Sex-Workers, HIV and The Constitution: AID v. Alliance for Open Society International (#UChiLawSCt)

Kimberly Rhoten, '13, and Hannah Garden-Monheit, '14
June 25, 2013

After a lengthy legal battle in the case of AID v. Alliance for Open Society International, Inc., the Supreme Court last week held unconstitutional the “anti-prostitution provision” of the United States Leadership Act of 2003. The Act required that non-governmental organizations in the U.S. and abroad  seeking U.S. government funding for HIV/AIDS prevention adopt a policy “explicitly opposing prostitution and sex trafficking. The New York-based Alliance for Open Society International, the named-plaintiff in the case, argued before the Supreme Court this past April that the funding requirement violated the group’s right to free speech.

The outcome of the decision stands to have far-reaching implications for sex-worker organizations across the globe. One such organization, Durbar, has worked for over twenty years to prevent HIV/AIDs transmission amongst the sex-worker community in the heart of the red-light district of Kolkata. Although initially established by medical professionals in partnership with the Indian government as a purely epidemiologic intervention, the organization today employ anything but traditional medical prevention techniques.

Today, the organization primarily advocates for the unionization of sex workers—a strategy that has not only had significant effects on the HIV rates in Kolkata but has also improved the safety and respect of the sex workers in the community. In March of this year, we traveled to Kolkata to speak with the members of Durbar. The directors of Durbar (themselves current and former sex workers) have undertaken impressive self-regulatory efforts to reduce HIV rates and combat trafficking. Peer health counselors  educate fellow sex workers in the community about condom use and safety precautions against violence. Inspectors from the union also conduct daily visits to Kolkata brothels looking for any potentially underage or unwillingly trafficked sex workers. According to Arvind Pandey of the National Institute of Medical Statistics, the Indian state of West Bengal where Durbar is active has one of the lowest HIV/AIDS rates in the country.

Despite the success of Durbar and other such sex worker-friendly organizations across the globe, the Leadership Act’s “anti-prostitution provision” prevented the funding of such groups for nearly ten years. In oral arguments to the Supreme Court this past April, the Alliance for Open Society urged the Court to consider evidence that the “anti-prostitution provision” not only on harmed free speech rights, but also significantly impaired HIV/AIDs prevention efforts. The provision forced medical professionals of the NGOs to take an affirmative stance against prostitution, a position that alienates some members of the community the NGOs attempt to serve. What’s more, prostitution  is legal in many countries. The government argued that the spending restriction is a permissible use of federal funding that furthers the U.S.’s objective of opposing prostitution and sex trafficking.

Today, the Supreme Court’s decision has opened new financial doors for organizations like Durbar and with it potential cooperative efforts with sex worker communities globally. As the experiences of sex worker unions, such as Durbar, demonstrate, the empowerment of sex workers may in fact be an effective method  to prevent sex trafficking as well as combat the HIV/AIDS epidemic – two important U.S. foreign policy objectives. Whether the Supreme Court’s decision today will impact the global rates of HIV/AIDs, only time will tell. However, we can be assured that organizations that cooperate with sex worker communities, like Durbar, will continue to be an essential component of the international fight against HIV/AIDs and other sexually transmitted diseases.

Hannah Garden-Monheit BA 2007, Grinnell College; JD Candidate 2014, The University of Chicago Law School

Kimberly Rhoten BA 2009, Uni