The Supreme Court's Critical Call on Prostitution and HIV

This story originally appeared in The Atlantic on June 25, 2013.

By Celeste Watkins-Hayes

Gina Stevens is a 41-year-old mother in Chicago who was diagnosed with HIV in 2000. She has been homeless numerous times over the past 15 years. Unable to get or keep a job because of her lack of address, she turned to prostitution.

The Supreme Court overturned a 2003 federal law last week stating that any organization accepting U.S. funds to combat HIV/AIDS and related diseases overseas must explicitly denounce prostitution as a condition of receiving funding. Writing for the 6-2 majority (Justice Kagan recused herself), Chief Justice John Roberts stated that while government can restrict the ways that funds are spent, it cannot require organizations to "pledge allegiance to the government's policy of eradicating prostitution." Compelling grant recipients to adopt a particular belief as a condition of funding is an affront to their free speech rights.

While one has every right to object to prostitution, this is not only a smart legal decision but a smart public health one as well. The United States is spending $60 billion to combat infectious diseases around the world. According to a 2012 UNAIDS Report on the global AIDS epidemic, female sex workers are 13.5 times more likely to be living with HIV than other women.

"Although encouraging progress has been made in stabilizing HIV prevalence and promoting condom use among workers in sex work," the report states, "substantially greater gains will be needed to halve the sexual transmission of HIV among sex workers by 2015."

There are women like Ms. Stevens all over the world.

Forcing non-profit organizations that are doing AIDS prevention and treatment work to explicitly condemn prostitution may lead sex workers to stay away from services for fear of stigma or worse, prosecution. Further, service providers at these organizations know that part of their job entails having frank conversations about the realities of prostitution and their potential implications for the AIDS pandemic.

Having to explicitly state opposition to prostitution as a condition of funding may prevent those discussions from happening. These providers grapple with how to keep all populations safe, not just those engaging in legal and socially desirable behavior. As a result, the very people who need the most access to HIV preventive and treatment measures may not receive them, driving them even deeper underground.

As principal investigator of the Health, Hardship, and Renewal Study, my team and I have interviewed more than 100 women living with HIV/AIDS in the Chicago area. Not all women living with HIV have a history of sex work, nor do all sex workers have HIV/AIDS. But more than 20 percent of the women we interviewed found themselves turning to sex work at some point in their lives to make ends meet or while in the throes of drug addiction.

Ms. Stevens was one of those women.

What proved critical for the women that we studied to get clean, find other ways to feed their families, and proactively manage their health was their access to HIV/AIDS non-profit organizations that offered HIV testing, helpful information to protect themselves and avoid spreading the virus to others, and a network of supporters to assist them every step of the way. Fortunately, HIV organizations operating in the U.S. have not been required to make an anti-prostitution pledge to receive federal funding.

But imagine if upon entering these institutions, often scared and stigmatized, women like Gina encountered messages that explicitly condemned their behavior and implicitly suggested that they were not welcome to come through the door. Numerous opportunities to test and diagnose; educate about safe sex practices; and offer economic, medical, and social support that could be life-changing would be lost as the women turned around and headed the other way.

By the time we met her, Ms. Stevens had completed a drug rehabilitation program, was no longer engaged in sex work, and had found long-term housing with the help of several HIV/AIDS organizations in the city. She now works as a server at a restaurant, making $800-$1,000 a month plus tips.

Even though Ms. Stevens still struggles to make ends meet in her new job, the connections to HIV/AIDS services that feel supportive and non-judgmental provide her with critically important resources such as health care, a psychotherapist, Narcotics Anonymous meetings, and legal assistance. But these organizations have offered something much more valuable to her.

"I got peace of mind," she explains. "I keep my self-respect, my self-dignity. [When I go to work], I don't have to worry about if I'm even going to live through this. I hated doing something that I didn't like doing. Because prostitution, I just -- I had to get high in order to even go out to do that. Now prostitution and drugs are no longer an option."

I am not suggesting that we ignore the serious ethical, legal, and social concerns that sex work raises. There absolutely is a place for discussions about eradicating sexual exploitation wherever it rears its head. But to attack the problem by requiring HIV/AIDS organizations to explicitly and actively oppose prostitution as a condition of funding, rather than allowing them to take a neutral stance that allows them to focus first and foremost on risk reduction, is counterproductive in the fight against HIV/AIDS and other sexually transmitted diseases. The effectiveness of the programs, and the utility of our public funding, would be compromised. The Supreme Court took an important step in protecting these crucial goals.

- Celeste Watkins-Hayes is an associate professor of African-American studies at Northwestern University.