People have always bought and sold sex, sometimes risking shame or punishment. But these days, simply helping a sex worker can have costly legal and financial consequences. Under the U.S.’s flagship international aid program on HIV and AIDS, an organization that gives out free condoms at a brothel, for example, might be deemed in violation of the program’s anti-prostitution policy, and, as a result, risk losing public funding. Public-health groups see this not only as an impediment on reaching the people most in need but as a threat to their freedom of speech. After several years of legal battles, the fight against the policy has now reached the Supreme Court, which is set to rule in late June on whether Washington can financially penalize organizations that defy its official stance against the sex trade.
The rule, known as the anti-prostitution “loyalty oath,” was enacted in 2003 as part of the President’s Emergency Plan for AIDS Relief (PEPFAR), a major Bush-era public-health initiative that has supported HIV/AIDS prevention and treatment. It states that “no funds … may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.” Essentially, funding for nongovernment organizations (NGOs) is conditioned on their public disavowal of prostitution and any activity that might be deemed supportive of sex work, due to “the psychological and physical risks” associated with it. Between the lines lies an ideological minefield stretching from Capitol Hill to Calcutta, and in deciding the case, the Supreme Court must weigh freedom of speech against the power of lawmakers to inject moral dictates into funding streams.
The plaintiffs, including U.S.-based reproductive-health groups Pathfinder International and Alliance for Open Society International, say the policy is a brazen attempt to control the speech and activities of providers of critical services, from HIV/AIDS drop-in centers to empowerment programs that help sex workers advocate for their rights. Though the anti-prostitution policy has been held up in litigation for the past several years, both U.S.-based and foreign NGOs say their work—not just HIV/AIDS programs but all operations, since the conditions apply to an entire organization—is impeded by an ideological mandate that ignores the complex factors that draw people into sex work. Imposing a political oath, they say, contradicts the health-focused mission of agencies that, for instance, shelter homeless sex workers in Bangladesh or defend them from police abuse in Nigeria.
The Supreme Court is reviewing a 2011 decision by the Second Circuit Court of Appeals, which declared that the pledge effectively “compels recipients to espouse the government’s viewpoint” and thus violates free-speech rights. Though the oath has been condemned as a vestige of George W. Bush’s conservatism, the Obama administration still defends the policy’s constitutionality and has attempted to issue guidelines for the policy.
The oath has pressured aid groups, in their day-to-day work with poor and marginalized populations, to pillory the same clients they’re trying to protect. Brook Baker, a policy analyst with the HIV/AIDS-focused advocacy group Health Global Access Project, says that because fighting the epidemic by definition requires reaching those at the highest risk for health problems, violence, and poverty, “we work with people in vulnerable populations, sex workers, men who have sex with men, injecting drug users, all of which are marginalized populations, legal outsiders, in many contexts criminalized. And instead of being stigmatized and discriminated against … these are groups that actually need enhanced access to services and who need dignity and social support to reduce their risks and maximize their [and their partners’] well-being.”
Although PEPFAR, which has over the past decade supported HIV/AIDS treatment and prevention for millions worldwide, seems based on a relatively uncontroversial mission, it fuels the foreign proxy battles of Washington’s culture wars. The anti-prostitution oath reflects a long-running controversy in the humanitarian community over the ethics of sex work. Conservatives claim selling sex is an inherently exploitative practice. But pro-sex-worker advocates say treating it as real work and respecting the rights of both trafficking victims and voluntary sex workers helps decrease abuse and improve public-health outcomes. Many global health experts, including the Joint United Nations Programme on HIV/AIDS, recommend a rights-based approach toward sex work, focused on interventions based on decriminalizing sex workers and affirming their civil and labor rights.
By contrast, advocates say that categorically opposing prostitution only makes sex workers more vulnerable, not only to sexually transmitted diseases but also to gender-based violence and labor exploitation. Though laws regulating or criminalizing sex work vary widely around the world, sex workers everywhere routinely face violence and discrimination from customers, bosses, and police.
To Baker, the underlying fallacy of the oath is that it is “essentially equating prostitution with trafficking.” He explains that while no service provider approves of sex trafficking—that is, coercing people into sex work—“that isn’t to say that the best public-health solution and human-rights solution for people who are engaged in sex work [would be to dictate] that no one can work with them who isn’t really out in public to condemn them and the work they do.”
Since the pending legal case hinges on the question of the constitutional rights of U.S.-based organizations, even if the oath is struck down, the provision could continue to affect groups in other countries that fall outside of First Amendment protections. The PEPFAR policy technically blocks grantees from supporting any “affiliated organization that engages in activities inconsistent with the recipient’s opposition to prostitution and sex trafficking,” which could affect local partners and sub-grantees of larger international organizations. In Baker’s view, “This oath is problematic not just because it affects U.S. citizens … it’s also a question of whether hypermoralism by the U.S. should be exported and imposed on other partners, who are also trying to serve those same marginalized populations.”
In addition to anti-prostitution campaigns, right-wing ideologies have colored a range of U.S.-led humanitarian initiatives. The Bush administration’s so-called global gag rule attempted to block health workers in aid-receiving countries from discussing abortion with clients (the Obama administration later repealed the policy amid outcry from reproductive-rights groups). The progressive think tank Political Research Associates has documented numerous conservative-led aid campaigns, including the promotion of church-supported anti-gay legislation in Uganda and “chastity” programs in South African schools. These initiatives parallel domestic programs such as “abstinence only” sexuality education in U.S. schools, but while domestic initiatives can be challenged on constitutional grounds, humanitarian aid offers an uncharted frontier for insinuating reactionary agendas into international public-health policy.
Though the direct impacts of the oath are difficult to measure, thanks in large part to legal confusion, an analysis published in the Journal of the International AIDS Society describes case stories of organizations that have seen their operations disrupted or chilled by the anti-prostitution restrictions. In one case story, a small community-based agency that received USAID funds as a subgrantee of another donor ultimately stopped publicizing its assistance to sex workers, despite its popular and effective outreach program, due to confusion over how to comply and to “lack of guidance about what could be construed as ‘promoting prostitution.’”
Meena Seshu, director of Sangram, an advocacy project for sex workers’ health and rights based in Maharashtra, India, says the pledge contradicts Sangram’s core principles—and even contradicts the rights-focused approach to sex workers endorsed by Indian health authorities. “We work to promote the health and human rights of those in sex work,” Seshu says. “This does not mean we promote trafficking—just as we fight against HIV, not against people with HIV. … Are we now supposed to undo decades of result-oriented community-based work just because the U.S. can’t understand the difference between promoting health and human rights and promoting prostitution?”
At the oral arguments last month, the Supreme Court justices, both liberal and conservative, seemed receptive to the plaintiffs’ arguments that the oath was an excessive political intrusion that could impede the work of groups dealing with complex social problems and human needs. Advocates see the case as putting the oath’s ideological disconnect from reality on trial. Serra Sippel, president of the Center for Health and Gender Equity, says, “The Supreme Court is being asked to give public-health organizations and experts—who know better than legislators what it takes to fight HIV—the freedom they need to do their jobs effectively.”
Yet even if the courts strike down the policy, it’s unclear whether foreign-based NGOs would continue to be affected by the law. The drop-in centers in India and Thailand, the outreach workers who embrace sex workers when other institutions turn them away, may still find their financial help conditioned on support for a U.S.-imposed anti-prostitution agenda. Their lack of institutional autonomy reflects not just the legal quirks of aid legislation but a deeper gap in the ability of grassroots groups in the global South to respond to social crises on their own terms, unfettered by Washington’s moral crusades. For those activists, free speech is the freedom to save lives, and it is always in short supply.