UPDATE: This article was amended at 8:00 pm, Wednesday, July 6th, 2011 to confirm that today’s decision applies only to the organizations named in the suit and does not apply to international and country-level organizations established outside the U.S.

Correction: This article was amended at 4:08 pm on Wendesday, July 6th, 2011 to reflect the fact that the implications of the court decisions for non-U.S. organizations is not yet clear. 

A federal appeals court today ruled that the United States cannot force organizations receiving U.S. funding to “denounce” prositution and sex trafficking as a condition for applying for or using U.S. international HIV and AIDS funding.  The suit was originally filed by two U.S. groups, the Alliance for Open Society International and Pathfinder International in 2005; two other organizations, the Global Health Council and InterAction, joined the suit in 2008.

The court found that the “prostitution pledge” or “anti-prostitution loyalty oath,” as it came to be known, was not constitutional because it compels organizations to adopt and espouse a government viewpoint, and that “[c]ompelling speech as a condition of receiving a government benefit cannot be squared with the First Amendment.” The majority opinion condemned the requirement as “viewpoint-based, because it requires recipients to take the government’s side on a particular issue. It is well established that viewpoint-based intrusions on free speech offend the First Amendment.”

The pledge was originally inserted by New Jersey Republican Congressman Chris Smith as an amendment to the 2003 U.S. Global Leadership Act Against AIDS, Tuberculosis and Malaria, the legal basis of the President’s Emergency Plan for AIDS Relief (PEPFAR).  As ultimately interpreted by the Bush Administration (including the Global AIDS Coordinator in the Department of State and the Department of Justice under Bush) the pledge required organizations to promise not to “promote or support prostitution” while implementing U.S.-funded programs to fight the spread of HIV and attempting to end the AIDS epidemic. 

The Obama Administration, to the dismay of public health and human rights advocates, has kept the pledge in force.

The pledge, which as defined by the Bush Administration applied to speech and activities funded not only by the U.S. government but by other private sources of funding, was and has continued to be criticized by the global public health and human rights communities for a number of reasons. Among other problems, the language of the pledge is incredibly vague and does not effectively define what constitutes “promoting” prostitution. For example, is helping sex workers find health care “promoting prostitution?”  Is ensuring that sex workers have access to condoms “promoting prostitution?” Does providing vulnerable street-based sex workers with a place to sleep and use a toilet constitute “promoting prostitution?”  From the beginning, the inability to answer these and other questions created a chilling effect on organizations doing work to prevent HIV infections because, in fear of violating a policy they could not define and thereby losing their funding, programs that might otherwise been funded were dropped, irrespective of whether the strategies involved had been proven to reduce the spread of HIV.

Moreover, programs recognized around the world for their successes in working with marginalized populations such as sex workers and other marginalized populations have been de-funded.  The pledge also required health workers to become quasi-law enforcement agents, undoing years of work building trust among vulnerable populations such as street- and brothel-based sex workers in countries like Cambodia, India, Thailand, and Vietnam.  Finally, it prevented U.S. organizations recieving either U.S. or private funds from supporting the efforts of sex worker collectives to promote universal condom use, safe sex practices, to defend themselves against police violence and corruption, or to fight to secure their basic human rights.

According to the Associated Press, the 2-to-1 ruling by the U.S. 2nd Circuit Court of Appeals in New York upheld a lower court decision.

“Today’s victory has profound implications not only for the rights of private, non-governmental organizations to operate without undue government interference, but for the health of vulnerable women, men, and adolescents in less developed countries,” Pathfinder President Daniel E. Pellegrom, said.

“Any organization that works to address the tragedy of HIV and AIDS must confront head on the need to serve sex workers, but the loyalty oath undermines our efforts by forcing us to stigmatize the very people we are trying to reach.”

Still the ruling, while a critical step forward, is nonetheless a partial victory for women’s rights because it applies only to U.S. non-profit groups and does not lift the pledge requirements from international (non-US) or local NGOs in other countries doing critical HIV and human rights work. To make true progress on HIV and AIDS, and on the rights of all persons engaged in sex work, human rights and health advocates argue that the pledge must be removed as a condition of aid to any and all groups.