Even with the Obama’s new PEPFAR strategy, no changes have been made to the original and the prostitution pledge remains on place.
By Natalie Wittlin*
On Monday, November 23, the U.S. Department of Health and Human Services (HHS) released a notice proposing new regulations for the federal funding of U.S.-based organizations that do HIV/AIDS-related work . The new, proposed guidelines, though slightly different from those issued under the Bush Administration, place the same fundamental restrictions on U.S.-based organizations receiving federal funds . To be eligible to receive any federal funds, U.S.-based organizations that conduct privately-funded activities that do not “explicitly oppose prostitution” are still required to establish an “affiliate organization” to conduct these activities.
The release of these proposed guidelines came eight days before World AIDS Day 2009 (Tuesday, December 1), when Obama announced his five year strategy (2010-2014) for PEPFAR, the President’s Emergency Plan for AIDS Relief, a program initiated by former President George W. Bush in 2003 . The strategy is focused on transitioning from an emergency response to a sustainable response in which other countries lead their respective programs in partnership with the United States and in which HIV/AIDS prevention, treatment, and care are integrated into other health and development-related programs that focus on, for example, reproductive health, family planning, and the eradication gender-based violence.
The executive summary of the strategy specifically notes that certain groups of people, such as sex workers, are stigmatized and particularly vulnerable to infection. As the Washington D.C.-based organization CHANGE (Center for Health and Gender Equity) notes, however, the “anti-prostitution pledge,” instated by the original, 2003 legislation (the United States Leadership Against Global HIV/AIDS, Tuberculosis, and Malaria Act of 2003), remains in effect, as the bill was reauthorized in 2008 (as the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008)  and provides funding through the 2013 Fiscal Year (FY). The original law stated: “No funds made available to carry out this Act, or any amendment made by 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” . Non-U.S. organizations that do not “explicitly oppose prostitution” are completely prohibited from received PEPFAR funds.
The 2003 “Leadership Act” is the law that implements section 7631(f) of the 2003 PEPFAR bill, which prohibits the funding of any organization “that does not have a policy explicitly opposing prostitution” . The guidelines proposed on November 23 amend this “Leadership Act” .
In 2006, three U.S. organizations, represented by the Brennan Center for Justice at New York University School of Law, filed a lawsuit against HHS and the United States Agency for International Development (USAID). A U.S. District Court ruled in favor of the plaintiffs and issued a preliminary injunction, stating that to withhold federal funding from U.S. organizations because they conduct privately-funded activities that do not “explicitly oppose prostitution” is a violation of the U.S. Constitution’s First Amendment . However, a set of HHS guidelines was issued stating that that for a U.S. organization to receive federal funding, any activities that do not “explicitly oppose prostitution” must operate under a separate, “affiliate organization.”
In January 2009, the U.S. Department of Justice, on behalf of HHS, appealed the District Court’s preliminary injunction , but it dropped this appeal in July 2009 and committed to issuing final regulations (on the funding of U.S. organizations that “engage in activities that are not consistent with a policy opposing prostitution and sex trafficking” ) by January 8, 2010. At that point, it will let the court know whether it wants to resubmit the appeal .
The November 23 proposed guidelines only slightly modify those that came before them. The notice of proposed rulemaking says: “The proposed rule relaxes the criteria for recipient-affiliate separation, and simplifies the process for compliance…This proposal eliminates the requirement that recipients prepare and file additional documentation specifically to demonstrate adherence to this policy” . However, the Brennan Center for Justice, in a memorandum issued on November 30, noted that decisions on funding restrictions will still be made on a case-by-case basis and that the vagueness of the proposed regulations makes it extremely difficult for organizations to ensure that they are in compliance .
No changes have been made to the original, 2003 regulations as they pertain to non-U.S. organizations. Non-U.S. organizations must still take an “anti-prostitution pledge” to receive U.S. HIV/AIDS funding. They do not have the option of establishing an “affiliate organization.”
Obama’s new PEPFAR strategy notes: “Most-at-risk populations – including men who have sex with men (MSM), sex workers, and injecting drug users – continue to face stigma that limit their ability to obtain services, contributing to the wider transmission of HIV” . It later states: “[High-quality, low-cost care and treatment] services are responsive to the public health needs of marginalized communities, including injecting drug users, persons in prostitution, and men who have sex with men” . It appears to use the terms “sex workers” and “persons in prostitution” interchangeably, which, to some, might signal a problematic conflation of sex work and coerced prostitution/sex trafficking.
Additionally, the extent to which organizations can work to decrease the stigmatization, marginalization, and vulnerability of sex workers while “explicitly opposing prostitution” is questionable. As Nicole Franck Masenoir and Chris Beyrer from the Center for Public Health and Human Rights at the Johns Hopkins University School of Public Health have noted, “A substantial body of peer-reviewed published studies suggests that the empowerment, organization, and unionization of sex workers can be an effective HIV prevention strategy and can reduce the other harms associated with sex work, including violence, police harassment, unwanted pregnancy, and the number of underage sex workers” . A 2008 policy brief issued by CHANGE also noted that PEPFAR’s funding restrictions “run contrary to best practices in public health and undermine efforts to stem the spread of HIV” .
Obama’s new strategy emphasizes the importance of using evidence-based, best practices and notes that it is “expanding its current partnerships with implementers, researchers, and academic organizations to improve the science that guides this work” . Whether such partnerships could result in the elimination of the “anti-prostitution pledge” remains to be seen.
If your agency would like to submit comments on HHS’s notice of proposed rulemaking, visit http://www.regulations.gov, search for “RIN 0991-AB60,” and submit comments on “Organizational Integrity of Entities Implementing Leadership Act Programs and Activities” by December 23, 2009.
 U.S. Department of Health and Human Services. (Nov. 23, 2009). 45 CFR Part 89, RIN 0991-AB60, 61097 Action: Notice of proposed rulemaking. Organizational Integrity of Entities Implementing Leadership Act Programs and Activities.
 The U.S. President’s Emergency Plan for AIDS Relief Five-Year Strategy – Executive Summary of PEPFAR’s Strategy
 P.L. 108-25, the United States Leadership Against Global HIV/AIDS, Tuberculosis, and Malaria Act of 2003
 H.R. 5501, the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008
 Open Society Institute. (2006, May 9). Judge Rules in Favor of AOSI, Says USAID Pledge Rule Is Unconstitutional. Retrieved from http://www.soros.org/initiatives/health/focus/sharp/news/pledge_20060509
 Masenior, N. F., & Beyrer, C. (2007). The US Anti-Prostitution Pledge: First Amendment Challenges and Public Health Priorities. PLoS Med, 4(7), e207.
 Jacobson, J. (2009, July 22). DOJ Drops Appeal of ‘Prostitution Pledge’ Injunction. RHRealityCheck.org. Retrieved from:
Also available at HuffingtonPost.com:
 Abel, L., & Diller, R. (Nov. 30, 2009). Memorandum re: HHS’ proposed regulation. Brennan Center for Justice at NYU School of Law.
 Center for Health and Gender Equity. (August 2008). Implications of U.S. Policy Restrictions for HIV Programs Aimed at Commercial Sex Workers. Retrieved from: http://genderhealth.org/pubs/APLO.pdf
* Natalie Wittlin is from the SPW secretariat at Columbia University Center for Gender, Sexuality and Health