USAID v. AOSI: A Victory for Sex Workers and Feminist Allies

The U.S. Supreme Court case Agency for International Development v. Alliance for the Open Society Institute International is a landmark case for individuals working on alleviating the impact of the HIV epidemic throughout the world. The case found that the "anti prostitution loyalty oath" mandated by USAID compelled U.S.-based organizations to take the government position on prostitution, making it unconstitutional. This oath resulted in the defunding of HIV organizations serving sex workers. Further, it conflates all sex work with trafficking. Projects serving sex workers do not see all sex work as trafficking. Instead, by recognizing the reality that sex work continues regardless of attempts to halt it, they seek to make sex work safer. In practical terms, the effect of this decision means that sex worker organizations around the world will now be able to seek funding from USAID (and USAID contractors) without having to sign a pledge that alienated the very communities they were working with.

The decision is a first step in the right direction. The outcome moves the U.S. government closer towards accomplishing the goal of eradicating HIV by bringing its policies in line with its goals rather than undermining itself. A contradiction that perhaps, most remarkably, was visible on the website of major USAID contractors (with the USAID and President's Emergency Plan for Aids Relief (PEPFAR) logos emblazoned on the website) featured sex worker projects as case studies for HIV interventions that have "helped marginalized groups help one another" and "... prevent exposure to HIV...." while the anti-prostitution loyalty oath was in place.

As with many Supreme Court cases, this case emerges out of much contestation between individuals and organizations with a stake in the outcome. This is certainly true in the case of feminists who have long been divided on the issue of sex work. In the context of HIV, the debate has often been, at the risk of being reductionist, between feminists who seek to utilize HIV funds to enact policies that will work towards the eventual eradication of "prostitution" on one side and on the other side sex worker advocates and their feminist allies who seek to utilize HIV monies for the purposes of making sex work safer. This has pit some feminist groups against sex worker organizations utilizing public health methodologies that have the active support of leading public health agencies and experts including the World Health Organization and the United Nations Joint Programme on HIV/AIDS, as well as researchers and academics. The ongoing nature of this debate became immediately evident with the Coalition Against Trafficking in Women and Equality Now filing a brief in favor of the anti-prostitution loyalty oath, arguing that the requirement be upheld.

The Court's ruling in favor of free speech is a victory for sex worker organizations, public health institutions and activists, and feminist allies against those that promoted the pledge, including (unfortunately) other feminist organizations. It is a victory that provides footing for a broader struggle that is also highly contested: that of the decriminalization of sex work alongside the decriminalization of purchasing sex.

While the issue of criminal law was neither taken up by the Court nor challenged in the case, the pledge also prohibits organizations from promoting or advocating for the "legalization or practice of prostitution or sex trafficking." Although highly contested, the evidence is clear. Where sex work is criminalized -- including the criminalization of purchasing sex -- organizations working on behalf of sex workers cannot effectively deliver condoms, organize sex workers, or implement programs. They cannot effectively implement harm-reduction programs where the laws criminalize the very populations that are being served. And despite the arguments put forward by the feminist supporters of criminalizing clients -- criminalization of both sex work and their clients drives the sex industry underground and enables harassment of sex workers.

The struggle to end the spread of HIV will continue. This decision moves us in the right direction by bringing U.S. regulations in line with its purported goals, supporting the many organizations working with sex workers, and continuing the ongoing struggle to shift laws and regulations to better address the needs of the most vulnerable.