Bay Area Reporter - May 25, 2006
Bob Roehr

Judge Emmet G. Sullivan found the requirement to be "unconstitutional [and] 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.

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

Opponents argued that prevention of those diseases 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. It has received many grants from the U.S. and foreign governments, international organizations, and foundations.

The agency 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/AIDS and reproductive services organizations joined in an amicus brief or memorandums to the court.

In his ruling, 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 exempt certain organizations, such as the Global Fund and the World Health Organization, from the anti-prostitution provision.

DKT President Philip D. Harvey called the decision "A major victory for DKT, for free speech, and for the integrity and independence of private U.S. organizations."

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