In 2003 the Bush administration adopted a rule stipulating that any organization receiving US funds for HIV/AIDS prevention must sign an "anti-prostitution pledge." The pledge requirement, introduced by right-wing New Jersey Congressman Chris Smith (R), has had devastating effects on humanitarian organizations worldwide, crippling the ability of NGOs to work with the populations most at risk from HIV, isolating sex worker advocacy organizations from their allies, and fueling discrimination against sex workers and gay people.

Because of its vague, confusing language, and because it blocks groups receiving USAID money even from using their own private funds to aid vulnerable sex workers, the pledge has effectively gutted the otherwise-laudible President's Emergency Fund for AIDS Relief (PEPFAR), a five-year, $15 billion effort to fight the spread of the virus. Arguably, it means that PEPFAR has done more harm than good. Last year, in response to a lawsuit by the Soros Foundation's Open Society Institute, a federal judge here in New York found that the pledge violated the constitutional guarantee of freedom of speech. Rather than drop the requirement, however, USAID and the Department of Health and Human Services moved last month to make things even more difficult for humanitarian groups.

Now, the Network of Sex Work Projects has produced a 13-minute video called "Taking the Pledge," which interviews activists from a number of countries affected by the policy, documenting some of the harm it has done. An accompanying NSWP fact sheet explains why the pledge is so misguided:

These policies run contrary to best practices in public health and are undermining efforts to stem the spread of HIV and human trafficking. The restrictions preclude recipients of US funds from using proven effective practices to prevent the spread of HIV among marginalized populations, and undermine efforts to promote the fundamental human rights of all persons.

The organizations with the most effective HIV-prevention programs build their efforts on a sophisticated understanding of the social and personal dynamics faced by marginalized populations, and start by building trust and credibility among these populations. They recognize that it is necessary to provide social, legal and health services to men and women in sex work without judging them.

NYU's Brennan Center for Justice, which filed the lawsuit on behalf of OSI, elaborates:

While none of the relief organizations receiving funds "support prostitution," it is essential that they maintain their ability to engage in proven, effective HIV prevention methods with at-risk populations. That ability is inevitably compromised when groups are simultaneously forced to condemn those they are reaching out to. The "pledge requirement" puts providers in exactly this bind, and it thus undercuts evidence-based, practical and urgently needed public health policies in the name of ideological purity.

The anti-prostitution pledge is yet another example of how the Bush administration has endangered public welfare by putting ideology ahead of science and practical knowledge. Making the situation worse is the fact that USAID has refused to clarify the requirement's vague and over-broad language, forcing many organizations to over-react by cutting off all contact with sex workers, who are very often those most in need of assistance. Taking the Pledge documents the results. A Thai activist describes how former allies now isolate sex workers and their advocates, afraid of running afoul of the pledge's requirements. Hazera Bagum explains that the pledge forced the closing of 16 drop-in centers for homeless sex workers in Bangladesh, depriving them of a place to sleep, bathe, use the toilet, and learn about HIV prevention. Another activist describes how doctors in Cambodia use the pledge to discriminate against gay people and sex workers.

Last May, US District Court Judge Victor Marrero ruled the pledge unconstitutional, saying that “the Supreme Court has repeatedly found that speech, or an agreement not to speak, cannot be compelled or coerced as a condition of participation in a government program.” Rather than abandon the policy, however, USAID and HHS are moving to protect themselves from Judge Marrero’s ruling by issuing new guidelines, allowing organizations receiving PEPFAR funds to spend their own private money free of the pledge requirement only if they create entirely separate legal structures through which to do so. This means that resource-poor relief groups will be forced to build parallel organizations with separate executive directors, staff, and physical facilities. As the Brennan Center points out (print-only backgrounder), the new guidelines – announced June 1st – “will impose costs on PEPFAR grantees so exorbitant as to prohibit most from using their private funds to speak freely about the relationship between prostitution and AIDS.” And the Center notes that USAID itself argued against applying the very same kind of rules to faith-based organizations!

During the notice and comment period for the faith-based regulations, USAID specifically rejected the idea that added physical separation requirements be imposed on faith-based grantees, stating:

USAID believes that separation in both time and location is legally unnecessary and would impose an unnecessarily harsh burden on small religious organizations, which may have access to only one location that is suitable for the provision of the USAID-funded service(s).

The Bush administration is happy enough to pander to the religious right, but refuses to give equal treatment to organizations doing crucial HIV/AIDS prevention work.

This battle is as much political as it is legal. One thing you can do is to watch Taking the Pledge, and help spread the word about the video and about the pledge. If we’re going to be serious about stopping the spread of AIDS and improving the health of disadvantaged people both at home and abroad, we’ll need to help convince our government to take the issue seriously as well.