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Aid Groups Fight Anti-Prostitution 'Oath' on Free Speech Grounds

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One of the few bright spots in the global response to the HIV/AIDS epidemic has been PEPFAR, the United States government's program to fund treatment and prevention for vulnerable populations across the Global South. But several years ago, lawmakers singled out one group of people as less worthy of that care. In fact, aid groups must publicly denounce them--or risk losing U.S. funding.

That's the basic idea behind the "anti-prostitution loyalty oath" embedded in the global AIDS initiative legislation. As a condition of receiving federal funds, organizations must adhere to avaguely worded anti-prostitution pledge, essentially swearing to the government that they do not support or promote prostitution. The extent of this restriction on their work is unclear; the only thing that is clear is that federal health authorities have sought to impose ideological views on aid workers in a way that could undermine both public health and organizations' free speech rights.

The policy has been blocked on constitutional grounds in lower court decisions, but the White House will now take the case to the Supreme Court, which will rule later this year on the question of whether the government can link support for U.S. health organizations to the adoption of certain ideological positions on prostitution.

Though the policy began under the Bush administration, it has remained essentially intact under Obama. According to an analysis by  the Brennan Center, one of the legal advocacy groups involved with the case:

[Current Health and Human Services guidelines mandate] that recipients of [PEPFAR] funds maintain a substantial degree of separation from any "affiliated organization that engages in activities inconsistent with the recipient's opposition to prostitution and sex trafficking . . .," though the regulation fails to define "affiliated organization" or the prohibited activities and sets no firm rules on the degree of separation that will be considered sufficient.

The open-endedness of the policy could pressure organizations not only to censor their own activities with sex workers, but even to avoid partnering with local community groups that might be perceived as "supporting" sex workers. The overall effect would be to hamper relationships between provider and client, and undermine crucial trust between aid workers and the surrounding community. Moreover, the policy perpetuates the pathologization of sex work as a moral blight, rather than a real form of work that deserves equal protections for labor and human rights. That stigma only further criminalizes and alienates sex workers at high risk of HIV/AIDS.

In recent years, the litigation process has effectively suspended the implementation of the oath, but chilling effects have nonetheless been felt. According to a 2008 report by the advocacy group Center for Health and Gender Equity (CHANGE) some groups had lost, or been pressured to forgo, U.S. funds, fearing that working with sex worker populations would violate the policy:

In Bangladesh, sex worker outreach organization Durjoy Nari Shangho lost money when the international NGO that funded them signed the prostitution pledge. Their drop-in center program had been recognized as a UNAIDS "best practice," but has now been cut from 20 centers to just four.

Hazera Bagum, director of the organization, has described the impact this has had:

"Most street sex workers are homeless. They have nowhere to go to sleep, to bathe, or to use the toilet. Durjoy's drop in centers acted like a home for them. They came in and rested, educated themselves and talked to each other about effective HIV prevention.... The monthly condom distribution rate used to be very high, but since the closings, there is less access, so sex workers are not using as many condoms. They distribute fewer every month."

The groups that filed the current lawsuit have argued that the policy coerced the practices of aid providers in ways that potentially restrained their ability to fulfill their public mission.Pathfinder International, which provides reproductive and sexual health services in Latin America, Africa and Asia, argued "it cannot resume, with its private funding, its work with community organizations in Brazil that have sought legal reform of prostitution laws in that country in an effort to help prostitutes avoid exploitation and abuse."

Philip Harvey, head of DKT International, which runs campaigns to promote reproductive health and HIV/AIDS prevention in several countries (and participated in an earlier, unsuccessful legal challenge to the oath), calls the policy a tool of "coerced speech." He tells In These Times, "I believe it is a fundamental right of an org to retain its independent, private character and not to be coerced into creating policies it doesn't wish to create as a condition of receiving funding from the U.S. government. That, I think, is the fundamental issue at stake."

Even if the U.S.-based challengers to the law win at the Supreme Court, the overturning of the policy would only apply to U.S.-based groups. Foreign-based organizations could still be constrained by the anti-prostitution policy in their day-to-day public health work. Serra Sippel, president of CHANGE, tells In These Times that this could create a divide between U.S.-based international groups and the local community groups overseas that they fund (similar to the controversy over restrictions on foreign-aid funding for groups providing abortion-related services).

Under such a scenario, Sippel says, a U.S. organization may be free from having to take the pledge, "but then they have to impose it onto the subgrantees and the folks that they are providing funding for on the ground." As the question of constitutional rights doesn't extend to foreign groups, she adds, "There's one standard for U.S. groups--yes, the Supreme Court may say, you have free speech rights--but the foreign entities do not have free speech.... It's a big injustice. And the question is, how will that impact the work relationships on the ground between the U.S. grantees and the subgrantees."

For now, there is at least hope that the courts will protect the integrity of the programs of U.S.-based groups. But for the global fight against HIV/AIDS, the struggle continues to keep Washington's sexual politics from blocking any health workers' mission to uphold the only pledge that matters: their commitment to healing their communities.

For more information on the anti-prostitution loyalty oath case, go to pledgechallenge.org.

Originally posted at In These Times.