Court Strikes Down “Gag Rule” on HIV Prevention Activities

Posted on 25 May 2006 at 7:45pm
By Bob Roehr

A federal judge in Washington, D.C., has struck down a legal provision requiring that contractors have a policy explicitly opposing prostitution and sex trafficking in order to be eligible to receive grants for international family planning and HIV prevention activities.

Judge Emmet G. Sullivan found the requirement to be “unconstitutional in violation of the First Amendment.” He permanently banned the government from enforcing that provision in his May 18 decision. The case is DKT International, Inc. v. United States Agency for International Development (USAID).

Social conservatives had inserted the language into the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. It expressed a moralistic stance against sex workers and held the potential to defund groups that have traditionally performed these services, while making more money available to their allies who promote abstinence.

Opponents argued that prevention efforts would have to include outreach to sex workers in order to be effective. Requiring a stricture against prostitution would greatly hinder their activities, they said.

DKT International challenged the restriction in court. It is a nonprofit organization that supports numerous family planning and HIV prevention activities in developing nations, including distributing millions of condoms a year toward those ends.

The company has received many grants from the United States and foreign governments, and from international organizations and foundations. It has a policy that neither opposes nor supports prostitution, and argued in court that “a policy explicitly opposing prostitution will likely result in stigmatizing and alienating many of the people vulnerable to HIV/AIDS the sex workers and may result in limiting access to the group that DKT is trying to reach.”
Dozens of HIV and reproductive services organizations joined in an amicus brief or in memorandums to the court.

Judge Sullivan wrote, “The government’s interest in preventing garbling of its message, maintaining integrity of federal programs and speaking in a single voice cannot result in compelling organizations, like DKT, to parrot the government’s policies.”

He found that the provision “casts too wide a net and is not narrowly tailored. It broadly and impermissibly binds both the private and public funds of DKT. It is not narrowly tailored to further a compelling government interest.”

Furthermore, the government’s case was “undercut” by the act itself, which exempts certain organizations, such as the Global Fund and the World Health Organization, from the anti-prostitution provision.

Philip D. Harvey, president of DKT, called the decision “a major victory for DKT, for free speech and for the integrity and independence of private US organizations.”

This article appeared in the Dallas Voice print edition, May 26, 2006.

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