'Anti-Prostitution Pledge' Ruling Corrects Misguided, Harmful Policy

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Kristy Kade, Pathfinder's Associate Director of Advocacy and Public Policy, argues that the recent Second Circuit ruling that the US cannot withhold HIV/AIDS funding to organizations based on their stance on prostitution corrects a policy that tied the hands of organizations working to stop the spread of HIV.

I expect few Americans took notice when the US Court of Appeals for the Second Circuit recently ruled in a case brought by Pathfinder International and Alliance for Open Society International, finding that a federal statute requiring public health groups to oppose prostitution in order to receive funding for their HIV and AIDS work overseas was unconstitutional.

This oversight is not surprising. Little attention was paid when the restriction was first applied to US-based groups in 2005, despite objections from NGOs that such a policy would severely undermine their free speech, as well as efforts to prevent the spread of HIV worldwide—the stated goal of the US Global AIDS program. Again, little outrage was shown in 2010 when, following a temporary suspension of the US appeal, the Obama administration decided to continue to defend the policy in court. While fundamentally about sex, the issue is hardly sexy, and primarily impacts those individuals few rise to defend—the poorest of the poor, mostly women, often young, and on the absolute margins of society—sex workers.

The policy, commonly known as the "anti-prostitution pledge," requires any organization—American or foreign—that receives federal funding to fight HIV and AIDS abroad to adopt a formal position condemning prostitution and trafficking. I know of no one in the NGO community who does not abhor and oppose trafficking; it is among the most severe of all human rights abuses. The pledge's conflation of sex work and trafficking, however, ignores the realities that in many developing countries. Individuals sell sex for their livelihood—food, shelter, childcare—and these individuals require and deserve access to health and social services, including HIV prevention and care.

Pathfinder has worked on the front lines of this epidemic for more than 25 years. From this experience, we know that organizing and empowering sex workers to advocate for their rights can be an effective HIV prevention strategy, and can reduce other harms associated with sex work, including violence and exploitation.Pathfinder has worked on the front lines of this epidemic for more than 25 years. From this experience, we know that organizing and empowering sex workers to advocate for their rights can be an effective HIV prevention strategy, and can reduce other harms associated with sex work, including violence and exploitation. We believe we have a moral obligation to provide evidence-based, lifesaving services. We have no desire to judge, condemn or further stigmatize the very individuals we are trying to help, driving them further underground, limiting their ability to access healthcare, provide for their families or eventually leave the industry. Does this mean Pathfinder supports or promotes prostitution? Of course not. Does the US government think so? That is another matter entirely.

As a result of this misguided policy, there has been a tremendous loss of respect overseas for American foreign policy objectives purporting to promote democracy. On the one hand, the US government asserts free speech as essential for democracy and, on the other, restricts speech, in this case, presumably because the subject of sex is involved. Most troubling, the pledge restricts what organizations can do and say with not only federal funds, but with their own private funds as well.

Trust that it was not an easy decision for Pathfinder to take its largest funder, the US government, to court. However, we strongly believe vital principles were, and continue to be, at stake. Private organizations cannot be told what to think or believe; they cannot be compelled to espouse a government mandated position. They must be free to challenge the status quo, to speak out on the behalf of the vulnerable and disenfranchised. Otherwise the value of civil society within a democracy is completely undermined. If the anti-prostitution pledge were allowed to stand, it opens a dangerous door to further ideological restrictions, subjecting private organizations to the whims of politicians even when public funds are not at issue.

Unfortunately, the right of US organizations to operate without undue government interference is not the only issue at hand. Our partner organizations in developing countries, who are the main implementers of HIV and AIDS-related services, are not protected by the ruling. They will still be made subject to the pledge. In fact, the US has a long history of exporting unconstitutional policies abroad—often policies that Americans are not even aware of—as a means of appeasing a few, loud ideologues, whose voices tend to drown out pragmatic and scientific best practices. These acts of political expediency come at the expense of people's lives.

Americans need to start paying attention. Casualties of our culture wars are piling up in countries across the globe. The scope of the epidemic remains immense; more than 33 million people are living with HIV worldwide. Even as the US admirably works to provide medicine and treatment, we completely undermine our efforts by tying the hands of health workers and refusing to prioritize evidence-based prevention efforts. In fact, for every two people we provide with lifesaving anti-retroviral treatment, five more become newly infected with HIV.

Any organization that works to address the tragedy of HIV and AIDS in less developed countries must confront head on the need to serve sex workers. They are among the most at-risk for contracting and spreading the disease. The reality of the HIV epidemic demands we do all that we can to help all individuals effectively protect themselves from infection, regardless of their race, religion, gender, sexual orientation or occupation. This is not a matter of being pro- or anti-prostitution; it is a matter of being opposed to the spread of HIV.

Kristy Kade is Pathfinder's Associate Director of Advocacy and Public Policy. She serves as Pathfinder's primary liaison to US and global policymakers, including members of Congress, the Department of State, and White House Executive Staff.

You can also find this piece on The Jurist.

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