What You Can’t Say Might Hurt You

Last week the U.S. Court of Appeals for the Second Circuit refused to revisit its earlier decision invalidating the “anti-prostitution pledge” and protecting nonprofits’ right to speak freely about sex work and public health. In doing so, not only are they protecting the First Amendment, but also encouraging improved public health efforts to provide appropriate HIV services to a community hit hard by the pandemic: sex workers. The Obama Administration must now decide whether to appeal to the Supreme Court.

The civil society movement to demand accessible, affordable, and quality HIV/AIDS services has based its success on an ethos of inclusion. Activist cries of “nothing about us without us” underscore the notion that civil society participation and free speech is essential to provide good health care. Those most affected by the disease—namely women, gay men, people who use drugs, sex workers, and transgender individuals—have emerged as leaders in the fight to end AIDS and are prominent at health policy tables where they were previously largely absent.

While we celebrate the court’s decision, the ruling only applies to U.S. based NGOs. Foreign NGOs who receive U.S. funds to combat HIV are still beholden to the anti-prostitution pledge. The pledge requires organizations that receive funds through PEPFAR (America’s enormous AIDS program) to establish a policy “opposing prostitution.” As such, implementers of AIDS programs are forced to adopt the government's position on the issue, and it's unclear whether the government would even allow groups to sponsor debates or discussions on sex work and health policy.

Reports early on about enforcement indicated that the anti-prostitution pledge has meant that organizations are often reticent to include sex workers in the design, implementation, and evaluation of their programs. Some groups have completely cut their services to sex workers for fear of running afoul of the vague U.S. policy. Further, organizations that are run by and for sex workers are largely excluded from receiving PEPFAR money.

The organization Bar Hostess Empowerment and Support Programme (BHESP) in Nairobi, Kenya, manages drop-in centers for sex workers, provides legal services, and even runs a program whereby sex workers who are being threatened with violence or illegal arrest can SMS a hotline to receive immediate advice and assistance. Its work has improved the lives of hundreds of poor women who are often the heads of households supporting children and parents. In recognition of its excellent work, BHESP is supported by the Global Fund to Fight AIDS, Tuberculosis and Malaria as part of the Kenyan government's national program to combat HIV/AIDS.

The organization’s executive director, Peninah Mwangi, has been a sex worker in Kenya for well over a decade. For several years, Mwangi applied to PEPFAR for prevention funding for BHESP and was denied. "We couldn't understand why we were denied. Many women were dying," Mwangi recounts. Finally, a PEPFAR representative told her the reason: "We cannot fund you unless you get out of sex work." Groups in Thailand, Cambodia, and Bangladesh have told similar stories. They were refused funding unless they agreed to exclude people who were advocating for the human rights of sex workers, and adopt policies that would essentially condemn and stigmatize the very communities that should have a voice at the table. In a survey of PEPFAR-recipient agencies, 19 of 31 people interviewed reported that they censored themselves or their organizations as a result of the pledge. Almost all contracting agencies reported that they have cleared their websites of references to sex workers or sex workers’ rights.

PEPFAR should be supporting comprehensive programs to reduce HIV—and that requires working with at-risk groups like sex workers. We know that programs that include services such as drop-in centers and legal aid, for example, have been proven to reduce individuals’ vulnerability to HIV. And there’s a huge demand for these types of services, as evidenced by BHESP and the many similar programs worldwide that we fund through the Open Society Foundations.

The public health and human rights community is gearing up for the International AIDS Conference taking place in Washington, D.C. this July. The conference will be an opportunity for the U.S. government to reinforce its commitment to an AIDS-free world by promoting evidence-based responses and ensuring that those most affected by the pandemic are heard at policy discussions. We hope that the U.S. government takes this opportunity to finally retire the anti-prostitution pledge. The evidence is clear. Let’s stop playing politics as usual and actually do something that could save millions of lives.