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US: Court Overrules Anti-Prostitution Gag Rule for US Groups

Government Should Strike ‘Anti-Prostitution Pledge’ Entirely to Protect Sex Workers

(New York) - The US Court of Appeals' ruling on July 6, 2011, that the government may not force US organizations that get funding for international anti-AIDS work to pledge their opposition to prostitution  is an important step in the global fight against AIDS, Human Rights Watch said today.

The Second Circuit Court of Appeals ruling in Alliance for Open Society International v. United States Agency for International Development affirmed lower court orders halting enforcement of the anti-prostitution pledge requirement on grounds that forcing funding recipients to adopt and espouse the government's viewpoint violated fundamental free speech rights.

"The US government's 'anti-prostitution' pledge undermines its global efforts against HIV/AIDS," said Rebecca Schleifer, health and human rights advocacy director at Human Rights Watch.  "It also violates freedom of speech for anti-AIDS groups and undermines the fundamental right of sex workers to get lifesaving information about HIV/AIDS."

The United States Leadership Act Against HIV/AIDS, Tuberculosis and Malaria of 2003 requires funding recipients to adopt a specific, organization-wide policy "explicitly opposing prostitution and sex trafficking." Federal regulations implementing the act require funding recipients to agree that they are "opposed to the practices of prostitution and sex trafficking." But the regulations go beyond the Leadership Act requirements for adopting the government's view, Human Rights Watch said, also requiring them to adopt the government's reasoning: "because of the psychological and physical risks they pose for men, women and children."

In an amicus curiae brief to the US Court of Appeals for the Second Circuit in AOSI v. USAID, 22 organizations, including Human Rights Watch, described the harmful local and global consequences of the Leadership Act on efforts to fight HIV and AIDS among sex workers and other marginalized groups. The organizations said that the act disrupts outreach efforts and joint programming with sex workers by forcing non-profit groups to present a stigmatizing, anti-prostitution message.

Domestic and international health organizations - including the US Centers for Disease Control, the World Health Organization, and UNAIDS - have acknowledged that partnerships between sex workers and public health organizations are critical in ensuring effective HIV prevention and treatment efforts. Indeed, the Leadership Act itself encourages other public and civil society partnerships.  By impeding or destroying partnerships with sex workers and organizations working with them, the Leadership Act frustrates its goals of decreasing stigma, and ultimately HIV/AIDS prevalence, worldwide, Human Rights Watch said.

"Sex workers play a crucial role in fighting HIV/AIDS - a fact that leading US and international health agencies have recognized," Schleifer said. "Forcing organizations to sign a pledge opposing prostitution exacerbates stigma and discrimination, and makes it difficult or impossible to engage sex workers in effective anti-AIDS efforts."

While the ruling is important, Human Rights Watch said the government should take additional steps, including policies to promote and strengthen federal support for reducing HIV/AIDS  in sex worker populations and to provide support to sex worker coalitions conducting HIV/AIDS work.

Human Rights Watch noted that the US government said in March that "[n]o one should face violence or discrimination in access to public services based on sexual orientation or their status as a person in prostitution."  The statement was made in agreement with recommendations from the UN Human Rights Council that the US should "ensure access to public services, paying attention to the special vulnerability of sexual workers to violence and human rights abuses."

The Second Circuit ruling applied only to US organizations and does not affect the Leadership Act's application to foreign (non-US) organizations receiving US anti-AIDS funding. These organizations also play a critical role in the global fight against HIV/AIDS, Human Rights Watch said.

"The Obama Administration should stop enforcing the anti-prostitution pledge immediately against all groups, including US and foreign organizations," Schleifer said.  "Leadership in the fight against AIDS requires removing the pledge altogether from US law."

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