from the resources to do so?
"I helped write PEPFAR," Representative Barbara Lee told The Nation. "This was an idea that came out of the Congressional Black Caucus, right before President Bush's first State of the Union." Lee said that it was after getting Democratic and Republican consensus on PEPFAR that Representative Chris Smith proposed an amendment. "I'll never forget that day," said Lee. "We thought we had the votes to pass it based on negotiations, but then Chris Smith offers this—what did he call it? A conscience clause. This was the start of this anti-prostitution clause."
Smith's amendment adding the anti-prostitution pledge to PEPFAR came with other Republican amendments that have also been challenged by advocates, such as requiring the "ABC approach"—abstinence, be faithful, use a condom, with emphasis on the A and the B. For ten years now, Smith has defended the pledge, both from failed attempts to remove it from subsequent re-authorizations of PEPFAR and from the courts. Speaking before the House Committee on Foreign Affairs in 2007, Smith alleged that his amendment was necessary in order to prevent PEPFAR from making the U.S. "enablers of prostitution and sex trafficking," even as district courts had already rejected the pledge. In 2010, when USAID and HHS considered amending guidance on how the pledge should be enforced in response to the legal challenges, Smith claimed that in doing so, "The Obama Administration is enabling sex trafficking and prostitution all over the world. The brothel owners and operators and sex traffickers want U.S. taxpayer funds. The Administration is practically working hand-in-glove with them.”
This is not a belief shared by all those in Congress who authored PEPFAR. Several current and former members of Congress—including Lee as well as Republican PEPFAR supporter Senator Bill Frist and Democratic Senator Patrick Leahy, who has worked on anti-trafficking policy—state in their brief to the Supreme Court that Congress's AIDS strategy is in reality undercut by the anti-prostitution pledge. "The strategy that Congress chose," they write, "reflects Congress’s determination that, absent violence or coercion, conveying a government message explicitly opposing prostitution is not an effective way to address that high-risk behavior, and could disserve [PEPFAR]’s HIV/AIDS-fighting purpose."
"I've visited a variety of countries around the world and talked to sex workers," said Lee, "and I really understand how this is a big problem, in terms of getting the kind of treatment, services, and prevention that they need." (In July 2012, sex workers disrupted a session on US AIDS policy at the International AIDS Conference, demanding "Repeal the pledge, reform PEPFAR" and occupying the session hall as both Frist and Lee spoke.) Were it not for the pledge, said Lee, "we'd save more lives. That's the bottom line. And because of the stigma and because of all the issues around this, we're not reaching the numbers that we need to reach."
It's Smith's position that the government must defend this Monday: that advocating against prostitution is "central" to PEPFAR. "What the government is trying to argue," said Hudson, "is that this requirement is essential for the effective operation of the program: programs in foreign countries are hard to monitor and NGOs are a representative of the US government, so they should be able to screen people based on their views. They argue that eradicating prostitution is central to their global HIV/AIDS strategy." By this logic, in order to prevent sex workers from being infected with HIV, more emphasis is placed on eradicating sex work than on eradicating HIV.
But that isn't the case before the court on Monday. For the plaintiffs, who are supported with amici briefs from the American Civil Liberties Union, the Cato Institute, Partners in Health, the Center for Reproductive Rights and the American Jewish World Service, among others—Monday's arguments are not about sex work, or even HIV. They will argue that the government cannot, as a condition of funding and as Hudson explained, "force people to take an opinion on a controversial issue. The government is not allowed to tell groups what to think."
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Byeesha Owens is on the mic as this Wednesday’s We Can End AIDS march in Washington approached its first targets, UPS and Wells Fargo. This is what an AIDS enemy looks like as we enter the fourth decade of the epidemic: those who drive policies that drive the epidemic, and those who profit from disease and discrimination.
It’s Owens’s first AIDS march, and it’s sticky and hot in Washington, and by the time we get to the White House, we’ll have been marching for two hours. She’s here with her aunt from New Jersey, who’s been HIV-positive for over twenty years. The tattoos around Owens’s collarbone glisten. With the heat, there’s more bared skin out on the march than inside the climate-controlled convention center that houses the AIDS conference, where the march stepped off.
As the march neared the UPS store, Owens hoisted the mic up and led the hundreds behind her in a chant, and they halt in front of the store, filling the street for several hundred feet in either directon. March organizers from the HIV Prevention Justice Alliance charge UPS for contributing to the AIDS epidemic by funding Congressional opponents of syringe exchange, which evidence has shown to be one of the most effective ways to prevent HIV transmission.
The march continued on to Wells Fargo, where members of Occupy DC took the mic to link Wells Fargo’s investments in private prisons to fueling mass incarceration, and in turn, the drug war that sends many of the 2.2 million Americans behind bars there in the first place. “Wells Fargo is literally invested in locking more people up,” said Laura Thomas of Drug Policy Alliance. When drug users are targeted by law enforcement, even for legally carrying clean syringes, HIV can run unchecked, including in prisons themselves, where incarcerated people have little access to healthcare, and condoms are often prohibited.
Byeesha Owens came today, she said, because HIV affects her family directly. She connected the dots: “It’s wrong that Wells Fargo and UPS don’t support us in finding a way to stop HIV. People are getting locked up for being HIV-positive and it’s wrong.” In thirty-four states, HIV transmission is criminalized, with Florida leading criminal convictions.
Police departments in New York, San Francisco, Los Angeles and Washington are also under strong criticism from human rights groups and sex worker advocates for their routine practices of confiscating condoms and using them as evidence of prostitution. In a report released this month, Human Rights Watch documented cases of police destroying condoms, verbally abusing transgender women they suspect to be sex workers, and demanding sex in exchange for dropping charges. Combined, these cities distribute 50 million condoms each year. Using them to criminalize people who want to protect their health will contribute to the spread of HIV in these communities.
It’s a cycle: the people most vulnerable to HIV—people who sell sex; or people who use drugs; gay, bisexual, and queer men; and transgender people—are also those most likely to be harassed by the police. If you’re already fearful that cops will stop-and-frisk you, carrying clean syringes or condoms might be too much to risk.
As they neared the White House, the march converged with a flock of Robin Hoods surrounding an imposing stone Bank of America branch. They were members of National Nurses United and VOCAL-NY, calling for a Robin Hood tax on financial transactions: as little as a half-percent tax on the kinds of risky transactions between banks that sparked the global economic meltdown. Funds raised would be directed to housing and health care. “As nurses, we see a desperate need for this,” said Robyn Pegues, of National Nurses Union at Manhattan VA. “Medical care, housing—it’s all related. If you don’t have a house, you can’t take care of yourself. So we think this is a good investment for the American people.”
Three more marches converged then at the White House, an estimated 5,000 people who, after a rally in Lafayette Park, form a protective flank as several dozen people stride up to the White House fence, adorning it with red ribbons, condoms, house keys, cash from their own pockets. Mounted US Parks Police rode in, dividing the activists leaving behind these symbols of the solutions to end AIDS, from the press and others who remained off the sidewalk so as not to risk arrest. Thirteen activists then sat, arm to arm, chanting back and forth with the hundreds pushed back by the cops, exchanging verses: “How many more have to die? Act up! Fight back! And occupy!”
After some time and three warnings, parks police in olive drab uniforms, guns on their hips, returned with plastic zip ties to arrest each of the thirteen activists, to cheers.
Julie Davids, one of those arrested and coordinator of the HIV Prevention Justice Alliance, spoke with me shortly after getting out of jail that night. (Those arrested were each charged with failure to obey an order and given a $100 fine.) The multiple marches, she said, reveal “the danger of over-simplifying ‘ending AIDS.’ We cannot disconnect the AIDS crisis from the capitalism crisis. Getting the globe on expensive drugs is not easy—and it’s not enough.”
“It’s evidence of the power of American capitalism to turn anything into a commodity,” said Cleve Jones, longtime gay rights and AIDS activist, who was also the founder of the NAMES Project AIDS Memorial Quilt. We were talking about one of the more shocking things I saw in Washington this week: the Chevron corporate logo, stitched in the center of a panel of the AIDS quilt on display at the conference. Chevron was a major corporate sponsor of the AIDS conference.
Jones is no longer involved with the NAMES Project, though he recalled that even in the early days of the AIDS quilt, corporate logos had appeared on individual panels, in tribute to a loved one’s love for Big Macs, for example. Later, employees of the same company wanted to pay tribute to their co-workers, and made quilt panels with their names and also the name of their workplace. “In my view, if groups of employees want to make quilts honoring their co-workers, I need to accept that, even if it makes me uncomfortable,” said Jones. “I try to be flexible, And I don’t want to be hard-nosed. But I am offended by its exploitation for marketing purposes.”
“This is a meeting very much populated by doctors and drug companies,” Jonathan Cohen, deputy director of the Open Society Public Health Program explained. “It’s a space very much driven by money, and ones ability to get issues on the agenda or influence the agenda is unquestionably proportionate to how much money one has.”
There weren’t nearly enough dollar bills left on the White House lawn to buy a seat at the table at the AIDS conference, then. But there were plenty enough to make that demand clear.
Washington welcomed the International AIDS Conference back to the United States this Sunday, after a twenty-two-year absence due to US policy that barred people living with HIV from entering the country. As most delegates began to queue for the IAC’s opening session, a group of about twenty young women, trans people and men successfully interrupted the opening press conference, wearing green Statue of Liberty crowns, sounding vuvuzelas and chanting “No sex workers? No drug users? No IAC!” The United States still refuses entry to people who sell sex or people who use drugs, groups that are among the most vulnerable to HIV transmission and who have the least access to prevention and treatment resources.
As the protesters filed out, Diane Havlir, conference co-chair, began her remarks again. “We’re here to talk about courage and big ideas,” she told reporters, as bursts of vuvuzela and and chants could be heard in the press room again. “All of us at this table will be judged for our actions.”
That judgment dropped well before the conference itself. “Historically, before an international AIDS conference comes to a city, it’s an opportunity for that city to change these discriminatory laws,” said Kelli Dorsey, executive director of Different Avenues. Dorsey was in part responsible for negotiating with the conference organizers to ensure that sex workers and other marginalized groups were represented. “But that didn’t happen here. So we continue to have to demand to be at the table.”
Representative Barbara Lee (D-CA), who worked to lift the HIV travel ban, did speak directly to the challenge issued from these excluded groups. “We need meaningful dialogue with sex workers, with men who have sex with men, with transgender people, with drug users.” She pointed to a bill (HR 6138) she introduced before the House just ahead of the conference, which would end existing US funding bans on programs that support sex workers, expand condom access in prisons and call for a review of laws that criminalize the transmission of HIV. “I don’t know how we will see an end to AIDS in our lifetime, but to do so, we must include those communities.”
Talk of ending the epidemic dominates the conference this year, with Ambassador Mark Dybul, who headed the AIDS response under President George W. Bush, claiming at the opening ceremony that “what was unthinkable just three years ago is now in sight: an HIV-free generation.” Secretary of State Hilary Clinton, who spoke Monday at the conference, pledged her support for an “AIDS-free generation,” along with $150 million in US funds.
Scientific breakthroughs in prevention and treatment have made this possible: in many regions of the world, fewer people are becoming infected, and fewer people are dying. But science alone won’t end this epidemic. “You can’t medicalize and pharmaceuticalize your way out of AIDS,” said Allan Clear, executive director of the Harm Reduction Coalition. “Doctors may provide pills, but if the economic and social environment in which people live doesn’t improve, we can’t end the the AIDS crisis.”
It’s a two-way street: violence, poverty and discrimination make people vulnerable to HIV, and also contribute to their marginalization within the AIDS prevention community itself, where they must fight not just the epidemic but for a place at the table. Phil Wilson, president of the Black AIDS Institute, speaking before a small gathering in the Global Village after his opening plenary, said it’s not enough, for example, for those conducting clinical trials to appeal to African-Americans to join them. “We need our people involved in doing the research, in reviewing the grants, in writing about these issues in the media.”
Where is the space for that community leadership to be recognized? Not on the main stages of the conference, where “vulnerable populations” may be mentioned, but not honored. The rote repetition—listing off “sex workers, drug users, men who have sex with men” and sometimes, though rarely, “transgender people,” as if ticking check-boxes on a Centers for Disease Control form—becomes tokenizing, even numbing, when not matched with a commitment to making space for these groups to shape the AIDS agenda. There is an enormous difference between being spoken of as someone to be protected from the epidemic, and being given equal space as a leader who is essential to ending the epidemic.
Leaving the opening plenary on Sunday, where the president of the World Bank, Jim Yong Kim, shouted out “ACT UP” and UNAIDS executive director Michel Sidibé reminded the room how they are “indebted to the brave Americans who birthed the AIDS movement,” delegates passed portions of the AIDS quilt pinned to the wall. Some squares are faded. Death dates go back to the early 1980s. There’s glitter and prayer and anger. They also feel dated, maybe mercifully so. One of the only new squares, shockingly, bears the Chevron corporate logo.
The quilt and the activists—will these become relics, something to be moved on from, as AIDS becomes history, too? Chevron might feel comfortable enough now with the disease to put their mark on the AIDS quilt, but comfort hasn’t won people much against AIDS.
Can activists gathering in Washington, DC, for the International AIDS Conference get Obama and the world to listen?
Starting this Sunday in Washington, an estimated 20,000 people will convene to “turn the tide” of the AIDS pandemic, at the International AIDS Conference, the largest global gathering devoted to HIV/AIDS. For the first time in twenty-two years, the AIDS conference returns to the United States, thanks in significant part to President Obama’s lifting the HIV travel ban, which had prohibited people living with HIV/AIDS from entering the United States since 1987. Activists are mobilizing in the thousands to ensure that the concerns of people most impacted by HIV/AIDS are not sidelined.
The International AIDS Conference is a bit of a circus, or perhaps multiple rings of competing circuses. High-level policy makers with the power to set the global AIDS agenda, along with drug manufacturers and doctors, join the ranks of community health workers and grassroots activists. On stage and in the hallways, there will be Gateses (Bill and Melinda, whose foundation is a major AIDS funder worldwide), sometimes Clintons and, this year, Bushes (Laura and W.). There are pleasant swarms of consultants and wonks, bright banners and loud marches. Walking through the Global Village, the free satellite conference set up alongside the pricey formal conference, delegates are as likely to find sex educators demonstrating receptive (sometimes called female) condoms as they are to cross paths with United Nations staff. In a sense, all are equal in this space, but just for one week every two years, and even then, not really.
To begin with, far too few people affected by HIV/AIDS will ever make it the conference. Their absence means all the talk of new drugs, new funding and new policy will be disconnected from the experience of those living with HIV/AIDS. Though it’s now possible for people living with HIV/AIDS to legally visit the United States, two of the key communities recognized by UNAIDS as most impacted by HIV/AIDS are still categorically denied entrance to the United States: sex workers and drug users.
In bringing the conference to the United States, said Jonathan Cohen, deputy director of the Open Society Public Health Program, “many, many people saw an opportunity, from a domestic HIV point of view, and from a point of view of maintaining the extensive bipartisan support for HIV funding. But one got the distinct sense that the optimism and sense of opportunity that accompanied the decision to have the conference in Washington vastly overwhelmed any ethical qualms about systemically excluding sex workers and drug users.”
“I dreamed of coming to Washington to speak at AIDS 2012,” wrote Irina Teplinskaya, an advocate for the health and human rights of drug users, who is currently living in the Ukraine. “I had a message to deliver to those who have the financial and political means to turn the tide of the epidemic. I wanted to speak up because Eastern Europe and Central Asia (EECA)—the region where I live—is the only region in the world where HIV rates continue to rise while available resources for HIV prevention continue to shrink.”
Teplinskaya will not be able to share her message. Her absence, along with that of countless others working in harm reduction and HIV prevention, isn’t just about the loss of their voices. “To host a major conference on AIDS in a country which turns away those most exposed to the virus,” she concludes, “is to show contempt and disrespect to the millions of people whose lives were lost to AIDS. HIV will claim more lives next year, because this year we won’t be heard and we won’t be helped.”
For sex workers, the ban serves to support “layers of discrimination,” said Cheryl Overs, a member of the technical advisory group on the Global Commission on HIV and the Law. Overs is also the founder of a sex worker organization in Melbourne, Australia, which pioneered harm reduction, rights advocacy and peer education in the early eighties. “These kinds of discrimination have a way of enabling other kinds of discrimination. It reinforces the views of people who think that including the views of sex workers is optional, and that’s actually most HIV programs in the world.”
Overs herself has been turned away from entering the United States, when in 2011 she attempted to come to New York for the first meeting of the Global Commission on which she serves. “It’s an extreme irony – it doesn’t matter how empowered you are or how educated you are. I was a senior research fellow, with a first-world passport and an invitation to an extremely high-level UN meeting. It shows you how far-reaching this stigma and discrimination is.”
The travel ban is rooted in stigma and discrimination, but it also drives dangerous policies that threaten the health and rights of already marginalized communities. “I see the travel ban as the tip of the iceberg of criminalization,” said Jonathan Cohen of Open Society Foundations. In a report linking criminalization and HIV released this week, the Global Commission on HIV and the Law advocates an end to the multiple forms of criminalization that target sex workers and drug users, as well as men who have sex with men. That includes rolling back laws against prostitution, drug use and sodomy and a host of other policies that they identify as fostering inequity that makes people vulnerable to HIV. “Punitive laws, discriminatory and brutal policing and denial of access to justice for people with and at risk of acquiring HIV,” they stated, “are fueling the epidemic.”
This is the tide that is turning: from locating the crisis of AIDS in individual “risk behaviors” to intersecting and systemic forms of inequality. Global networks of men who have sex with men, sex workers, transgender people and people living with HIV further hope to drive this issue at the AIDS conference, in a newly issued set of principles called The Carr Doctrine. They urge that people working to end the pandemic “recognize that HIV is not just a public health issue, but rather a symptom of underlying societal inequities and injustices.”
The Doctrine closes, “HIV is a human rights issue—we all have a right-to-be.” But will those most affected by HIV/AIDS, through violence and ignorance, through a divestment of resources in their communities that predates HIV—will they have the right to be or to be heard in Washington? Or will they be only spoken for?