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Policy & Politics
Appeals Court Hears Arguments in Case Challenging U.S. Policy Requiring Overseas HIV/AIDS Groups to Oppose Commercial Sex Work

June 4, 2007

The U.S. 2nd Circuit Court of Appeals in New York City on Friday heard oral arguments in a lawsuit involving a U.S. policy requiring that recipients of federal HIV/AIDS service grants pledge to oppose commercial sex work, the New York Sun reports (Goldstein, New York Sun, 6/1). The Bush administration in June 2005 notified U.S. organizations providing HIV/AIDS-related services in other countries that they must sign the pledge to be considered for federal funding. The policy stems from two 2003 laws, including an amendment to legislation (HR 1298) authorizing the President's Emergency Plan for AIDS Relief that prohibits funds from going to any group or organization that does not have a policy "explicitly opposing prostitution and sex trafficking." The Open Society Institute, the Alliance for Open Society International and Pathfinder International in 2005 filed the lawsuit against USAID over the policy. OSI has said the policy "weakens efforts to provide lifesaving services and information to sex workers" and is unconstitutional because it is vague and requires private organizations to adopt the government's position. Assistant U.S. Attorney Richard Rosberger argued that the 2003 law mandating the pledge did not contain any provision intended to deter HIV/AIDS treatment efforts, including those for commercial sex workers. U.S. District Judge Victor Marrero in May 2006 ruled that the U.S. policy violates the groups' First Amendment right to free speech (Kaiser Daily HIV/AIDS Report, 5/10/06).

"To permit the government-funded partners to engage in speech inconsistent with the government's established policy of eradicating prostitution would inevitably mix the government's message and negatively impact its program," the government's brief said. According to Laura Abel, an attorney representing OSI, the group received a $16.5 million, five-year grant from the government. Both OSI and Pathfinder "do not seek to advocate the practice of prostitution," their brief said, adding, "Rather they seek the freedom to discuss and use the most effective techniques to fight HIV/AIDS, including empowering prostitutes to protect their own health and exercise their human rights." Their brief also said that forcing the groups, which also receive private funding, to oppose commercial sex work is an "unwarranted intrusion into First Amendment rights." A federal appellate court in Washington, D.C., in February ruled in favor of the government in a similar case involving the policy, the Sun reports (New York Sun, 6/1).

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