In 2003, the Congressional legislation authorising the President’s Emergency Plan for AIDS Relief (PEPFAR), entitled the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act. It imposed two conditions on nongovernmental organizations regarding sex work.
Firstly, the Leadership Act stated that no PEPFAR funds “may be used to promote or advocate the legalisation or practice of prostitution.”
Secondly, the Act stated that no funds may go to an organisation “that does not have a policy explicitly opposing prostitution.”
On June 20, 2013, the U.S. Supreme Court issued its opinion on Agency for International Development (AID) et al v. Alliance for Open Society International (AOSI) regarding the second condition.
The Supreme Court ruled that the Policy Requirement violates the First Amendment of the U.S. Constitution “by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program.”
The removal of the Policy Requirement will allow non-governmental organisations to engage fully with sex workers and sex worker organisations and allow them to increase and improve the HIV prevention, care and treatment services that they provide.
However, at present the legal decision applies only to US-based organisations. The Obama Administration should be issuing future policy guidance on if and how the Policy Requirement will apply to foreign-based organizations. We encourage them to do so as soon as possible.
The ruling is a huge victory in the battle to create a world without AIDS and follows a decade of advocacy challenging the provision. The Alliance would like to express its appreciation to the Open Society, Pathfinder, InterAction, and the Global Health Council* (GHC) for their efforts in the legal proceeding over the past years.
* Alliance Executive Director Alvaro Bermejo was and U.S. Director Jason Taylor Wright is a member of the GHC Board.