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Do you think the Supreme Court didn’t issue a big ruling today? Think again.

June 20, 2013

By Erin Fitzgerald, Urvashi Vaid Research Fellow

Another day has come and gone with many LGBT folks waiting with bated breath to hear a Supreme Court decision on the Defense of Marriage Act (DOMA) and Proposition 8. These two decisions will profoundly affect the daily lives of many people in the LGBT community in the United States. While we waited to hear the fate of same-sex marriage in this country, another decision was handed down. The Supreme Court issued a 6-2 opinion on AID v. Alliance for Open Society International voiding the anti-prostitution pledge that organizations were required to sign in order to receive federal funding. Justices Scalia and Thomas dissented and Justice Kagan recused herself since she had previously worked on this case at a lower level.

What does this actually mean? First, by removing this requirement organizations will be more able to do critical harm reduction work with people who engage in the sex trade. Second, as a result of the phenomenal social stigma associated with participating in the sex trade, many workers are in need of better psychical and mental health services, holistic treatment and services beyond the scope of strictly anti-HIV/AIDS programming. Moving forward, this decision will help to free up more funding for organizations providing multiple support services.

Congress has previously authorized billions of dollars through the Leadership Act to fund NGOs doing anti-HIV/AIDS work worldwide. Attached to that funding were the two stipulations that no funds were to be used to promote the “legalization or practice of prostitution and sex trafficking” and that funds may be only be given to organizations that have explicit anti-prostitution policies. This restriction was enforced by requiring funding recipients to sign a pledge denouncing prostitution when filling out their awards documents. These stipulations have prohibited many anti-HIV/AIDS organizations from doing work and outreach with sex workers, a highly at-risk population.

The Supreme Court stated that forcing organizations to “pledge allegiance” to government policy is clearly a violation of the freedom of speech. In some cases it is lawful to provide a limitation on funding attached to program specific work. For instance, federal funding cannot be used in programs that advocate for abortion as a family planning method but organizations are still allowed to engage in abortion advocacy through other funding streams. In the case of the anti-prostitution pledge, speech was prohibited “outside the scope of the federally funded program” thus violating the First Amendment.

This has huge implications for the LGBT community domestically and internationally. Sex work is an LGBT issue. LGBT people participate in the sex trade for a myriad of reasons. For some, participation provides protective factors and autonomy and for other, sex work can be violent and coercive. The lines are not always clear. What is clear is that at the intersection of LGBT identity and participation in the sex industry, there is phenomenal and compounded stigma. LGBT sex workers are in desperate need of culturally competent, harm-reducing, and holistic support and this decision gets us one step closer to achieving that goal.

For residents of New York State, a vote is coming up today on No Condoms as Evidence (A2736) about whether or not condoms can be used as evidence of sex work. This policy disparately impacts LGBT homeless youth, people of color and transgender folks regardless of their participation in the sex trade. There are two simple things you can do: Call Speaker Sheldon Silver’s office ASAP to urge him to put bill A2736 to a vote on the floor! 518-455-3791 The Speaker’s Office is confident we have the votes to pass the bill on the floor, but we need to guarantee its passage, so please call your Assemblymember and ask them to VOTE YES on A2736! You can find the info for your Assemblymember here.

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