Ending a ten year saga, the US Supreme Court today struck down a section of the Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act that restricts government HIV/AIDS funding from groups that do not take an explicit stance in opposition to prostitution. The so-called “anti-prostitution loyalty oath” was challenged by non-governmental organizations based in the United States soon after the passage of the Leadership Act in 2003 – and the Court’s finding that the oath violated those groups’ First Amendment rights is welcome. But it is not enough, because the decision does nothing for groups that are not based in the US, including those best-positioned to fight the epidemic because of their local and grassroots nature. The First Amendment does not extend to them, meaning they are still subject to the oath’s requirements. The Leadership Act – which created the President’s Emergency Plan for AIDS Relief or PEPFAR – is up for re-authorization this year and the Obama administration should work with Congress to remove the oath once and for all.
Created under the Bush administration, which advanced a highly ideological approach to health issues from abstinence to abortion, the anti-prostitution loyalty oath seemed ripe for abandonment by the Obama administration. Indeed, many sex workers and allies hoped that would happen after the oath was struck down by the Court of Appeals in 2011. The president had campaigned on promises of restoring evidence-based approaches to health and government spending, valuing science and human rights over ideology. Despite committing to the United Nations Human Rights Council to address discrimination against sex workers in 2011, the administration continued to defend the loyalty oath, among other ill-conceived policies. At the International AIDS Conference in 2012 in Washington, DC, sex worker activists and allies disrupted sessions chanting “Remove the Pledge, Reform PEPFAR!”
It is well-established in public health that some of the most effective interventions are designed and led by the communities that they target. Including sex workers, along with other communities at higher risk for HIV, in program implementation, planning and leadership is a best practice that even the US Agency for International Development highlights. But the anti-prostitution loyalty oath makes such peer leadership and involvement impossible, and has resulted in the defunding of dozens of organizations doing critical, life-saving work across the globe.
Perhaps worst of all, the policy advances an ideological agenda which views sex workers are incapable of knowing what is best for themselves. Under this moralist rubric, which is espoused by a strange-bedfellows coalition of fundamentalist Christians and prohibitionist feminists, any person with experience in the sex sector cannot be trusted to articulate her or his own needs. These anti-prostitution crusaders go so far as to suggest that distributing condoms to sex workers is an act of violence.
This nonsensical approach to public policy must stop. The Obama administration should make good on its commitment to evidence-based health policies and human rights. Just last week Secretary of State John Kerry was hailing the coming of an “AIDS-free generation” – that won’t happen while the anti-prostitution loyalty oath remains in place.