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The “Antiprostitution Loyalty Oath” was included in the landmark AIDS funding bill passed by Congress and signed by President George W. Bush in July. But in a positive move forward, the U.S. District Court for the Southern District of New York ruled in August 2008 that the policy violates the First Amendment. The Court also granted the motion to add to the lawsuit members of the Global Health Council, including EngenderHealth.
| The antiprostitution loyalty oath mandates that all organizations receiving U.S. funds for international HIV and AIDS work pledge their opposition to prostitution, with this requirement extending even to organizations’ privately funded activities. EngenderHealth argues that the antiprostitution loyalty pledge is a serious infringement of its free speech rights and maintains that the requirement is counterproductive for public health. EngenderHealth and many other U.S. groups work in countries that take a wide array of social, cultural, and legal approaches to sex work. Because sex workers are a marginalized and hard-to-reach population, requiring organizations to comply with the loyalty oath may undermine HIV prevention efforts by contributing to the further stigmatization of the very individuals we are trying to reach. |
Facing legal challenges, the U.S. government had earlier proposed an amended rule that claims to give grantees who object to the antiprostitution oath the option of creating an affiliate entity that would take the pledge in order to receive funding. The court, however, rejected the claims by the government that this rectified free speech concerns and suggested that such requirements would cause undue separation and burden.
In its August ruling, the U.S. District Court for the Southern District of New York issued a preliminary injunction that prohibits the U.S. government from enforcing the policy on the plaintiffs of the case or their member organizations, such as EngenderHealth. Unfortunately, foreign-based organizations are not protected by the U.S. Constitution and must still take the oath.
It is unclear whether the U.S. government will file an appeal. We will keep you posted on any new developments.