MPact Decries U.S. Supreme Court’s Decision to Uphold PEPFAR’s Anti-Prostitution Loyalty Oath

MPact condemns the counterproductive decision by the U.S. Supreme Court to uphold the “anti-prostitution loyalty oath” (APLO) as a requirement to receive funding from the President’s Emergency Plan for AIDS Relief (PEPFAR) for foreign affiliates of U.S.-based health organizations.

When Congress created PEPFAR in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, the Act contained the “anti-prostitution loyalty oath” provision which requires all recipients of PEPFAR funding to “have a policy explicitly opposing prostitution,” and further limits funding by stating that:

  • No funds “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking.”
  • No funds “may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”

In 2013, the Supreme Court ruled that the APLO was an unconstitutional limit on free speech when applied to U.S.-based organizations; this meant that Congress cannot require a U.S.-based PEPFAR-recipient to adopt the APLO as a condition of funding. However, this week’s decision at the Supreme Court states that foreign affiliates of U.S.-based health organizations are not protected by the U.S. Constitution, and thus are not provided the same right of free speech, meaning the APLO is applicable to non-U.S.-based PEPFAR funding recipients

By excluding foreign organizations that advocate for the human rights of sex workers from PEPFAR funding, this week’s decision will seriously inhibit efforts to provide sex workers with the information, services, care and support they need to prevent HIV. Sex workers must actively participate in the research, design, and implementation of HIV programs in order for these programs to succeed, and this decision will undoubtedly result in lesser engagement with community-based and sex worker-led organizations. This is bolstered by in-depth analysis and evidence:  in 2013, ten years into the implementation of PEPFAR’s APLO, the Journal of the International AIDS Society published a study that showed the provision reduces the effectiveness of the HIV response.

Since its inception, the Global Network of Sex Work Projects (NSWP) has opposed the APLO and continually called for its removal. As elaborated in the NSWP brief, Sex Work is Not Trafficking, the false conflation of sex work and human trafficking denies agency to sex workers of all genders and will lead to ineffective policies that fail to address the root cause of HIV risk and violence among sex workers:  the criminalization of sex work.

“This is a disappointing decision from the Supreme Court, which chose to ignore years of public health science and deny the human rights of sex workers. Gay and bisexual men who engage in sex work continue to be impacted by this detrimental policy throughout the world. U.S. leadership is woefully misguided on multiple policies related to sex work, including travel restrictions for sex workers to enter the United States. This week’s decision reminds us that the U.S. is hostile toward sex worker communities and reaffirms the necessity of the HIV2020 community-led conference to reclaim the HIV response.”  Dr. George Ayala, MPact Executive Director

Multiple studies have recognized that the decriminalization of sex work would greatly advance the human rights of sex workers and improve public health outcomes. The Lancet published a study which estimated that decriminalization of sex work and the promotion of safe working environments for sex workers could avert 33-46% of new HIV infections in sex workers and clients over a decade. UNAIDS, WHO, UNFPA, and multiple other agencies all recommend decriminalization of sex work to reduce HIV infections.

As the largest bilateral donor to the HIV response, PEPFAR must enact policies that are based in evidence, human rights, and international best practices. The APLO is completely counterproductive to this effort. Congress should act now to remove this harmful provision from the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003.

Read More About the Supreme Court’s Ruling Here

Header Image “Umbrella Drying” by Liz West on Flickr. Made available under CCBY.