Gender & Sexuality Law Blog

I attended the oral argument this morning in the Second Circuit in Alliance for Open Society International v. USAID, a case brought by the Brennan Center challenging the 2003 Bush era regulations that required any entity receiving USAID under the Global AIDS Act to sign a pledge that “no funds made available to carry out this Act … may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.”  22 U.S.C. Sec. 7621(f).  It also prohibits recipients from saying or doing anything that the Government deems “inconsistent with [an] opposition to
prostitution,” 75 Fed. Reg. 18,760 (Apr. 13, 2010).

The lawsuit claims that the “anti-prostitution pledge” requires Plaintiffs to espouse the government’s viewpoint on prostitution, condition Plaintiffs’ eligibility for public funds on holding favored beliefs, and prohibit Plaintiffs from saying or doing anything contrary to the government’s viewpoint with their private funds. The complaint is here.

The government itself has trouble explaining exactly what recipients of Global AIDS Act money must do to comply with the pledge, assuming they’re willing to sign it.  The government has said that beyond a prohibition on advocating for a ban on legalization of sex work, the pledge may, MAY, also include a ban on advocating for a reduction in penalties for sex work, or even helping sex workers unionize.  So too, any work helping sex workers to prevent police abuse might also violate the act if were merely a fig leaf for legalization.  Worse yet, even using the term “sex work” or “sex worker” might violate the Act since the underlying politics of these terms might indicate support or legalization.

Read the complaint and other documents in the lawsuit describing the real and anticipated problems that health advocates working with sex workers, oops, prostitutes will have in both accomplishing their harm reduction mission and complying with the pledge.  They’re all available here.

In 2006 the plaintiffs won in the trial court – opinion here – and it’s been up and back to the Second Circuit, and the argument today was on whether the Obama Administration’s April 2010 interpretation of the pledge requirement cured the plege of any constitutional problems.

Hearing the case were Judges Chester J. Straub, Rosemary Pooler, and Barrington Parker Jr.  Arguing for the Brennan Center was Rebekah Diller and for the government was Ben Torrance (Columbia Law School ’00).

Judge Barrington D. Parker, Jr.

Shortly after Torrance got started he was interrupted by Judge Parker who asked him: “Could the government require organizations to write into their charter that marriage is between a man and wife, on the grounds that a major spread of AIDS is homosexual conduct?”

Torrance hemmed and hawed, and returned the discussion to the government’s judgment that there is a strong causal relationship between prostitution and HIV transmission.

Shortly thereafter Parker lept in again: “What does it mean to oppose prostitution?  If OSI works in the back streets of Mumbai, can it work with street workers and organize them not to work with customers who don’t use condoms?”

Torrance: “Uh … it’s complicated.”

Parker: “Give me a better answer.”

Torrance: “If it’s just advocating for condom usage, that’s ok. But they can’t advocate for legalization of prostitution.”  (It was amazing to see an Assistant U.S. Attorney articulating governmental AIDS policy on the fly.)

Parker: “But the restriction is much broader than that.  Must an OSI intern on the streets of Mumbai cable Washington to get ok before proceeding in her work?”

Torrance just kept repeating that they couldn’t advocate for the legalization of prostitution and Parker kept getting more frustrated.

Judge Parker later posed two additional scenarios that illustrated the vagueness of the regulation: A public health worker who had pledged to oppose the legalization of prostitution, but in her work in a particular community felt that the best way to deal with abusive pimps was to unionize.  Or another one was working in the back allies of Kazakhstan and the worker determines that the best way to stop the spread of HIV is to ease government restrictions on prostitution.

To both these scenarios Torrance replied, “it depends.  There are shades of grey.  This is a judgment for Congress, not for the agency receiving the funds.”

Not a good day for Ben Torrance, all in all.  He did the best he could, but the bench was pretty hostile to his arguments.

Rebekah Diller argued for the plaintiffs and was, in my view, masterful.  Reversing common gender stereotypes, she commanded the podium, the courtroom and the constitutional law with a firm confidence that was less in evidence in Torrance’s argument and demeanor.  Much of her time was taken up with questions from Judge Straub on what questions the court actually had to decide.  Judge Parker asked her what projects the groups couldn’t do on account of the pledge and she made reference to problems that Pathfinders International has working with sex workers in India who want to resist police abuse, or participating in harm reduction meetings in countries such as Brazil where sex work is not criminalized.  SOme of these groups have been investigated by Congress for the work they’ve done in good faith compliance with the plegde, she told them.

Overall, the day looked good for the Brennan Center, OSI and their partners working to overturn the anti-prostitution pledge.  We’ll see.