MPact Slams U.S. Supreme Court for Upholding PEPFAR’s Anti-Prostitution Loyalty Oath

When Congress passed, and George W. Bush signed into law, the President’s Emergency Plan for AIDS Relief (PEPFAR) in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, the law contained a draconian “anti-prostitution loyalty oath” (APLO) provision which requires all recipients of PEPFAR funding to “have a policy explicitly opposing prostitution.” Specifically, the anti-sex worker oath states that:

• No funds “may be used to promote or advocate the legalization or practice of prostitution or sex trafficking”; and

• 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.”

That provision became the subject of a lawsuit that ended up at the Supreme Court. In 2013, SCOTUS ruled that the APLO unconstitutionally impinged upon the First Amendment’s guarantee of free speech by requiring that an organization receiving PEPFAR funding adopt the APLO. Thus, the Court held that Congress cannot require a U.S.-based PEPFAR-recipient to adopt the APLO as a condition of receiving funding.

However, on June 29, 2020, in USAID v. Alliance for Open Society International Inc., the Court ruled in a 5-to-3 decision (Justice Kagan recused herself because she had worked on PEPFAR when she served in the Justice Department before joining the court) that upheld the provision of PEPFAR that requires foreign affiliates of U.S.-based health organizations to denounce prostitution as a condition of receiving funds to fight AIDS around the world. Trump-appointed Justice Brett Kavanaugh wrote for the Court’s conservatives, stating that “plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad possess no rights under the U. S. Constitution.”

The Global Network of Sex Work Projects (NSWP) has opposed the APLO from its inception. The NSWP has continually condemned the APLO’S conflation of sex work and human trafficking because it denies agency to sex workers and leads to ineffective policies that fail to address the root cause of HIV risk and violence among sex workers. Dr. George Ayala, the Executive Director of MPact, stated, “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 workers.”

—Reporting by Hank Trout

Hank Trout, Senior Editor, edited Drummer, Malebox, and Folsom magazines in the early 1980s. A long-term survivor of HIV/AIDS (diagnosed in 1989), he is a forty-year resident of San Francisco, where he lives with his husband Rick. Follow him on Twitter @HankTroutWriter.