Letter Regarding the U.S. Global AIDS Act

Coordinated by the Center for Health and Gender Equity (www.genderhealth.org)

May 17, 2005

The President
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500 USA

Dear Mr. President:

The undersigned represent a diverse group of public health, human rights, faith-based and community-based organizations. We strongly support the U.S. government's goals of preventing the spread of HIV and ending trafficking in persons worldwide. We are concerned, however, that U.S. anti-HIV/AIDS and anti-trafficking efforts will be severely undermined by policies restricting the range of interventions that can be used to protect the lives and health of women and men in prostitution, and of trafficked persons, the very groups intended as beneficiaries of U.S. efforts.

Current U.S. law requires organizations receiving U.S. global HIV/AIDS and anti-trafficking funds to adopt specific organization-wide positions opposing prostitution.^[i] Until recently, these restrictions have been applied to foreign non-governmental organizations receiving U.S. HIV/AIDS and anti-trafficking funds.^[ii] A September 2004 opinion letter by the U.S. Department of Justice, however, proposes expanding these policies to U.S.-based organizations.^[iii] Both U.S. AIDS law and anti-trafficking law also bar the use of funds, variously, to "promote, support, or advocate the legalization or practice of prostitution."^[iv]

Based on our experience advocating for the health and human rights of women and men in prostitution, we are deeply concerned that these restrictions will preclude recipients of U.S. funds from using the best practices at their disposal to prevent HIV/AIDS among these populations and to promote the fundamental human rights of all persons. In fact, evidence exists that these restrictions are already undermining promising interventions.

Women and men in prostitution, some of whom have been trafficked, are among the most marginalized persons in any society. The organizations with the most effective anti-AIDS and anti-trafficking strategies build their efforts on a sophisticated understanding of the social and personal dynamics underlying these issues, and start by building trust and credibility among the populations in question. They recognize that it is both possible and often necessary to provide social, legal and health services to men and women in prostitution without judging them, and without adopting positions on issues such as prostitution.^[v] They may work to provide persons in prostitution with new skills essential to moving out of the commercial sex sector, to secure the legal rights of men and women in prostitution to be free from violence and discrimination, or to empower them to demand universal condom use, thereby preventing the further spread of HIV infection within and outside this sector.^[vi] They may also work to prevent people from being trafficked into the sex sector and to assist trafficking victims. Requiring organizations to adopt anti-prostitution policies makes it extremely difficult, if not impossible, to establish the trust necessary to provide services to these hard-to-reach groups.

We are strongly opposed to the current restrictions on working with women and men in prostitution inscribed in law and extended in U.S. HIV/AIDS and anti-trafficking policies. First, and most importantly, these policies run contrary to best practices in public health and will undermine efforts to stem the spread of HIV and human trafficking. For example, the Sonagachi Project in Calcutta, India, has reached more than 30,000 persons working in the commercial sex sector at risk of HIV, in large part through peer-based outreach services. Sonagachi's peer educators work to stop the spread of HIV among women and men in prostitution in part through strategies intended to earn their trust, reduce their social isolation, increase their participation in public life, and confront stigma and discrimination.^[vii] Sonagachi's work has received strong positive evaluations from both UNAIDS and the World Bank, and has been cited by UNAIDS as a "best-practice" model of working with women and men in prostitution.^[viii] These initiatives focus on promoting the fundamental human rights and health of persons working in prostitution, but do not equal the promotion of prostitution. Yet valuable programs such as those run by Sonagachi and organizations like it are exactly the type threatened by current U.S. laws and policies.

Second, the broad language of the restrictions increases the risk that organizations will self-censor or curtail effective programs for fear of being seen as supporting or promoting prostitution. In fact, the restrictions are already having a chilling effect on work in the field. In Cambodia, for example, NGOs discontinued plans to provide English language training classes for people working in the commercial sex sector for fear such programs would be interpreted as "promoting prostitution."^[ix] Yet in Phnom Penh alone, the rapid growth of job opportunities in government, in non-governmental organizations, and in the tourist industry makes English language skills a valuable commodity and a means of accessing opportunities outside the sex sector. In Jamaica, health workers working with men and women in prostitution have expressed concern that these restrictions curtail their ability to support the efforts of people working in the commercial sex sector to protect their rights.^[x]

We recognize that your goal is to address the dangers associated with prostitution and trafficking in persons. However, we are concerned that these policies will do little to advance this goal, and will instead exacerbate stigma and discrimination against already marginalized groups. Any anti-prostitution declaration by organizations working in the sex sector has the potential to judge and alienate the very people these organizations seek to assist, making it difficult or impossible to provide services or assistance to those at risk. Public statements against prostitution can also fuel the public opprobrium against men and women in prostitution, further driving them underground and away from lifesaving services. It was for these and other reasons that Brazil recently rejected $40 million in U.S. global AIDS money, noting that such restrictions undermined the very programs responsible for Brazil's success in reducing the spread of HIV.^[xi]

Finally, we are gravely concerned that the potential expansion of these restrictions to U.S.-based groups contradicts the fundamental right to freedom of speech guaranteed in the U.S. Constitution.^[xii] Requiring domestic organizations with mixed funding to adopt positions consistent with U.S. government policy compels speech, which is an unconstitutional condition on government funding in violation of the First Amendment.^[xiii] While the U.S. government can legally require its funds be used to further government-approved messages,^[xiv] it has not previously compelled U.S. organizations with multiple funding sources to speak explicitly on an issue in compliance with a specific U.S. objective. The courts have long held that the government does not have power to compel a U.S. grantee to pledge allegiance to the government's viewpoint in order to participate in a government program.^[xv] We also strongly believe that compelling foreign organizations to adopt policies consistent with the government's viewpoint raises important constitutional concerns and undermines the democratic principles for which the United States stands.^[xvi]

Rather than requiring organizations to adopt explicit anti-prostitution policies, the U.S. government could fulfill its goals by permitting organizations that do not have a policy on prostitution to receive U.S. funds. There is bipartisan support in Congress for this solution.^[xvii] The advantage of this approach is that it does not pressure organizations, whether international or domestic, to adopt policies that run contrary to best health-care practices, may have nothing to do with their work or organizational mission, and have the potential to undercut the very purpose of U.S. grants. Such a policy would allow a wide range of organizations to participate in the global struggle against AIDS, while recognizing the importance of freedom of speech and freedom to receive and impart information in promoting the health and well-being of all citizens.

We urge you to act immediately to:

• Request that theDepartment of Justice reconsider its interpretation on the application of the restrictions in the Global AIDS Act of 2003 to domestic grantees, ensuring instead that all programs are consistent with human rights and public health norms and constitutional guarantees of freedom of speech;
• Institute the practice of consultation with a broad range of experts in both the HIV/AIDS and trafficking fields before any agency or office issues program directives interpreting U.S. HIV/AIDS and trafficking laws to ensure transparency in policymaking, consistency with U.S. and international human rights law, and the promotion of best practices in public health;
• Work with Congress to amend the TVPRA and the Global AIDS Act of 2003 so that these laws are consistent with U.S. and international human rights law and with best practices in public health.

We share your concerns about the need to stop the spread of HIV worldwide and to address the needs of trafficked persons. We hope, however, that in the future funding will be distributed to organizations based solely upon their demonstrated capacity to prevent the spread of HIV and human trafficking according to best practices in the fields of public health and human rights, to provide treatment for those suffering from AIDS, and to provide services and support to trafficked persons while simultaneously promoting the basic human rights and freedom of speech of all persons.

Sincerely,

Organizations by Region

Asia and Pacific

• Alternate Visions, Bangkok, Thailand
• Australian Reproductive Health Alliance (ARHA), Deakin - Canberra, Australia
• Center for the Study of Sexualities, National Central University, Chungli, Taiwan
• Centre for Feminist Legal Research, New Delhi, India
• Family Planning Association of New Zealand, Wellington, New Zealand
• Freedom Foundation-India, Centers of Excellence- Substance Abuse & HIV/AIDS, Bangalore, India
• NAPWA (National Association of People Living with HIV/AIDS) Australia, Australia
• Network of Sex Work Projects, Hong Kong
• Pelangi Community Foundation, Batu Caves, Malaysia
• RISE, Peshawar, Pakistan
• Zi Teng, Hong Kong, China

Africa

• Gays and Lesbians of Zimbabwe (GALZ), Harare, Zimbabwe
• Youth Empowered to Succeed (YES),Kisumu, Kenya

Europe/Central Asia

• AIDS Foundation East-West (AFEW), Moscow, Russia
• AIDS Information & Support Center, Tallinn, Estonia
• Anti Trafficking Center, Belgrade, Serbia
• Droits et libertés dans les Eglises, France
• Foundation La Strada, Programme for Prevention of Trafficking in Central and Eastern Europe, Bosnia and Herzegovina
• GAT - Grupo Português de Activistas sobre Tratamentos de VIH/SIDA, Lisbon, Portugal
• Grupo de Trabajo sobre Tratamientos del VIH (gTt), Barcelona, Spain
• Health and Social Development Foundation, Sofia, Bulgaria
• Health Education Association NGO, Yerevan, Armenia
• Hope, Sofia, Bulgaria
• International Community of Women living with HIV/AIDS, London, United Kingdom
• International Drug Policy Consortium, London, United Kingdom
• International Planned Parenthood Federation, London, United Kingdom
• Irish Family Planning Association, Dublin, Ireland
• John Mordaunt Trust, London, United Kingdom
• La Strada, Prague, Czech Republic
• Russian Harm Reduction Network, Moscow, Russia
• Until the Violence Stops, London, United Kingdom
• Women for Women's Human Rights (WWHR) - New Ways, Istanbul, Turkey
• Women in Black, Belgrade, Serbia

Latin America

• Accion Ciudadana Contra el SIDA, Caracas, Venezuela
• Agua Buena Human Rights Association, San Jose, Costa Rica
• Católicas por el Derecho a Decidir, Córdoba, Argentina
• Foundation for Studies and Research on Women, Argentina
• Intercambios Asociación Civil, Buenos Aires, Argentina
• Latin American and Caribbean Council of AIDS Service Organizations, Caracas, Venezuela
• Red Argentina de Reducci—n de Daños (REDARD) (Argentinean Harm Reduction Network), Buenos Aires, Argentina

Middle East/North Africa

• Egyptian Initiative for Personal Rights, Egypt
• Persepolis Harm Reduction NGO, Tehran, Iran

North America

• ACT UP East Bay, Oakland, California, USA
• Action Canada for Population and Development, Ottawa, Ontario, Canada
• Africa Action, Washington, DC, USA
• AIDS Project Los Angeles, Los Angeles, California, USA
• AIDS Taskforce of Greater Cleveland, Cleveland, Ohio, USA
• Amnesty International USA, New York City, USA
• Best Practices Policy Project
• Canadian HIV/AIDS Legal Network, Montreal, Canada
• Canadian Research Institute for the Advancement of Women (CRIAW), Ottawa, Ontario, Canada
• Catholics for a Free Choice, Washington, DC, USA
• Catholics for a Free Choice-Canada, Peterborough, Ontario, Canada
• Center for Health and Gender Equity, Takoma Park, Maryland, USA
• Center for Reproductive Rights, New York City, USA
• Center for Women Policy Studies, Washington, DC, USA
• Center for Women's Global Leadership, New Brunswick, New Jersey, USA
• CHAMP (Community HIV/AIDS Mobilization Project), New York City, USA
• Chicago Recovery Alliance, Chicago Illinois, USA
• Choice USA, Washington, DC, USA
• Eve & The Snake, New York/USA and Brasilia/Brazil
• Feminist Majority Foundation, Arlington, Virginia, USA
• Gay Men's Health Crisis, New York City, USA
• Global Rights, Washington, DC, USA
• Harm Reduction Project, Denver / Salt Lake City, Utah, USA
• HealthGAP (Global Access Project), New York City, USA
• Hepatitis, AIDS, Research Trust, Florence, Colorado, USA
• HIV Advocacy Council of Oregon and SW Washington, Portland, Oregon, USA
• HIV Resource Center, Roseburg, Oregon, USA
• Human Rights Watch, New York City, USA
• International Gay and Lesbian Human Rights Commission (IGLHRC), New York City, USA
• International Planned Parenthood Federation, Western Hemisphere Region, New York City, USA
• International Sex Worker Foundation for Art, Culture and Education ((ISWFACE), Panorama City, California, USA
• Ipas, Chapel Hill NC, USA and 11 country offices worldwide
• National Association of People with AIDS (NAPWA-US), Silver Spring, Maryland, USA
• National Family Planning and Reproductive Health Association, Washington, DC USA
• Sakyadhita International Association of Buddhist Women, Kailua, Hawaii, USA
• Search For A Cure, Boston, Massachusetts, USA
• Sex Workers Project at the Urban Justice Center, New York City, USA
• SisterSong Women of Color Reproductive Health Collective, Atlanta, Georgia, USA
• The Drug Overdose Prevention and Education Project, San Francisco, California, USA
• The Foundation for Integrative AIDS Research (FIAR), Brooklyn, New York, USA
• The Religious Consultation on Population, Reproductive Health and Ethics, Milwaukee Wisconsin, USA
• Treatment Action Group (TAG), New York City, USA
• Unitarian Universalist Association of Congregations, USA
• Washington Office on Africa, Washington, DC, USA
• Women's World Organization for Rights, Literature and Development (Women's WORLD), New York City, USA

Individuals

(Note: Institutional affiliation is provided for identification purposes only.)

• Noor Ayesha, Electoral Support Officer, UNV, Liberia
• Therese Burstow, Needle and Syringe Program Policy Officer, Northern Territory AIDS and Hepatitis Council, Australia
• Dr. Wendy Chapkis, Associate Professor of Women's Studies and Sociology, University of Southern Maine, USA
• Lila Elman, Public Health Programs Assistant, Open Society Institute, New York City, USA
• Tina Gianoulis, member Women in Black, Bainbridge Island; Dyke Community Activists
• Janice Gutman, member Women in Black, Bainbridge Island; Dyke Community Activists; Suquamish-Ollalla Neighbors Association
• Emma Harvey, Project Coordinator, International Human Rights Exchange, Cape Town, South Africa
• Geoff Heaviside, Convenor - Brimbank Community Initiatives Inc., Secretary - International Centre for Health Equity Inc, Member - Australasian Society for HIV Medicine Inc, Victoria, Australia
• Robert Heimer, Ph.D., Center for Interdisciplinary Research on AIDS, Yale University School of Medicine, New Haven, CT, USA
• Sandhya Jain, New Delhi
• Teresa Lanza, Coordinator of Catholics For the Right to Decide, Bolivia, La Paz, Bolivia
• Professor Ann Lucas, San Jose State University, San Jose, California, USA
• Alexandra Lutnick, MA, Research Coordinator, St. James Infirmary, Staff Research Associate II, University of California San Francisco, San Francisco, California, USA
• Anna Marsiana, Working Group Committee, Asian Women Resource Centre for Culture and Theology, Kuala Lumpur, Malaysia
• Sanja Milivojevic, Monash University, Melbourne, Australia
• Veronica Monet, Sex Educator, author of Sex Secrets of Escorts (Alpha Books 2005), member of SWOP-USA, Woodside, California, USA
• Julia O'Connell Davidson, Professor, School of Sociology & Social Policy, University of Nottingham, United Kingdom
• Prisci Orozovich, MPH, HIV/AIDS Researcher, University of California San Diego, San Diego, California, USA
• Edith Rubinstein, Women in Black, Brussels, Belgium
• Dr. Jennifer Suchland, Assistant Professor, Southwestern University, Georgetown, Texas, USA
• Celina Schocken, International Affairs Fellow with the Council on Foreign Relations, USA

References

1. See United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. § 7631(f) (2003) [hereinafter, Global AIDS Act]; Trafficking Victims Protection Reauthorization Act of 2003, 22 U.S.C. § 7110(g) (2) (2003) [hereinafter, TVPRA].
2. See, e.g., Centers for Disease Control and Prevention, U.S. Department of Health and Human Services., Rapid Expansion of HIV/AIDS Activities by National Ivorian Nongovernmental Organizations and Associations Serving Highly Vulnerable Populations in Cote d'Ivoire Under the President's Emergency Plan for AIDS Relief, Funding Opportunity No. 04199, Jul. 2004, at 9 (stating, "[A]ny foreign recipient must have a policy explicitly opposing, in its activities outside the United States, prostitution and sex trafficking…"). See also Bureau of Administration, U.S. Department of State, Anti-Trafficking in Persons, Funding Opportunity No. DOS-GTIP, Mar. 2005, at 11-12 (stating, "U.S. law … prohibits such funds from being used to implement any program that targets victims of severe forms of trafficking in persons involving sex trafficking by an organization that has not stated in either a grant application, a grant agreement, or both, that it does not promote, support, or advocate the legalization or practice of prostitution. It is the responsibility of the primary grantee to ensure these criteria are met by its sub-grantees").
3. Letter from Daniel Levin, Acting Assistant Attorney General, U.S. Department of Justice, to Alex M. Azar II, General Counsel, U.S. Department of Health and Human Services. (Sept. 20, 2004)
4. See Global AIDS Act, 22 U.S.C. ¤ 7631(e) (barring use of funds to "promote or advocate the legalization or practice of prostitution or sex trafficking"); TVPRA, 22 U.S.C. ¤ 7110(g) (1) (barring use of funds to "promote, support, or advocate the legalization or practice of prostitution").
5. See World Health Org. (WHO), Toolkit For Targeted HIV/AIDS Prevention And Care In Sex Work Settings(2004), available at http://www.who.int/hiv/pub/prev_care/swtoolkit/en/
6. See id. at 6 (noting "The diversity of sex work settings requires flexible, locally adapted responses. However, experience shows that HIV prevention in sex work settings should work toward three main outcomes: 1. Increased condom use and safer sex 2. Increased sex worker involvement and control over working and social conditions 3. Reduced STI burden").
7. See UNAIDS, Female Sex Worker HIV Prevention Projects: Lessons Learnt from Papua New Guinea, India and Bangladesh, UNAIDS Best Practice Collection, Nov. 2000, pp. 57-90.
8. See id.
9. Interview by Alice Miller, Columbia University Law School, with Elaine Pearson, Anti-Slavery International, Bangkok, Thailand (July 2004).
10. Interview by Human Rights Watch with Jamaican health worker, Kingston, Jamaica (June 2004).
11. See Michael M. Phillips and Matt Moffett, "Brazil Refuses U.S. Aids Funds, Rejects Conditions," Wall Street Journal, May 2, 2005, P. A3.
12. See U.S. Const. Amend. I.
13. See FCC v. League of Women Voters, 468 U.S. 364 (1984). See also Regan v. Taxation w. Representation of Washington, 461 U.S. 540 (1983) (holding permissible speech restrictions on a government subsidy because other, non-federal contributions could be used to fund prohibited speech).
14. See Rust v. Sullivan, 500 U.S. 173, 196 (1991) (holding that the Government may make a value judgment, implement that judgment by the allocation of public funds, and "leave the grantee unfettered in its other activities" funded by other sources).
15. See West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (invalidating a requirement that children pledge allegiance to the U.S. flag in order to attend public school). See also Speiser v. Randall, 357 U.S. 513 (1958) (holding unconstitutional a requirement that receipt of a tax exemption was contingent on the filing of a loyalty oath to the U.S. Government); Wooley v. Maynard, 430 U.S. 705, 715 (1977), citing Barnette (holding that forcing an individual to be "an instrument for fostering public adherence to an ideological point of view he finds unacceptable … 'invades the sphere of intellect and spirit which it is the purpose of the First Amendment … to reserve from all official control'").
16. See DKT Memorial Fund Ltd. v. Agency for International Development, 887 F.2d 275 (D.C. Cir. 1989) (Ginsberg, J., dissenting).
17. See 108 Cong. Rec. H10287 (2003) (colloquy of Reps. Chris Smith and Tom Lantos during the reauthorization of the TVRPA). Congressman Smith, Republican Vice-Chair of the House International Relations Committee (HIRC), and Congressman Lantos, Ranking Democrat Member on the HIRC, agreed on the proper interpretation of the TVPRA funding restriction related to sex trafficking and prostitution. According to Congressman Smith," an organization can satisfy the prohibition … if it states in a grant application, a grant agreement, or both that it does not promote, support, or advocate such actions since it has no policy regarding this issue."