Updated with Recent Findings and Developments– August 2008:In May 2003, Congress passed the United States Leadership against HIV/AIDS, Tuberculosis, and Malaria Act (Global AIDS Act). The U.S. Global AIDS Act bars the use of federal funds to “promote, support, or advocate the legalization or practice of prostitution.”
The act also requires organizations receiving U.S. global HIV/AIDS funding to adopt a specific organization-wide policy opposing prostitution. This organization-wide, antiprostitution pledge requirement was offered by Congressman Christopher Smith (R-NJ) as an amendment to the 2003 Global AIDS Act during committee mark-up of the bill in the House of Representatives. Congress exempted the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization (WHO), International AIDS Vaccine Initiative, and any “United Nations agency” from this pledge requiremet.
The pledge requirement was first applied to foreign non-governmental organizations only5 because the Department of Justice (DOJ) concluded that it would be unconstitutional to apply it to U.S.-based organizations, which enjoy the full protection of the First Amendment. DOJ later reversed itself, and in June 2005, the U.S. Agency for International Development issued a directive requiring that funding for AIDS programs be given only to those organizations – both U.S. and foreign – with policies explicitly opposing prostitution and sex trafficking.
As a result of evidence-based advocacy by U.S. nongovernmental organizations exposing the public health impact of the “prostitution pledge,” legislators struck the pledge in original draft legislation to amend and reauthorize PEPFAR in early 2008. However, House leaders retained the requirement after closed door negotiations with the White House. The policy was included in the final reauthorization legislation passed by the full Congress and signed by President Bush in July 2008.