Striking down life-threatening prejudice

The decision implies a victory for all the people who have suffered and continue to suffer any kind of state-sponsored stigma: the U.S. government can no longer require that U.S. organizations concur (the policy may still be applied to organizations outside the U.S.).

The Center for Health and Gender Equity (CHANGE) had opposed the APLO not only as an unconstitutional violation of an organization’s free speech rights but also as a violation of the human rights of sex workers to self-protection and health care. Just as critically, it has also been a barrier to effective work against the pandemic.

What sex workers will turn for help or treatment to an organization that vows to eliminate them? What program to curb the spread of HIV can succeed without enlisting sex workers? They are among the groups most at risk of HIV infection; their cooperation or lack of it can determine a program’s reach and a country’s future. Isn’t it irresponsible, if not dangerous, to exclude them?

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Programs in dozens of countries have engaged sex workers successfully as part of the solution to the AIDS crisis. Brazil turned down $40 million in U.S. funding in 2005 to avoid alienating sex workers there, who have become critical partners in developing and carrying out effective approaches to curbing the pandemic.

The oath was written into law when some legislators saw a chance to impose their ideology of purity at the start of PEPFAR, the enormously beneficial President’s Emergency Plan for AIDS Relief. Based purely on prejudice, it had nothing to do with effective practices, and in fact undermined them by discouraging their application to sex workers. It never applied to funding for international groups such as the World Health Organization, and the fact it had such “practical” exceptions was another argument against it.

Strange bedfellows such as the progressive ACLU and the conservative Cato Institute submitted amicus briefs to the Supreme Court supporting the free-speech argument. Deans of public health schools and NGOs including CHANGE documented the public health damage. In 2012, research presented at the International AIDS Conference showed that the oath had caused many U.S. groups to limit or eliminate programs targeting sex workers for fear of losing their funding. Clearly the oath was not only damaging the U.S. role as a human rights defender, it was damaging the global fight against HIV/AIDS.

When the case was argued last spring, Justice Alito surprised many observers when he said it was a “dangerous proposition” to “condition federal funding on the recipient’s expression of agreement with ideas [with] which the recipient disagrees.” Today he was with the majority; Justice Kagan recused herself, having worked on the case when she was Solicitor General, and Justices Thomas and Scalia dissented. “The First Amendment,” Scalia wrote, “does not mandate a viewpoint-neutral government.”

No, but neither does the First Amendment allow the government to mandate anyone else’s viewpoint – or their silence – as a condition of receiving government funding.

Now U.S. organizations fighting HIV will be able to use evidence-based interventions where they count most, free from others’ political agendas. This should boost our fight to get ahead of HIV at last. If we are ever to have an AIDS-free generation, there can be no place for discrimination.

Sippel is the president of the Center for Health and Gender Equity (CHANGE), a Washington, D.C.-based organization that advocates for global women’s health and rights in U.S. policy. She lives in Washington, D.C..