Federal Appeals Court rules in favor of U.S. policy requiring groups that receive HIV/AIDS funding to condemn commercial sex work

The U.S. Court of Appeals for the District of Columbia on Tuesday ruled that a U.S. policy requiring recipients of federal HIV/AIDS service grants to pledge to oppose commercial sex work does not violate the groups' First Amendment right to free speech, the AP/International Herald Tribune reports (Jakes Jordan, AP/International Herald Tribune, 2/27).

The Department of Justice in October 2006 filed an appeal with the District of Columbia Appeals Court over a lower court ruling in May 2006 by U.S. District Judge Emmet Sullivan that the policy was unconstitutional.

The Bush administration in June 2005 notified U.S. organizations providing HIV/AIDS-related services in other countries that they must sign the pledge to be considered for federal funding.

The policy stems from two 2003 laws, including an amendment to legislation (HR 1298) authorizing the President's Emergency Plan for AIDS Relief that prohibits funds from going to any group or organization that does not have a policy "explicitly opposing prostitution and sex trafficking." DKT International, a not-for-profit organization that provides family planning services in 11 countries, sued USAID over the policy.

DKT officials said that they would not sign the pledge because the group runs condom distribution programs for sex workers in Vietnam and that signing the pledge would stigmatize and alienate its clients.

DOJ in its appeal called the policy "highly germane" to the overarching objective in curbing the spread of HIV.

The appeal said, "Congress could reasonably determine that the government's efforts to stamp out prostitution and sex trafficking would be most successful if HIV/AIDS services are provided by organizations that affirmatively oppose two underlying causes of the disease" (Kaiser Daily HIV/AIDS Report, 10/11/06).

U.S. Circuit Judge Raymond Randolph on Tuesday in a 10-page ruling reversed the lower court's decision. In his ruling, Randolph wrote that Congress has authorized the Bush administration to assist nongovernmental organizations such as DKT "on such terms and conditions as the president may determine."

He added, "The act does not compel DKT to advocate the government's position on prostitution and sex trafficking; it requires only that if DKT wishes to receive funds, it must communicate the message the government chooses to fund.

This does not violate the First Amendment." Calls to DKT's offices in the district were not returned immediately on Tuesday, according to the AP/International Herald Tribune (AP/International Herald Tribune, 2/27).

The ruling is available online.