Excerpts from a report by Katherine Franke on the oral argument in Alliance for Open Society International v. USAID:
...[which is] a case brought by the Brennan Center challenging the 2003 Bush era regulations that required any entity receiving USAID under the Global AIDS Act to sign a pledge that “no funds made available to carry out this Act … may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” 22 U.S.C. Sec. 7621(f). It also prohibits recipients from saying or doing anything that the Government deems “inconsistent with [an] opposition to prostitution,” 75 Fed. Reg. 18,760 (Apr. 13, 2010).
The lawsuit claims that the “anti-prostitution pledge” requires Plaintiffs to espouse the government’s viewpoint on prostitution, conditions Plaintiffs’ eligibility for public funds on holding favored beliefs, and prohibits Plaintiffs from saying or doing anything contrary to the government’s viewpoint with their private funds...
The government itself has trouble explaining exactly what recipients of Global AIDS Act money must do to comply with the pledge, assuming they’re willing to sign it. The government has said that beyond a prohibition on advocating for a ban on legalization of sex work, the pledge may, MAY, also include a ban on advocating for a reduction in penalties for sex work, or even helping sex workers unionize. So too, any work helping sex workers to prevent police abuse might also violate the act if were merely a fig leaf for legalization. Worse yet, even using the term “sex work” or “sex worker” might violate the Act since the underlying politics of these terms might indicate support or legalization.
Read the complaint and other documents in the lawsuit describing the real and anticipated problems that health advocates working with sex workers, oops, prostitutes will have in both accomplishing their harm reduction mission and complying with the pledge. They’re all available here.
In 2006 the plaintiffs won in the trial court – opinion here – and it’s been up and back to the Second Circuit, and the argument today was on whether the Obama Administration’s April 2010 interpretation of the pledge requirement cured the pledge of any constitutional problems.
Hearing the case were Judges Chester J. Straub, Rosemary Pooler, and Barrington Parker Jr. Arguing for the Brennan Center was Rebekah Diller and for the government was Ben Torrance (Columbia Law School ‘00).
Shortly after Torrance got started he was interrupted by Judge Parker who asked him: “Could the government require organizations to write into their charter that marriage is between a man and wife, on the grounds that a major spread of AIDS is homosexual conduct?”
Torrance hemmed and hawed, and returned the discussion to the government’s judgment that there is a strong causal relationship between prostitution and HIV transmission.
Shortly thereafter Parker lept in again: “What does it mean to oppose prostitution? If OSI works in the back streets of Mumbai, can it work with street workers and organize them not to work with customers who don’t use condoms?...Must an OSI intern on the streets of Mumbai cable Washington to get ok before proceeding in her work?”
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