Analysis Law and Policy

Supreme Court Strikes Anti-Prostitution Pledge for American Organizations Fighting HIV/AIDS

Jessica Mason Pieklo

The Supreme Court ruled that requiring U.S. organizations fighting HIV/AIDS abroad to take an anti-prostitution pledge violates the First Amendment.

The Supreme Court ruled Thursday that the anti-prostitution loyalty oath (APLO) violates the First Amendment when it is applied to U.S. organizations. The APLO, an amendment to the 2003 President’s Emergency Plan for AIDS Relief (PEPFAR), required non-governmental organizations working to improve global health to adopt an explicit policy opposing prostitution as a condition of receiving U.S. funding. The decision does not address application of the pledge to foreign non-government organizations receiving U.S. funding.

The case represents an important, if partial, victory in the decades-long campaign by right-wing politicians to shame and stigmatize sex workers and cut off aid to some of the most effective organizations in the field.

PEPFAR was established to prevent the spread of HIV and treat AIDS-related illnesses, but from the start became mired in conservative politics and policies. One of these was the “anti-prostitution pledge,” originally sponsored by Rep. Chris Smith (R-NJ), a staunch opponent of women’s rights. The APLO required organizations to adopt a policy stating they did not “promote” or “advocate” “the legalization or practice of prostitution,” and required them to explicitly oppose prostitution and sex trafficking. The pledge is similar in some sense to the global gag rule in that the pledge requirement limits what recipients can do with all funding, not just PEPFAR funding. But unlike the global gag rule, PEPFAR recipients are not simply “gagged” from discussing prostitution; they are compelled to take a specific stance against prostitution, and it’s a specific stance dictated by the U.S. government.

In 2005 the Alliance for Open Society International (AOSI) sued, arguing the pledge violated the organization’s First Amendment rights to be free from government-compelled speech. AOSI won a temporary injunction blocking the pledge. Numerous appeals and attempts to settle the case happened, until 2011 when the Second Circuit Court of Appeals affirmed the injunction, striking the pledge and holding that it “falls well beyond what the Supreme Court and this Court have upheld as permissible conditions on the receipt of government funds” because it “does not merely require recipients of [PEPFAR] funds to refrain from certain conduct, but goes substantially further and compels recipients to espouse the government’s viewpoint.”

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This was the issue the Roberts Court took up. Writing for the 6-2 majority (Justice Elena Kagan recused herself from the decision) the Chief Justice held that the pledge falls outside the dictates of the PEPFAR program and thus violates the First Amendment rights of the U.S. organizations that received its funds, placing the decision in a long and often convoluted line of case law that seeks to reconcile government funding that comes with strings attached.

The Spending Clause of the Constitution generally grants Congress broad discretion to fund private programs or activities for the “general welfare.” This includes the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends. Generally speaking, if a party objects to the limits Congress has set on receiving those funds, the answer is to not take the money. But sometimes Congress crosses a line, and a funding condition can become an unconstitutional burden on First Amendment rights. The distinction that has emerged from this Court’s cases on this issue is, like many Supreme Court distinctions, fuzzy. But the Court tries to strike a difference between conditions that define the limits of the government-spending program—that is, those that specify the activities Congress wants to subsidize, and those conditions that seek to leverage funding to regulate speech outside the contours of the federal program itself. The prostitution pledge, the Court held, was the latter.

To get to this conclusion, Chief Justice John Roberts and the majority relied on an important reproductive health care decision, Rust v. Sullivan. In Rust, the Court considered Title X of the Public Health Service Act, which authorized grants to health-care organizations offering family planning services, but prohibited federal funds from being “used in programs where abortion is a method of family planning.” The organizations received funds from a variety of sources other than the federal government for a variety of purposes, but the act specifically prohibited the use of Title X funds this way. To enforce the anti-abortion provision, Health and Human Services regulations barred Title X projects from advocating abortion and required grantees to keep their Title X projects “physically and financially” separate from their other projects that engaged in the prohibited activities.

A group of Title X funding recipients brought suit, claiming the regulations imposed an unconstitutional condition on their First Amendment rights. The Supreme Court rejected their claims, holding that Congress can constitutionally fund certain programs selectively to address an issue of public concern without funding alternative ways of addressing the same problem. In Title X, Congress had defined the federal program to encourage only particular family planning methods. According to the Court, the challenged regulations were simply “designed to ensure that the limits of the federal program are observed” and “that public funds [are] spent for the purposes for which they were authorized.” These regulations were valid, the Court explained in Rust, because they governed only the scope of the grantee’s Title X projects, leaving the grantee free to engage in abortion advocacy through programs that were independent from its Title X projects. Because the regulations did not prohibit speech “outside the scope of the federally funded program,” they did not run afoul of the First Amendment, the Court reasoned.

In the case of the PEPFAR pledge, the Roberts Court determined that by:

…demanding that funding recipients adopt and espouse, as their own, the Government’s view on an issue of public concern, the Policy Requirement by its very nature affects protected conduct outside the scope of the federally funded program. A recipient cannot avow the belief dictated by the condition when spending Leadership Act funds, and assert a contrary belief when participating in activities on its own time and dime.

The government had argued that the affiliate guidelines, established while this litigation was ongoing, resolved the First Amendment problems. Under those guidelines, funding recipients are permitted to work with affiliated organizations that do not abide by the condition, as long as the recipients retain “objective integrity and independence” from the unfettered affiliates. The government suggests the guidelines alleviate any unconstitutional burden on the respondents’ First Amendment rights by allowing them to either: (1) accept Leadership Act funding and comply with the policy requirement, but establish affiliates to communicate contrary views on prostitution, or (2) decline funding themselves (thus remaining free to express their own views or remain neutral), while creating affiliates whose sole purpose is to receive and administer Leadership Act funds, thereby “cabin[ing] the effects” of the policy requirement within the scope of the federal program.

But the Court wasn’t buying it, and the discussion on the role of affiliates is interesting given the battle domestically over funding for Planned Parenthood. The Court wrote:

When we have noted the importance of affiliates in this context, it has been because they allow an organization bound by a funding condition to exercise its First Amendment rights outside the scope of the federal program. Affiliates cannot serve that purpose when the condition is that a funding recipient espouse a specific belief as its own. If the affiliate is distinct from the recipient, the arrangement does not afford a means for the recipient to express its beliefs. If the affiliate is more clearly identified with the recipient, the recipient can express those beliefs only at the price of evident hypocrisy.

The government also argued that the pledge is necessary because, without it, the grant of federal funds could free a recipient’s private funds “to be used to promote prostitution or sex trafficking.” This is a classic co-mingling argument that conservatives have brought out to argue in favor of defunding health-care organizations that provide comprehensive reproductive care. The fact that the Roberts Court rejected it is a good, but cautious, sign in that battle. “That argument assumes that federal funding will simply supplant private funding, rather than pay for new programs or expand existing ones. The Government offers no support for that assumption as a general matter, or any reason to believe it is true here. And if the Government’s argument were correct, League of Women Voters would have come out differently, and much of the reasoning of Regan and Rust would have been beside the point,” the Court wrote.

Interestingly, the only case the government relied on in arguing that the funding requirement was constitutional deals with providing material support for terrorism, Holder v. Humanitarian Law Project, arguing the pledge was necessary to guarantee federal funds would not be used in a way that would undermine federal policy—a fact the majority noted in closing the opinion.

[T]he Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. As to that, we cannot improve upon what Justice Jackson wrote for the Court 70 years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

As a result of the decision, U.S. organizations receiving U.S. funds for HIV and other efforts will no longer be required to adopt the oath, and those that have already adopted it will not be required to comply. However, it will still be applicable to organizations based outside the United States receiving U.S. funds, which inherently limits the scope of the ruling. While the decision does not have any immediate impact on compelled speech and funding prohibitions in the case of reproductive health care and the campaign to defund Planned Parenthood and its affiliates, the opinion does offer some glimpses into a Roberts Court that is reluctant to adopt the conservative talking point on commingling of funds and government-compelled speech, at least broadly. And with at least two cases exploring the First Amendment constitutional limitations of funding, or not funding, family planning programs making their way through the federal courts of appeals, that’s the kind of signal reproductive health advocates like to see.

News Law and Policy

No Need to Block Bathroom Access for Transgender Student, Attorneys Tell Supreme Court

Jessica Mason Pieklo

A transgender student in Virginia sued the local school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity was unconstitutional.

Attorneys representing transgender student Gavin Grimm told the U.S. Supreme Court this week that there was no reason to block a lower court order guaranteeing Grimm access to school restrooms that align with his gender identity while Grimm’s lawsuit against the Gloucester County School Board proceeds.

Grimm in 2015 sued the school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity—thus separating transgender students from their peers—was unconstitutional. Attorneys representing Grimm argued that the policy violates the 14th Amendment and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

A lower district court ruled the school board’s policy did not violate Grimm’s rights. But the Fourth Circuit Court of Appeals disagreed, reversing that decision and sending the case back to the lower court, which then blocked the school district from enforcing its policy while Grimm’s case proceeds.

In response, the school board notified the Fourth Circuit of its intent to appeal that decision to the Supreme Court and requested the appellate court stay its order granting Grimm access to bathrooms aligned with his gender identity—a decision the Fourth Circuit granted in June.

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The school board then asked the Roberts Court to issue an emergency stay of the lower court decision blocking its bathroom policy while the Court considers taking Grimm’s case.

Grimm’s attorneys argue there is no basis for the Roberts Court to grant the emergency stay requested by the school board. The board has “utterly failed to demonstrate that it will suffer irreparable harm” if Grimm is allowed to use the boys’ restroom at Gloucester High School while the Roberts Court considers stepping into the case at all, according to Grimm’s attorneys.

Attorneys for the school board filed their request with Chief Justice John Roberts, who handles petitions from the Fourth Circuit. Roberts can rule on the school board’s request to block the lower court decision, or he can refer the request to the entire Court to consider.

It is not known when Roberts or the Court will make that choice.

The Gloucester County School Board has argued that the Obama administration overstepped its authority in protecting transgender student rights. Attorneys for the school board said that overreach began in 2012, when an administration agency issued an opinion that said refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

The administration expanded that opinion in October 2015 and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy violated federal law.

The administration again expanded that opinion in May this year into a directive stating that should publicly funded schools deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law, subject to lawsuits, and risking their federal funding.

The Fourth Circuit relied heavily on these actions in initially siding with Grimm earlier this year.

Analysis Economic Justice

New Pennsylvania Bill Is Just One Step Toward Helping Survivors of Economic Abuse

Annamarya Scaccia

The legislation would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have "a reasonable fear" that they will continue to be harmed while living in their unit.

Domestic violence survivors often face a number of barriers that prevent them from leaving abusive situations. But a new bill awaiting action in the Pennsylvania legislature would let survivors in the state break their rental lease without financial repercussions—potentially allowing them to avoid penalties to their credit and rental history that could make getting back on their feet more challenging. Still, the bill is just one of several policy improvements necessary to help survivors escape abusive situations.

Right now in Pennsylvania, landlords can take action against survivors who break their lease as a means of escape. That could mean a lien against the survivor or an eviction on their credit report. The legislation, HB 1051, introduced by Rep. Madeleine Dean (D-Montgomery County), would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have “a reasonable fear” that they will continue to be harmed while living in their unit. The bipartisan bill, which would amend the state’s Landlord and Tenant Act, requires survivors to give at least 30 days’ notice of their intent to be released from the lease.

Research shows survivors often return to or delay leaving abusive relationships because they either can’t afford to live independently or have little to no access to financial resources. In fact, a significant portion of homeless women have cited domestic violence as the leading cause of homelessness.

“As a society, we get mad at survivors when they don’t leave,” Kim Pentico, economic justice program director of the National Network to End Domestic Violence (NNEDV), told Rewire. “You know what, her name’s on this lease … That’s going to impact her ability to get and stay safe elsewhere.”

“This is one less thing that’s going to follow her in a negative way,” she added.

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Pennsylvania landlords have raised concerns about the law over liability and rights of other tenants, said Ellen Kramer, deputy director of program services at the Pennsylvania Coalition Against Domestic Violence, which submitted a letter in support of the bill to the state House of Representatives. Lawmakers have considered amendments to the bill—like requiring “proof of abuse” from the courts or a victim’s advocate—that would heed landlord demands while still attempting to protect survivors.

But when you ask a survivor to go to the police or hospital to obtain proof of abuse, “it may put her in a more dangerous position,” Kramer told Rewire, noting that concessions that benefit landlords shift the bill from being victim-centered.

“It’s a delicate balancing act,” she said.

The Urban Affairs Committee voted HB 1051 out of committee on May 17. The legislation was laid on the table on June 23, but has yet to come up for a floor vote. Whether the bill will move forward is uncertain, but proponents say that they have support at the highest levels of government in Pennsylvania.

“We have a strong advocate in Governor Wolf,” Kramer told Rewire.

Financial Abuse in Its Many Forms

Economic violence is a significant characteristic of domestic violence, advocates say. An abuser will often control finances in the home, forcing their victim to hand over their paycheck and not allow them access to bank accounts, credit cards, and other pecuniary resources. Many abusers will also forbid their partner from going to school or having a job. If the victim does work or is a student, the abuser may then harass them on campus or at their place of employment until they withdraw or quit—if they’re not fired.

Abusers may also rack up debt, ruin their partner’s credit score, and cancel lines of credit and insurance policies in order to exact power and control over their victim. Most offenders will also take money or property away from their partner without permission.

“Financial abuse is so multifaceted,” Pentico told Rewire.

Pentico relayed the story of one survivor whose abuser smashed her cell phone because it would put her in financial dire straits. As Pentico told it, the abuser stole her mobile phone, which was under a two-year contract, and broke it knowing that the victim could not afford a new handset. The survivor was then left with a choice of paying for a bill on a phone she could no longer use or not paying the bill at all and being turned into collections, which would jeopardize her ability to rent her own apartment or switch to a new carrier. “Things she can’t do because he smashed her smartphone,” Pentico said.

“Now the general public [could] see that as, ‘It’s a phone, get over it,'” she told Rewire. “Smashing that phone in a two-year contract has such ripple effects on her financial world and on her ability to get and stay safe.”

In fact, members of the public who have not experienced domestic abuse may overlook financial abuse or minimize it. A 2009 national poll from the Allstate Foundation—the philanthropic arm of the Illinois-based insurance company—revealed that nearly 70 percent of Americans do not associate financial abuse with domestic violence, even though it’s an all-too-common tactic among abusers: Economic violence happens in 98 percent of abusive relationships, according to the NNEDV.

Why people fail to make this connection can be attributed, in part, to the lack of legal remedy for financial abuse, said Carol Tracy, executive director of the Women’s Law Project, a public interest law center in Pennsylvania. A survivor can press criminal charges or seek a civil protection order when there’s physical abuse, but the country’s legal justice system has no equivalent for economic or emotional violence, whether the victim is married to their abuser or not, she said.

Some advocates, in lieu of recourse through the courts, have teamed up with foundations to give survivors individual tools to use in economically abusive situations. In 2005, the NNEDV partnered with the Allstate Foundation to develop a curriculum that would teach survivors about financial abuse and financial safety. Through the program, survivors are taught about financial safety planning including individual development accounts, IRA, microlending credit repair, and credit building services.

State coalitions can receive grant funding to develop or improve economic justice programs for survivors, as well as conduct economic empowerment and curriculum trainings with local domestic violence groups. In 2013—the most recent year for which data is available—the foundation awarded $1 million to state domestic violence coalitions in grants that ranged from $50,000 to $100,000 to help support their economic justice work.

So far, according to Pentico, the curriculum has performed “really great” among domestic violence coalitions and its clients. Survivors say they are better informed about economic justice and feel more empowered about their own skills and abilities, which has allowed them to make sounder financial decisions.

This, in turn, has allowed them to escape abuse and stay safe, she said.

“We for a long time chose to see money and finances as sort of this frivolous piece of the safety puzzle,” Pentico told Rewire. “It really is, for many, the piece of the puzzle.”

Public Policy as a Means of Economic Justice

Still, advocates say that public policy, particularly disparate workplace conditions, plays an enormous role in furthering financial abuse. The populations who are more likely to be victims of domestic violence—women, especially trans women and those of color—are also the groups more likely to be underemployed or unemployed. A 2015 LGBT Health & Human Services Network survey, for example, found that 28 percent of working-age transgender women were unemployed and out of school.

“That’s where [economic abuse] gets complicated,” Tracy told Rewire. “Some of it is the fault of the abuser, and some of it is the public policy failures that just don’t value women’s participation in the workforce.”

Victims working low-wage jobs often cannot save enough to leave an abusive situation, advocates say. What they do make goes toward paying bills, basic living needs, and their share of housing expenses—plus child-care costs if they have kids. In the end, they’re not left with much to live on—that is, if their abuser hasn’t taken away access to their own earnings.

“The ability to plan your future, the ability to get away from [abuse], that takes financial resources,” Tracy told Rewire. “It’s just so much harder when you don’t have them and when you’re frightened, and you’re frightened for yourself and your kids.”

Public labor policy can also inhibit a survivor’s ability to escape. This year, five states, Washington, D.C., and 24 jurisdictions will have passed or enacted paid sick leave legislation, according to A Better Balance, a family and work legal center in New York City. As of April, only one of those states—California—also passed a state paid family leave insurance law, which guarantees employees receive pay while on leave due to pregnancy, disability, or serious health issues. (New Jersey, Rhode Island, Washington, and New York have passed similar laws.) Without access to paid leave, Tracy said, survivors often cannot “exercise one’s rights” to file a civil protection order, attend court hearings, or access housing services or any other resource needed to escape violence.

Furthermore, only a handful of state laws protect workers from discrimination based on sex, sexual orientation, gender identity, and pregnancy or familial status (North Carolina, on the other hand, recently passed a draconian state law that permits wide-sweeping bias in public and the workplace). There is no specific federal law that protects LGBTQ workers, but the U.S. Employment Opportunity Commission has clarified that the Civil Rights Act of 1964 does prohibit discrimination based on gender identity and sexual orientation.

Still, that doesn’t necessarily translate into practice. For example, the National Center for Transgender Equality found that 26 percent of transgender people were let go or fired because of anti-trans bias, while 50 percent of transgender workers reported on-the-job harassment. Research shows transgender people are at a higher risk of being fired because of their trans identity, which would make it harder for them to leave an abusive relationship.

“When issues like that intersect with domestic violence, it’s devastating,” Tracy told Rewire. “Frequently it makes it harder, if not impossible, for [victims] to leave battering situations.”

For many survivors, their freedom from abuse also depends on access to public benefits. Programs like Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), the child and dependent care credit, and earned income tax credit give low-income survivors access to the money and resources needed to be on stable economic ground. One example: According to the Center on Budget and Policy Priorities, where a family of three has one full-time nonsalary worker earning $10 an hour, SNAP can increase their take-home income by up to 20 percent.

These programs are “hugely important” in helping lift survivors and their families out of poverty and offset the financial inequality they face, Pentico said.

“When we can put cash in their pocket, then they may have the ability to then put a deposit someplace or to buy a bus ticket to get to family,” she told Rewire.

But these programs are under constant attack by conservative lawmakers. In March, the House Republicans approved a 2017 budget plan that would all but gut SNAP by more than $150 million over the next ten years. (Steep cuts already imposed on the food assistance program have led to as many as one million unemployed adults losing their benefits over the course of this year.) The House GOP budget would also strip nearly $500 billion from other social safety net programs including TANF, child-care assistance, and the earned income tax credit.

By slashing spending and imposing severe restrictions on public benefits, politicians are guaranteeing domestic violence survivors will remain stuck in a cycle of poverty, advocates say. They will stay tethered to their abuser because they will be unable to have enough money to live independently.

“When women leave in the middle of the night with the clothes on their back, kids tucked under their arms, come into shelter, and have no access to finances or resources, I can almost guarantee you she’s going to return,” Pentico told Rewire. “She has to return because she can’t afford not to.”

By contrast, advocates say that improving a survivor’s economic security largely depends on a state’s willingness to remedy what they see as public policy failures. Raising the minimum wage, mandating equal pay, enacting paid leave laws, and prohibiting employment discrimination—laws that benefit the entire working class—will make it much less likely that a survivor will have to choose between homelessness and abuse.

States can also pass proactive policies like the bill proposed in Pennsylvania, to make it easier for survivors to leave abusive situations in the first place. Last year, California enacted a law that similarly allows abuse survivors to terminate their lease without getting a restraining order or filing a police report permanent. Virginia also put in place an early lease-termination law for domestic violence survivors in 2013.

A “more equitable distribution of wealth is what we need, what we’re talking about,” Tracy told Rewire.

As Pentico put it, “When we can give [a survivor] access to finances that help her get and stay safe for longer, her ability to protect herself and her children significantly increases.”