Pandemic Politics: Race, Sex, and the Supreme Court

(Editor’s Note: This article is part of a special Just Security “Racing National Security” symposium edited by editorial board member Matiangai Sirleaf. The goal of the symposium is to render race visible in national security to shift the dominant paradigm toward addressing issues of racial justice.”)

Thanks to Black Lives Matter and other activists in the fight for prison and police abolition, we are now engaged in a global discussion about decarceration and descecuritization of social services, including healthcare. The ongoing debates about the role of policing and the state are heightened by the ongoing COVID-19 pandemic. The novel coronavirus revealed, in the most brutal ways, that inequality fuels pandemics and makes people more vulnerable to sickness. Coronavirus is striking hardest at the lives of racial minorities and the poor.

COVID-19 is not the only pandemic fueled by inequality. As the AIDS epidemic has increasingly affected poor, Black and Brown people, including people in the Global South, widescale attention to HIV has decreased. Gender contributes to the erasure of this ongoing epidemic. HIV has become not only more feminized, it has also taken hold among some of the most marginalized populations: sex workers, drug users, and LGBTQ people.

Public health programs delivered in the mode of harm-reduction, or mitigating the harms of certain risk activities rather than eliminating them, have been key to both addressing the health needs of marginalized groups, and, in turn, the broader population. Yet, in many jurisdictions, the underlying risk behavior, including drug use and sex work, is illegal. This creates a conflict between harm-reduction services and criminal laws. This is exemplified by the case of sex work in which harm-reduction programs rub against international agreements on transnational crime and trafficking, including the Palermo Protocol, and U.S. domestic law including the Trafficking Victims Protection Act. Where jurisdictions criminalize the purchase and sale of sex work, harm-reduction programs are recast as aiding and abetting in criminal activity.

The Supreme Court waded into debates on harm-reduction, sex work, and crime control for the second time when they revisited and clarified issues related to the U.S. government funding of sex work projects in their June 29 decision, USAID v. Alliance for the Open Society Institute (AOSI II). Veiled in the doctrine of the First Amendment, the decision ignores the complex racial history of attempts to regulate sex work and disease simultaneously. The outcome makes it harder for harm-reduction practitioners in the Global South to work on behalf of groups impacted by HIV.

Crime Control or Harm-Reduction?

AOSI II revisits a question in AOSI I, decided in 2013: should the U.S. government be able to force organizations receiving United States Agency for International Development (USAID) funding to sign a pledge committing them to the U.S. government position on prostitution and sex-trafficking?

The events that lead to AOSI I and II, began when the U.S. government enacted the “anti-prostitution loyalty oath” (APLO) as part of the 2003 Leadership Act for HIV/AIDS, TB, and Malaria (Leadership Act). The legislation made the U.S. government the world’s largest bi-lateral donor to efforts to combat the spread and effects of HIV/AIDS.

The APLO has two conditions laid out in the “limitation” clauses of subsections (e) and (f) of Title III of the Act. First, that U.S. government money may not be used to promote or advocate for the legalization of prostitution or sex-trafficking. Second, that recipient organizations must have a policy explicitly opposing prostitution and sex trafficking. The second of these two conditions is known as the “pledge requirement.”

The APLO created immediate problems in the delivery of health care services. Rates of HIV among sex workers skyrocketed in the early days of the epidemic (and in some communities continue to stay high). By 2003, public health programs were already dedicating time and resources to sex workers who were (and continue to be) extremely vulnerable to contracting HIV. Sex workers were also organizing, and through political mobilization, peer-education programs, and service delivery, successfully began to decrease rates of transmission. Sex workers were so effective at responding to HIV and helping manage the epidemic that of their efforts were identified as “best practices” in addressing HIV/AIDS by global institutions and, ironically, by the U.S. government itself. In a special issue of The Lancet, experts found that decriminalizing sex work would be the most effective way to slow the spread of HIV.

The problem: the U.S. government definition of sex-trafficking treats all prostitution as trafficking. Pursuant to the anti-prostitution loyalty oath requirement, evidence-based harm-reduction programs that provided condoms and services to sex workers – programs key to ending the spread of the epidemic – were recast as acts aiding and abetting sex trafficking. The U.S. government listed the Leadership Act on the State Department website as an anti-human trafficking initiative. The conflict between sex workers and anti-trafficking efforts was heightened further as the U.S. government also ramped up a broader set of anti-trafficking initiatives mandating that countries end trafficking and report back to the U.S. government. In response, some countries passed laws and more aggressively sought to prosecute “traffickers.”

In this quagmire of laws prohibiting the consensual purchase and sale of sex and anti-trafficking legislation, harm-reduction programs serving sex workers suffered. Programs shuttered as funders and organizations did not want the taint of being associated with a crime. Peer-educators were arrested and services disrupted. Public health advocates, harm-reduction practitioners, and researchers watched as the U.S. government began to defund sex worker organizations. Importantly, the APLO meant that sex worker organizations had to take a position explicitly opposing the population they served.

To put it simply, rather than creating the legal conditions necessary to provide essential public health services, including decriminalizing sex work, the U.S. government made it harder for sex workers to serve communities and advocate for the legal changes necessary to make them safer.

The Race and Gender Politics of AIDS and Anti-Trafficking

The immediate impact of this aid condition disenfranchises many sex workers in the Global South, particularly in the African and South Asian contexts. The racialized impact of this is clear. What isn’t as obvious is the long history of anti-trafficking efforts that led us to the APLO. Since at least the 19th century, concerns about public health have been used to justify the regulation of sex work in an effort to end the spread of disease and regulate migration. Ideas about White slavery and a moral panic about White women being transported for sexual exploitation to brothels, became central to the discourse around prostitution in the United States and Britain. Throughout the 19th and early 20th centuries, the idea of the White slave provided the fodder needed to ramp up policing and surveillance. In Britain, for example, the Contagious Diseases Acts of the 19th century were mobilized to regulate sex work in the U.K. and the colonies. In the United States, laws designed to exclude the Chinese also took on the veneer of managing the spread of disease through banning the immigration of women purported to be sex workers.

By the early 20th century, in the United States, the fear of White slavery’s existence motivated a range of legal and regulatory interventions including the 1910 Mann Act. As described by historian Jessica Pliley, for example, it was this focus on White slavery that provided the early fodder for a national crime fighting agency that we now know as the FBI. The inclusion of the Leadership Act in the U.S. government’s list of anti-trafficking efforts places AIDS funding, and its conditions, in a lineage of legal interventions that tangle concerns for the spread of disease with ending prostitution and sex-trafficking. Transformed for our contemporary moment, the discourse of rescuing White women is reconfigured to rescuing “innocent” victims of sexual exploitation in the Global South. This reframing of victimhood and innocence is pushed by the advocates who support the APLO, which includes a set of strange bedfellows – not only religious conservatives, but also a subset of American feminists who believe that harm-reduction efforts have hurt vulnerable women.

AOSI v. USAID II

You wouldn’t know this history, or how detrimental the APLO policy has been to the lives and safety of already-vulnerable sex workers reading the Supreme Court’s decision. The majority opinion – authored by Justice Kavanaugh, and joined by Justices Thomas, Roberts, Alito, and Gorsuch – clarifies the First Amendment doctrine left unclear in AOSI I. In that case, the Court found the pledge requirement to violate the First Amendment. The Court did not, however, touch on the specific issue of the constitutionality of preventing organizations from advocating for the legalization of prostitution. Confusion remained concerning the application of the law and associated constitutional protections to foreign affiliates of U.S. organizations when such affiliates share branding, mission and voice. The Supreme Court revisited this question in AOSI II.

In AOSI II, the conservative justices ultimately sided with the U.S. government, finding that foreign affiliates of U.S. organizations do not have the benefit of constitutional protections. The dissent, authored by Justices Breyer, Ginsburg, and Sotomayor, came to the opposite conclusion, reasoning that it is necessary to provide First Amendment protections to affiliate organizations in part because American speakers do not forfeit their constitutional rights to speech simply because they are speaking through a foreign affiliate. The dissenting justices noted that such a policy would impede the work that American organizations are doing. This, in turn, would muddle the effectiveness of the work HIV organizations are trying to do.

What is lost in the back and forth about the protections offered by the First Amendment is how the denial of these constitutional protections will negatively affect the lives of people who desperately need harm-reduction services and healthcare by forcing non-U.S. based organizations to parrot the U.S. government position on sex work. What is erased entirely is the long history of racial and demographic concerns that drive anti-trafficking lawmaking on which the APLO partially derives its logic.

The HIV/AIDS epidemic continues. Existing laws, including those that criminalize sex work, impede service delivery. Organizations need U.S. aid money for harm-reduction services and advocacy. Pursuant to the anti-prostitution loyalty oath, such organizations may be denied funds unless they speak out against the very population they serve. Despite the ongoing COVID-19 pandemic’s stark demonstration of the deathly consequences of inequality, the Supreme Court has ensured that critical HIV/AIDS services will be denied to some of those most in need of them.

Image: Sex workers on the street wait wearing face masks outside a house where members of the Miluska Life and Dignity Association, a local umbrella group caring for sex workers distribute daily meals from a communal kitchen in downtown Lima, Peru, on May 28, 2020. With no possibility of making a living during the pandemic, Peruvian sex workers have organized a soup kitchen in order to survive with their children. (Photo by SERGI RUGRAND/AFP via Getty Images)

 

About the Author(s)

Aziza Ahmed

Visiting Professor of Law, Harvard Law School. Follow her on Twitter (@AzizaAhmed).