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U.S.-Based Aid Groups Receive Ultimatum: Pledge Your Opposition to Prostitution and Sex Trafficking or Do Without Federal Funds

The Bush Administration now requires U.S.-based non-governmental organizations (NGOs) to adopt a policy position opposing prostitution as a condition for receiving federal funds to conduct international HIV/AIDS programs.1 This requirement was previously limited to foreign NGOs receiving U.S. aid, and the policy-shift, affecting approximately $2.2 billion in AIDS grants and contracts this year alone, has drawn criticism for possible free speech violations and threatens to impede critical public health work.

The anti-prostitution pledge requirement was first mandated in the 2003 Global AIDS Act, the authorizing legislation for the President's Emergency Plan for AIDS Relief (PEPFAR). PEPFAR is the Bush Administration's five-year strategy to fight global HIV/AIDS through education, research, prevention, treatment, and care.2 Primarily, it is funneling money to 15 of the world's most afflicted countries, but PEPFAR is also the guiding policy for all U.S. HIV/AIDS-related foreign assistance.3

The Act contains two restrictions regarding prostitution. The first restriction prohibits funds from being spent on activities advocating for the legalization or practice of prostitution and sex trafficking. This restriction, however, does not technically prohibit the provision of health care to sex workers.4 The second restriction prohibits the use of funding to provide assistance to any organization that does not have a policy opposing prostitution and sex trafficking.5 Although the U.S. Agency for International Development (USAID) and the Department of Health and Human Services (HHS) have released guidelines for implementation of this pledge requirement, they have neither defined the phrase “opposing prostitution” nor described permissible and impermissible activities.6

To ensure that the pledge requirement is implemented, the U.S. House of Representatives recently passed an amendment to the Foreign Relations Authorization Act, Fiscal Years 2006 and 2007 requiring the State Department to audit NGO compliance. First offered by Representative Steve King (R-IA) and then modified by Representative Chris Smith (R-NJ), the amendment requires that the State Department submit a report to Congress which 1) identifies grant recipients, 2) identifies the date upon which the recipient received funding, 3) identifies the date upon which the recipient filed a statement certifying the pledge, and 4) describes its plan to audit compliance. This report is due within 90 days of enactment.7

Requiring Pledge May Compromise Free Speech

In a recent report, New York University School of Law's Brennan Center for Justice suggests that the pledge requirement violates free speech as guaranteed by the First Amendment. The report concluded that compelling international aid organizations to endorse the Bush Administration's viewpoint by certifying that they “oppose prostitution” as a condition of continued participation in foreign aid programs is a violation of free speech. The report also explained that not allowing programs that receive foreign aid dollars to raise or spend private dollars to allocate policies or carry out programs that the Bush Administration opposes runs afoul of established constitutional law.8

In fact, the government initially only required foreign NGOs to oppose prostitution, because it felt such a pledge would likely be an unconstitutional violation of free speech if applied to domestic groups.9 In 2004, however, lawyers for the government gave it the all-clear to implement the pledge requirement in the U.S.10 Now, U.S. groups conducting HIV/AIDS programs overseas fall under the Act's conditions.11

Pledge May Make HIV/AIDS Work Even Harder

The anti-prostitution pledge requirement not only potentially violates the right to free speech but also poses a barrier to effective HIV-prevention work. Reaching sex workers with critical HIV-prevention information, condoms, and care is a critical component of stopping the HIV/AIDS pandemic. Organizations providing this necessary work, however, may not want to adopt a policy that stigmatizes the very community with which they work. The pledge's vague implementation guidelines has left other organizations wary to act. Some organizations do not want to take a stance one way or the other on sex work, and others worry that by signing the pledge, it is placing itself at risk for losing funding should the government later decide that it has engaged in activities deemed to be inconsistent with the pledge.12

According to Jodi Jacobson, executive director of the Center for Health and Gender Equality, the policy is “hugely problematic from the standpoint of public health alone. It goes against the entire grain of public health principles in not judging the people you are trying to reach.”13 Terri Bartlett, vice president for public policy at Population Action International, agrees, “we want to build trust and reduce stigma . . . . This policy flies in the fact of what we know works.”14

NGOs are not the only entities disappointed in the rule. In May, the government of Brazil refused approximately $40 million in HIV/AIDS-related aid because it had determined that the pledge would interfere with its approach to HIV prevention, which includes providing open and accepting assistance to sex workers.15 Pedro Chequer, the director of Brazil 's HIV/AIDS program, said that Brazil desired to “preserve its autonomy on issues related to national policies on HIV/AIDS as well as ethical and human rights principles.” He stated further, “[accepting such funds] would be entirely in contradiction with Brazilian guidelines for a program that has been working very well for years. We are providing condoms, and doing a lot of prevention work with sex workers, and the rate of infection has stabilized and dropped since the 1980s.” Since U.S. grants represent only a small portion of the money Brazil spends on its HIV/AIDS programs, Chequer said the Brazilian government will increase spending on the programs to make up for the lost funding.16

“The importance of the Brazilian government's decision to pass on U.S. funding cannot be overstated,” said William Smith, vice president for public policy at SIECUS. “The Bush Administration's requirement that groups receiving funding condemn commercial sex work clearly hinders the international community's efforts to fight HIV/AIDS,” he continued.

For more information on the pledge and the Global Gag rule, please see Ominous Convergence: Sex Trafficking, Prostitution and international Family Planning.

For more information on advocacy efforts surrounding the pledge, please visit the Center for Health and Gender Equity website at http://www.genderhealth.org/ .

References

  1. The Brennan Center for Justice at NYU School of Law, “Constitutionality of Anti-Prostitution Pledge in the AIDS Act,” Memorandum published on 13 June 2005, accessed 20 July 2005, <www.nswp.org> View Article.
  2. President's Emergency Plan for AIDS Relief: The U.S. Five-Year Strategy to Fight Global HIV/AIDS , February 23, 2004, accessed 20 July 2005, <www.state.gov> View Article. For more information on PEPFAR, please see Evidence vs. Ideology in HIV Prevention: The President's Emergency Plan for AIDS Relief , SIECUS (2004), accessed 20 July 2005, <www.siecus.org> View Article.
  3. The 15 PEPFAR focus countries are Botswana, Cote d'Ivoire, Ethiopia, Guyana, Haiti, Kenya, Mozambique, Namibia, Nigeria, Rwanda, South Africa, Tanzania, Uganda, Vietnam, and Zambia.
  4. 22 U.S.C.A. § 7601 et seq. (2003).
  5. 22 U.S.C.A. § 7601 et seq. (2003).
  6. “Constitutionality of Anti-Prostitution Pledge in the AIDS Act.”
  7. H.AH.AMDT.473 (A020) Amendment to H.R. 2601, offered by Mr. Smith of New Jersey , 109Cong. (2005).
  8. “Constitutionality of Anti-Prostitution Pledge in the AIDS Act.”
  9. Ibid.
  10. “Government Places New Restrictions on AIDS Funding,” Associated Press , 8 July 2005, accessed 20 July 2005, <www.cnn.com> View Article.
  11. Ibid.
  12. “Constitutionality of Anti-Prostitution Pledge in the AIDS Act.”
  13. Sarah Boseley & Suzanne Goldenberg, “ Brazil spurns US terms for AIDS help,” Guardian , 4 May 2005, accessed 20 July 2005, <www.guardian.co.uk> View Article.
  14. “Government Places New Restrictions on AIDS Funding.”
  15. “Bush Administration to Require U.S. AIDS Groups Take Pledge Opposing Commercial Sex Work To Gain Funding,” The Henry J. Kaiser Family Foundation , 2 May 2005, accessed 20 July 2005, <www.kaisernetwork.org> View Article.
  16. Ibid.

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