Jan. 24, 2007 – Fourteen years ago, Meena Saraswathi Seshu and other women in the Indian state of Maharashtra founded SANGRAM, a collective of female sex workers that grew to include thousands of members. Curbing the spread of HIV has been one of the groupâ€™s primary goals, and the women have earned international awards for their successful work.
So when SANGRAM was told to adopt a pledge opposing sex work if they wanted to receive funding from the US government, the women refused and forfeited a grant funded by the US Agency for International Development (USAID).
SANGRAM is one of various international and US-based groups that, along with the Brazilian government, have forgone US funding for critical HIV-prevention work because they refused to take an explicit stand opposing sex work and its decriminalization.
When President Bush signed the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003, otherwise known as the AIDS Leadership Act, he described the $15 billion, five-year initiative as a way to step up the US commitment to addressing HIV and AIDS globally.
Noting that the sex industry contributes to the spread of HIV, the law says, "Prostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices."
But groups working internationally to stem the AIDS epidemic say a provision of the Act twists the legislation into a counterproductive and hypocritical measure.
â€œItâ€™s a womenâ€™s rights issue, itâ€™s a freedom of speech issue, it has a lot of different implications.â€
The Act says groups receiving US government funds, usually administered through USAID, must have in place a pledge "explicitly opposing prostitution or sex trafficking;" and that no funds "may be used to promote or advocate the legalization or practice of prostitution or sex trafficking." At first the pledge didnâ€™t apply to US organizations, but government officials reinterpreted the pledge, and in 2005 began to apply it to US-based groups that do international work.
Public-health and womenâ€™s rights groups in the US and abroad say that if put into practice by groups fighting the disease, this requirement will prevent sex workers from seeking counseling and aid, and hence bar outreach to one of the populations most vulnerable to contracting HIV.
Two lawsuits filed in 2005 call the pledge an unconstitutional violation of free speech, and in 2006, federal district judges separately ruled that the pledge was indeed unconstitutional. But the government has appealed the cases, which now sit before three-judge panels in two federal appeals courts.
The Alliance for Open Society International (AOSI) is the lead plaintiff in one of the cases. The Alliance has received USAID funding for its work against HIV/AIDS in Central Asia.
The AOSI adopted an anti-sex-work statement in order to continue a five-year program aimed at drug users in Central Asia, funded in part by a USAID grant. According to the lawsuit documents, after months of confusing correspondence with USAID officials who failed to clarify whether AOSIâ€™s policy did actually satisfy the pledge or not, in 2005 AOSI sued USAID over the pledge requirement.
The government argued that "it may impose reasonable conditions... in order to advance programmatic goals..."
"Since USAID began implementing its pledge requirement, the plaintiffs have been torn between their desire to continue this successful, life-saving work, and their desire to avoid adopting an ideologically driven government policy that will hurt their ability to do their life-saving work with their own funding," states the lawsuit complaint.
The other lawsuit was filed by the group DKT International after USAID stopped funding its condom program in Vietnam because it refused to adopt the anti-sex-work pledge. With offices in the United States and eleven other countries, DKT focuses on condom distribution and reproductive rights around the world.
The group does not have a policy either supporting or opposing prostitution, according to the complaint, and it says it will not adopt a policy opposing sex work because it predicts such a position would stigmatize and alienate sex workers who are vulnerable to HIV.
In May 2006 a Washington, DC district judge ruled in DKTâ€™s favor. The governmentâ€™s appeal was heard earlier this month, and now the parties are awaiting the judgesâ€™ decision.
More than 25 public-health and womenâ€™s rights organizations have filed "friend of the court" briefs in each case, arguing the pledge will seriously curtail the international fight against HIV/AIDS and put lives at risk.
"Itâ€™s a womenâ€™s rights issue, itâ€™s a freedom of speech issue, it has a lot of different implications," said Claudia Flores, staff attorney at the womenâ€™s rights project of the ACLU, which filed the briefs. She described the Act as "a conflation of two different goals" on the governmentâ€™s part: "the goal to eradicate AIDS, and the governmentâ€™s position on the harmful effects of prostitution."
Donna Barry, acting director of womenâ€™s health at the Boston-based NGO Partners in Health, said her organization and many international groups have taken the pledge and tried not to let it affect their relationships with clients. Partners in Health doesnâ€™t post the pledge at their facilities or otherwise go out of their way to make it known to the people they serve. Barry said there arenâ€™t many sex workers in the rural parts of Haiti where Partners works anyway; the issue is likely more pressing for urban organizations.
"Clearly people who earn a living as sex workers are the highest risk group for HIV," Barry said. "If [the pledge] is followed to the letter of the law, people will get sick and die."
The government doesnâ€™t deny that sex workers are highly vulnerable to HIV/AIDS. In fact, it is a stated motivation behind the controversial provision.
Opponents of the rule point out that the pledge runs counter to the Actâ€™s own explicitly stated aims, including placing "particular emphasis" on "specific populations that represent a particularly high risk of contracting or spreading HIV/AIDS, including those exploited through the sex trade." The groups also charge that the pledge contradicts the Actâ€™s stated goal to "reduce the stigma associated with HIV/AIDS."
But in a brief filed in its appeal of the DKT decision, the government argued that when it funds private organizations, it "may impose reasonable conditions on those third parties in order to advance programmatic goals and to protect against the confusion of its message."
It continued that "in imposing the funding condition, Congress was aware that organizations receiving foreign aid had advocated the practice and legalization of prostitution as well as weakened restrictions on sex trafficking â€“ activities that Congress had explicitly linked to the spread of HIV/AIDS."
Seshu of SANGRAM sees the anti-sex-work pledge as part of a larger crisis wherein moralistic views toward sex workers leave the workers themselves and groups that serve them vulnerable to brutal attacks and harassment from law enforcement and others. Seshu says she has been physically and verbally attacked because of her work with SANGRAM.
"Both prostitution and HIV/AIDS are deeply stigmatized in the communities covered by these programs, and the criminalization of prostitution always opened the door to police harassment and threats by local authorities or vigilantes to disrupt programs," Seshu said.
Adrienne Germain, president of the International Womenâ€™s Health Coalition, describes the pledge as "ideological morality run amok, being imposed in a really neocolonialist manner." She noted that some countries that have had success curtailing new HIV infections â€“ Thailand and Brazil â€“ "have been able to do it because of their ability to reach out in a respectful way to sex workers and their clients."
"Since stigma, discrimination and violence are so much a part of the lives of people who live with HIV/AIDS or are perceived to be carriers of it, the right to free speech is so very central," she added. "For the US government to take a posture that suggests otherwise is in itself fundamentally damaging. Human rights, including freedom of speech, are central to progress, both in regards to HIV/AIDS and to overall progress."