The United States may be a major donor in the struggle against HIV/AIDS, but our money comes with so many strings attached, it's often unclear if we're more interested in solving the problem or promoting our political agenda. Last week, the U.S. Circuit Court of Appeals overturned a ruling that had removed one of those strings, and it's bad news for organizations working to support the health and rights of sex workers—a population that is both highly vulnerable and highly marginalized in the struggle against HIV/AIDS. The ruling, in response to a U.S. government appeal to a lawsuit it lost against DKT International (an international non-profit with family planning and HIV-prevention programs in 11 countries worldwide) last year, upheld a provision that denies U.S. HIV/AIDS money to any U.S.-based or foreign organization that does not have a policy "explicitly opposing prostitution and sex trafficking."
The Circuit Court's ruling reversed a May 2006 decision that had found the so-called "prostitution provision" in violation of the First Amendment, since the provision essentially forces organizations receiving U.S. funding to adopt a policy that is in lockstep with current U.S. government ideology (kind of like the global gag rule). The provision grew out of a series of amendments to the 2003 legislation that established PEPFAR (The President's Emergency Plan for HIV/AIDS Relief), President Bush's much-touted 5-year, $15-billion HIV/AIDS prevention, treatment, and care initiative. Other restrictions included an amendment that required one-third of all prevention funds to support unproven, ineffective "abstinence-until-marriage" programs in high-HIV-prevalence countries in sub-Saharan Africa, and another gave faith-based organizations the right to refuse to share information about condoms, even if they were receiving so-called "comprehensive" funds.
In 2005, when the Bush administration attempted to extend the "prostitution provision"—which originally required only foreign organizations to adopt a policy "explicitly opposing prostitution and sex trafficking"—to U.S.-based organizations, it met with fierce opposition. As hundreds of public health, human rights, faith-based, and community-based organizations with a long track record of work with sex workers (including organizations staffed, founded, and/or run by sex workers themselves) pointed out in a May 2005 letter to President Bush, the provision would severely undermine the effectiveness of their HIV/AIDS prevention work, since it would force them to openly condemn a population they are trying desperately to reach. Numerous organizations worldwide refused to sign the provision on principle, rejecting U.S. funds (including Brazil's National AIDS Commission, which gave back over $40 million in disgust). DKT International and the Open Society Institute/Alliance for Open Society International filed lawsuits against the U.S. government, and both won on the basis that the provision violates free speech.
The Department of Justice appealed in October 2006, arguing that "Congress could reasonably determine that the government's efforts to stamp out prostitution and sex trafficking would be most successful if HIV/AIDS services are provided by organizations that affirmatively oppose two underlying causes of the disease," a statement that makes it clear that the U.S. government's investment in the "prostitution provision" has nothing to do with following best practices on HIV/AIDS prevention, and everything to do with funding organizations that are willing to promote its ideological agenda on issues that go beyond HIV/AIDS.
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Last Tuesday, the Department of Justice won its appeal, and the provision is back. U.S. Circuit Judge Raymond Randolph wrote in his ruling that the provision should stand because the Bush administration is authorized by Congress to assist nongovernmental organizations such as DKT "on such terms and conditions as the president may determine." Too bad that the President's terms and conditions contradict accepted public health practices, but include no concrete steps for addressing the poverty, discrimination, and lack of economic opportunity that often leads women to become sex workers. Then again, that's what you'd expect from a policy crafted around a table in Washington, by a group of people who have little to no interest in what the rest of the world thinks, wants, or even is.