US anti-prostitution gag for HIV work unconstitutional, rules US judge (corrected)

Edwin J. Bernard
Published: 12 May 2006

A United States federal judge has this week issued a preliminary injunction to prevent US government agencies that distribute HIV/AIDS funding from forcing two non-governmental agencies (NGOs) - the Alliance for Open Society International (AOSI) and Pathfinder International - to sign what is known as the "anti-prostitution pledge requirement".

The requirement is one of several global `gags` mandated by the US President's Emergency Plan for AIDS Relief (PEPFAR) to prevent NGOs in receipt of PEPFAR funds from talking about - and addressing - harm-reduction strategies that are politically contentious in the United States, including needle-exchange, abortion and prostitution.

However, this ruling is currently only specific to the two NGOs who took the US government to court, and whilst it may create a precedent that will help other US-based NGOs in the future, it does not affect PEPFAR-mandated anti-prostitution pledge requirements for groups working on the frontlines who are based outside the United States, even though many are partners, or subcontractors, of US NGOs.

The anti-prostitution pledge requirement was first mandated in the 2003 Global AIDS Act, which authorised PEPFAR. The gag was first limited to foreign NGOs receiving US aid but in 2004 government lawyers cleared the way for the pledge requirement to also apply to US NGOs involved in HIV/AIDS programmes overseas.

In May 2005, an open letter to President Bush signed by a 200-strong global group of public health, human rights, faith-based and community-based organisations argued against the gag.

"We strongly support the US government's goals of preventing the spread of HIV and ending trafficking in persons worldwide," the letter began. "We are concerned, however, that US anti-HIV/AIDS and anti-trafficking efforts will be severely undermined by policies restricting the range of interventions that can be used to protect the lives and health of women and men in prostitution, and of trafficked persons, the very groups intended as beneficiaries of US efforts."

Jodi Jacobson, Executive Director of the Center for Health and Gender Equity told a press conference held at the time that "none of these organisations 'promotes' prostitution. Instead, they use advocacy and other strategies to address violence against sex workers, reduce their social isolation, and increase their access to health services."

This week's ruling by Judge Victor Marrero of the US District Court for the Southern District of New York ruled that the pledge requirement violated the First Amendment rights (those guaranteeing freedom of speech) of the two organisations that had taken the government to court by restricting their privately funded speech and by forcing them to adopt the government's viewpoint in order to remain eligible for funds. “The Supreme Court has repeatedly found that speech, or an agreement not to speak, cannot be compelled or coerced as a condition of participation in a government program,” wrote Judge Marrero in his decision.

Daniel Pellegrom, Executive Director of Pathfinder International, one of the NGOs involved in the court case, said that the ruling "enables Pathfinder to continue serving the most vulnerable women in many of the world's poorest nations without impediment."

The ruling was also welcomed by Ricardo Castro, a board member of the Alliance for Open Society (AOSI) International, which had also taken the government to court: "We believe that public health policy should be based on science - not ideology," he said.

Although the court's decision applies only to AOSI and Pathfinder, it may have a broad impact on the other US-based NGOs also forced to sacrifice their privately funded speech in order to receive PEPFAR funds.

However, this decision does not apply to the many subcontractors or subgrantees working on the front lines. In most instances, those actually doing the most cutting-edge work and outreach are the subgrantees working with sex worker populations.

"Evidence from India, Thailand and Cambodia shows that these restrictions have already undermined promising interventions," Alice Miller, Assistant Professor of Clinical Public Health at Columbia University, said in a press release accompanying last year's open letter to President Bush. "In Cambodia, for example, NGOs discontinued plans to provide English-language classes - which could provide a path out of sex work - for fear that they would be seen as 'promoting prostitution.'"

In May 2005, Brazil rejected $40 million in anti-HIV/AIDS grants because of the anti-prostitution pledge requirement. Dr Pedro Chequer, head of Brazil's national AIDS programme, criticised the restriction at the time, noting that it would undermine the very programmes responsible for Brazil's landmark success in reducing the spread of HIV.

Last month, PEPFAR's ideologically-based prevention policy came under fire from a US government watchdog, Congress's Government Accountability Office.

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