DOJ Drops Appeal of Injunction Against "Prostitution Pledge"

This week, the U.S. Department of Justice dropped its appeal of a court injunction prohibiting enforcement of the "anti prostitution pledge" under U.S. Global AIDS Policy.
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During a press briefing at the International AIDS Conference in Toronto in 2006, a young Bangladeshi woman invited by the organization for which I was then working told the story of losing access to the health clinic/drop-in centers she and other street-based sex workers frequently visited to get information and health services, learn new skills, escape violence and bring their children to use a toilet or to get a short respite from the streets.

The reason? Funding was cut by the umbrella organization supporting these drop-in centers for fear they might be seen as violating U.S. law against "promoting prositution" because they served the basic needs of sex workers, among society's most vulnerable groups. As a result, more than 20 centers in some of the poorest urban areas of Bangladesh disappeared due to ideological restrictions against HIV prevention efforts supported by US politicians for political gain.

Today, the public health community may be one step closer to undoing this onerous policy.

This week, the U.S. Department of Justice (DOJ) dropped its appeal of a court injunction prohibiting enforcement of the "anti prostitution pledge" under U.S. Global AIDS Policy. The injunction was sought in a 2005 lawsuit filed by the Alliance for Open Society
International (AOSI)
, the Open Society Institute, and Pathfinder
against the U.S. Agency for International Development, the Department of Health and Human Services (HHS), and the Centers for Disease Control
and Prevention's
Global AIDS Program. The court awarded the injunction in 2006.

The Bush Administration filed an appeal two weeks
before the original deadline and just a week before Bush left office. At the same time, according to one source close to the case who spoke on background, "the Bush Administration issued a final HHS regulation implementing the pledge that was so draconian that it was no better than
where we started before the injunction."

The AOSI-Pathfinder lawsuit contested the constitutionality of the policy based on violations of freedom of speech, and the right to be free of compelled speech or of forced agreement with a government position. The policy has been particularly troubling because the Bush Administration interpretation covered the use not only of U.S. government funds, but of private funds as well. The injunction covered a large group of organizations, including the 300 members of the Global Health Council and all the members of InterAction, but did not release foreign non-governmental organizations working in countries affected by HIV from the pledge. An injunction in a separate lawsuit filed by DKT International was not granted.

The pledge is one of three restrictions in global AIDS policy, along with requirements for funding abstinence-only-until-marriage programs and banning funding for syringe exchange, seen by many as the reason why US global AIDS programs have largely failed to stem the spread of HIV infections.

In withdrawing the appeal "without prejudice," the Obama DOJ retains the right to resubmit an appeal by January 8th, 2010. Many advocates are hopeful that the Administration will use the intervening time to closely review the negative implications of this policy for HIV prevention work in the field.

The pledge, originally passed as part of the US Global AIDS, Tuberculosis and Malaria Act of 2003 (otherwise known as the President's Emergency Plan for AIDS Relief or PEPFAR), placed into law a requirement that public health groups receiving U.S. funds pledge
their "opposition to prostitution"
in order to continue their
life-saving HIV prevention work. The policy was supported by the Bush Administration and many conservative Republicans in Congress. It was re-inserted into the law during PEPFAR reauthorization of 2008 as part of a "deal" brokered with the U.S. Council of Catholic Bishops, evangelical fundamentalist groups and some anti-trafficking groups to ensure support among conservatives for higher levels of funding for global AIDS programs.

Under this policy, according to AOSI:

Recipients of U.S. aid are restricted in how they use even their
private funds, impeding their ability to deliver effective prevention
services to those most vulnerable to HIV/AIDS.

In reviewing the global public health data on HIV prevention and marginalized communities, such as sex workers, Johns Hopkins University School of Public Health Researchers Nicole Franck Masenior and Chris Beyrer wrote that "the breadth of the requirement and its application to privately funded activities...led to legal challenge of its constitutionality." They continued:

Requirements for grantees were based on [an] explicit link between HIV
prevention and the eradication of prostitution. In order to receive
AIDS funds from the US, all grantees must have (1) a policy explicitly
opposing prostitution and sex trafficking and (2) certification of
compliance with the "Prohibition on the Promotion and Advocacy of the
Legalization or Practice of Prostitution or Sex Trafficking," which
applies to all organization activities, including those with funding
from private grants.

The policy has been widely criticized by the public health and human rights communities in the United States and abroad. Non-governmental organizations in Brazil, renowned for their success in reducing HIV among sex workers, rejected US funding in protest against these restrictions.

The policy has been problematic from the start. Guidance written by the Bush Administration intended to make the policy operational left vague the definition of what constitutes "promoting prostitution" and what specific activities would violate the law. No direction was ever given on specifically how to monitor and enforce the law, except for the signing of a "pledge," and the use of health workers as informants on their most vulnerable clients. The vagueness of the law and the fear that violating it unknowingly would lead to loss of funding caused many groups to self-censor information and put a halt to otherwise successful HIV prevention activities. "Groups have been concerned and confused," said one advocate, "and this contributes to self-censorship."

The policy also conflated all sex work with sex trafficking, which simultanesouly undermined public health efforts while allowing groups like Concerned Women for America to apply for and obtain federal funding to promote programs based on ideology rather than evidence. Moreover, it led to the creation of linkages in law that were not recognized by either public health or human rights practitioners.

In their review paper, Masenior and Beyrer wrote that:

One of our key findings was thatthe merging of the terms "prostitution" and "sex trafficking" in theGlobal AIDS Act is not accepted as standard language or practice by thescientific literature on HIV/AIDS or by international agencies with HIVprevention programs.Trafficking in persons for any purpose is consistently seen as acriminal and human rights offense, and the subset of human traffickingrelated specifically to the sex industry is universally seen as amongthe most grievous of trafficking-related crimes.While the law calls for opposing sex trafficking, we could find noentity that did not already oppose it. The same holds true for any formof prostitution involving children or minors--this was universallyacknowledged as a crime and a human rights violation before the policy.
In addition, they continued:
Many organizations disagree with the Act's equation of all forms ofprostitution with sex trafficking. The term prostitution itself iscontroversial--most groups working with persons who sell or trade sexfor money use the terms "sex work" and "sex worker," rather than"prostitute," which is widely held to be stigmatizing and pejorative.

The core debate is that for many stakeholders, the category "sex
workers" includes consenting adults who sell sex of their own volition,
who are not trafficking victims, and who have called for recognition of
their rights as workers, in settings that include Bangladesh, India,
Thailand, Brazil, and the Dominican Republic.
A substantial body of peer-reviewed published studies suggests that the
empowerment, organization, and unionization of sex workers can be an
effective HIV prevention strategy and can reduce the other harms
associated with sex work, including violence, police harassment,
unwanted pregnancy, and the number of underage sex workers.
While sex work may be exploitative, and is illegal in many
jurisdictions, sex worker advocates and HIV prevention program leaders
generally concur that sex workers themselves need services, protection,
peer outreach, and support from health professionals to reduce their
risk of HIV infection.
While the language of the pledge does not mandate any specific changes
in programs or services for sex workers, it does place funding
restrictions on those programs with explicit policies calling for
decriminalization or legalization of sex work.

Advocates interviewed for this article (several on background) consistently expressed the hope that the Obama Administration would take the time before January 8th, 2010 to finish a review and revision of the policy now underway.

"We certainly hope that the Obama Administration will work to repeal the policy altogether," said one advocate. "But we know they are reviewing it. Right now, all options are on the table. What we do not want is for the Administration to 'split the baby' and continue to enforce the policy in some way against one set of groups and more harshly against another."

Another advocate intimately involved in the process, also speaking on background, stated:

We've been assured there are very senior
people reviewing this policy, but it is a complex process because there are so many agencies involved...USAID, CDC, HHS, and the Office of the Global AIDS Coordinator, as well as the DOJ. We know their intention is to deal with the
policy questions beyond the litigation," said another expert on the issue. "But trying to decide what to do with foreign NGOs as opposed to US NGOS presents a trickier questions because of court rulings that constitutional protections do not extend to foreign NGOs.

Lawyers and advocates fighting to change the policy note that while the Administration has said it would release new guidance before the court deadline, it may not engage in formal negotiations with the public health community on what the new guidance should look like.

"It's already such a complicated process," said the advocate, "outside involvement might complicate internal decision-making, and slow things down. But [the community] has put the Administration on notice that if they craft
their own solution and it is not acceptable, the litigation will continue. They
can't take our support for granted."

But "on the positive side, we are finally on the agenda. Given the mess inherited by this Administration on so many issues, we can't blame them for not getting to this more quickly."

Melissa Ditmore, a longtime researcher on sex work, advocate for the rights of sex workers, and co-producer of Taking the Pledge stated that:

Lack of clarity in the guidance has enabled organizations to discriminate
against sex workers or people they just did not want to work with.
While the policy included a non-discrimination clause, in fact lack of enforcement of this clause has meant that sex workers have indeed lost access to essential services. Enforcement of good guidance will be just as important as thaving good guidance to being with. On the other hand, certain organizations were targeted for harrassment if they were on the radar screen of conservative Congressman. It has been destructive all around.

On the differential treatment of U.S. and foreign NGOs, she continued:

In a way, the solution is simple. If the Administration issues guidance that uses evidence-based approaches
to addressing public health and human rights problems, it then makes sense to use the same standards for all organizations, regardless
of whether they are based in the US or abroad and regardless of whether
they participated in the Pathfinder-AOSI lawsuit.

"At the end of the day," she continued, "we need to get it out of PEPFAR either before or by
2011. Otherwise there will simply continue to be new lawsuits and what
is worse, a poor response to stopping the spread of HIV no matter the
billions being spent."

"This is not," she concludes, "The legacy Obama wants."

Originally posted on - News, commentary and community for reproductive health and justice.

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