Last week the Supreme Court held that the federal government cannot force organizations to maintain a policy explicitly opposing prostitution as a pre-condition to obtaining funds to combat HIV/AIDS worldwide. The decision is widely read as a victory for freedom of expression, since the Court declared that the United States Leadership Act Against HIV/AIDS’s condition to receive funds violated the First Amendment. First Amendment decisions are not always compatible with general feminist views. This time, however, the decision has the potential to lend support to women’s rights.
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 was passed as part of a strategy for the U.S. to become a world leader in combating these pandemics. The Act imposed two conditions on organizations interested in obtaining funds: 1) the funds could not be used to promote the legalization or practice of prostitution and sex trafficking, and 2) funds could not be used to provide assistance to groups or organizations that did not have an institutional policy that explicitly opposed prostitution and sex trafficking. The second condition was held unconstitutional, but both conditions are flawed in that they treat prostitution and sex trafficking as two sides of the same coin. By mistakenly conflating sex trafficking and prostitution, the illusion that combating sex trafficking will free women from prostitution is perpetuated. Arguing in favor of the legalization of sex trafficking amounts to promoting slavery, while working for the legalization of prostitution is something different entirely. Numerous perspectives exist as to whether women are better off when prostitution is legal or illegal. One would be hard pressed to find a sex slave who argues in favor of sex trafficking, but many sex workers advocate for the legalization and dignified treatment of their work.
This decision allows for more pragmatic strategies on the fight against HIV/AIDS; always a good sign. The decision will also allow for organizations dealing with HIV/AIDS to separate positions between sex trafficking and prostitution. Principled positions may sound good on paper, but, especially when dealing with global problems, pragmatism must prevail. What works on one side of the Earth may not work on the other. Sex workers usually argue that legalization and regulation of their occupation would allow them access to better health services and safer work environments. The essential exploitation that comes with prostitution is always up for discussion. While we have that discussion, though, we may want to ensure that the least number of women have to work in unsafe conditions, subject to diseases and gender violence. As I usually tell students, we all want world peace, but it is unlikely we will get it anytime soon. In the meantime, we must be pragmatic about what we can really get. A good start is to work side by side with sex workers in combating both HIV/AIDS and sex trafficking. While the justices of the Supreme Court may not have had this in mind when they signed their opinion, the decision may help to treat prostitution and sex trafficking differently.