Objections - Anti-Prostitution Policy Requirement, 22 U.S.C. В 7631(f)
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Kathleen Sebelius, Secretary, U.S. Department of Health and Human Services
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Due Date: 11:59 PM (EST) December 23, 2009
Dear Secretary Sebelius,
Advocates for the health and safety of people working in the sex sector are extremely dismayed and concerned about the recent proposed changes to the implementation of the "anti-prostitution policy requirement", 22 U.S.C. В 7631(f), contained in the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003. On November 23, 2009, the U.S. Department of Health and Human Services ("HHS") issued the Notice of Proposed Rulemaking, 74 Fed. Reg. 61096, inviting commentary on the proposed regulations. In summary, we oppose the proposed requirement that groups receiving HHS Leadership Act funds pledge that they are "opposed to the practice of prostitution" because it undermines the programs that are best placed to assist communities in need and because it affects freedom of speech. We are also opposed to the proposed regulations because they impose a further and confusing philosophical framework on organizations that provide services to marginalized communities. We urge you to refrain from enforcing the "anti-prostitution policy requirement" at all because of its detrimental affects on the health and rights of sex workers and others around the world.
The proposed regulations continue to conflate prostitution with trafficking ultimately weakening efforts against the serious abuses that are inherent to the crime of trafficking in persons and preventing best practice work with sex workers. This conflation occurs in the requirement that groups receiving HHS Leadership Act funds agree that they are "opposed to the practices of prostitution and sex trafficking." Many organizations providing health and rights based programming to sex workers and/or people trafficked into the sex sector find it essential to make distinctions between sex work and trafficking as an important tool in their outreach efforts. In fact, cross-cultural research indicates that health services and harm reduction programs are best administered by sex workers who are trained to become educators and leaders within their own communities.(1) Requiring organizations to oppose the very people who are best placed to communicate with communities of sex workers means that it is impossible for them to do health promotion work effectively. Requiring organizations working to end trafficking into the sex sector to view trafficking and sex work as the same issue clouds their mission and confuses their work. Ultimately, the failure to distinguish between sex work and trafficking means that the HHS Leadership Act misses the opportunity to promote the involvement key stakeholders in both health outreach and anti-trafficking efforts.
Even though the new regulations claim to be less burdensome and more accessible than the prior regulations, in message and substance they are the same and continue to be confusing, vague and burdensome. While organizations no longer would have to submit "separate" documentation that they have a policy opposing prostitution, this requirement is still forced upon organizations in the notice of availability of funds and in the receipt of acknowledgment of funds. Organizations are still being forced to accept speech or beliefs that may not be compatible with their values or mission. As the regulations state "the modification does not change policy, but reduces burden in complying with the established policy." This forced speech does not just affect and compromise groups that may have an oppositional ideology. Organizations who may have no position on prostitution-groups providing health care, caring for minors who have been trafficked, or engaging in harm-reduction based approaches to reducing the transmission of HIV-would all be forced to have a position opposing prostitution.
The proposed regulation continues to be vague in defining what activities are prohibited, despite repeated requests to HHS to specify what it means to "oppose prostitution." The regulation changes the list of factors that HHS will take into account when considering whether a funding recipient is sufficiently separate from any affiliate that engages in prohibited activities but does not change the case-by-case nature of the determination. Advocates for the health and safety of sex workers are extremely concerned that the proposed regulation still does not define exactly what types of outreach services and speech related to prostitution are prohibited. Therefore, it is not clear which must be done through an affiliated entity. This lack of clarity places organizations making efforts to comply at risk, as it is unclear what this compliance entails.
Effectively, the new regulations create HHS as a policing organization, charged with inspecting and examining each funding recipient for evidence of philosophical contradictions with an extremely unclear anti-prostitution requirement. The HHS would also have to evaluate new, onerous and confusing requirements for legal separation of organizations from affiliates. This degree of monitoring means additional expense for the department. It also fundamentally changes the role of those within HHS, whose job it is to provide assistance to organizations delivering health services, to vetting and censoring speech. This will certainly have an adverse effect on the department, and on its relationships with recipient organizations.
We are extremely alarmed at the creation of an unprecedented workforce of individuals within the US government whose job will be to monitor the ideology of community groups around the world. Most importantly, many of these international groups use effective and non-judgmental harm-reduction models in their approach to fighting HIV and other STIs in partnership with communities of sex workers. The current regulations will continue to deny these organizations necessary and life-saving funding, thereby diminishing efficacy of global HIV/AIDS efforts. As one of the wealthiest nations, we have a responsibility to the world through our support for international NGOs. However, the development of this new framework that qualifies, and in many cases damages, this assistance is highly problematic and counter-productive to the goals of health and safety. The undersigned groups urge you to not enforce the "anti-prostitution policy requirement" and to invest in initiatives that make a difference in sex workers' lives. What programs need now is comprehensive funding for HIV prevention and treatment services to communities of sex workers and support for scientifically sound approaches such as condom and microbicide distribution, peer education and the removal of laws and/or policing approaches that compromise sex workers' access to services.
Dr. Penelope Saunders
Coordinator, Best Practices Policy Project
Melissa Sontag Broudo, Esq.,
Board Member, Best Practices Policy Project
Carol Leigh,
Director, BAYSWAN
Elizabeth Nanas
Research Fellow, Wayne State University and Hong Kong University of Science and Technology
1 See for example, Campbell, Catherine, and Zodwa Mzaidume. 2001. Grassroots Participation in Health Promotional Projects: Peer Education and HIV Prevention by Sex Workers in South Africa. American Journal of Public Health 91 (12):1978-1987; Gysels, Marjolein, Robert Pool, and Betty Nnalusiba. 2002. Women who sell sex in a Ugandan trading town: Life histories, survival strategies and risk. Social Science & Medicine 54 (2):179-192; Roche, Brenda, Alan Nanigus, and Maureen Miller. 2005. Street Smarts and Urban Myths: Women, Sex Work, and the Role of Storytelling in Risk Reduction and Rationalization. Medical Anthropology Quarterly 19 (2):149-170.
Dear Secretary Sebelius,
Advocates for the health and safety of people working in the sex sector are extremely dismayed and concerned about the recent proposed changes to the implementation of the "anti-prostitution policy requirement", 22 U.S.C. В 7631(f), contained in the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003. On November 23, 2009, the U.S. Department of Health and Human Services ("HHS") issued the Notice of Proposed Rulemaking, 74 Fed. Reg. 61096, inviting commentary on the proposed regulations. In summary, we oppose the proposed requirement that groups receiving HHS Leadership Act funds pledge that they are "opposed to the practice of prostitution" because it undermines the programs that are best placed to assist communities in need and because it affects freedom of speech. We are also opposed to the proposed regulations because they impose a further and confusing philosophical framework on organizations that provide services to marginalized communities. We urge you to refrain from enforcing the "anti-prostitution policy requirement" at all because of its detrimental affects on the health and rights of sex workers and others around the world.
The proposed regulations continue to conflate prostitution with trafficking ultimately weakening efforts against the serious abuses that are inherent to the crime of trafficking in persons and preventing best practice work with sex workers. This conflation occurs in the requirement that groups receiving HHS Leadership Act funds agree that they are "opposed to the practices of prostitution and sex trafficking." Many organizations providing health and rights based programming to sex workers and/or people trafficked into the sex sector find it essential to make distinctions between sex work and trafficking as an important tool in their outreach efforts. In fact, cross-cultural research indicates that health services and harm reduction programs are best administered by sex workers who are trained to become educators and leaders within their own communities.(1) Requiring organizations to oppose the very people who are best placed to communicate with communities of sex workers means that it is impossible for them to do health promotion work effectively. Requiring organizations working to end trafficking into the sex sector to view trafficking and sex work as the same issue clouds their mission and confuses their work. Ultimately, the failure to distinguish between sex work and trafficking means that the HHS Leadership Act misses the opportunity to promote the involvement key stakeholders in both health outreach and anti-trafficking efforts.
Even though the new regulations claim to be less burdensome and more accessible than the prior regulations, in message and substance they are the same and continue to be confusing, vague and burdensome. While organizations no longer would have to submit "separate" documentation that they have a policy opposing prostitution, this requirement is still forced upon organizations in the notice of availability of funds and in the receipt of acknowledgment of funds. Organizations are still being forced to accept speech or beliefs that may not be compatible with their values or mission. As the regulations state "the modification does not change policy, but reduces burden in complying with the established policy." This forced speech does not just affect and compromise groups that may have an oppositional ideology. Organizations who may have no position on prostitution-groups providing health care, caring for minors who have been trafficked, or engaging in harm-reduction based approaches to reducing the transmission of HIV-would all be forced to have a position opposing prostitution.
The proposed regulation continues to be vague in defining what activities are prohibited, despite repeated requests to HHS to specify what it means to "oppose prostitution." The regulation changes the list of factors that HHS will take into account when considering whether a funding recipient is sufficiently separate from any affiliate that engages in prohibited activities but does not change the case-by-case nature of the determination. Advocates for the health and safety of sex workers are extremely concerned that the proposed regulation still does not define exactly what types of outreach services and speech related to prostitution are prohibited. Therefore, it is not clear which must be done through an affiliated entity. This lack of clarity places organizations making efforts to comply at risk, as it is unclear what this compliance entails.
Effectively, the new regulations create HHS as a policing organization, charged with inspecting and examining each funding recipient for evidence of philosophical contradictions with an extremely unclear anti-prostitution requirement. The HHS would also have to evaluate new, onerous and confusing requirements for legal separation of organizations from affiliates. This degree of monitoring means additional expense for the department. It also fundamentally changes the role of those within HHS, whose job it is to provide assistance to organizations delivering health services, to vetting and censoring speech. This will certainly have an adverse effect on the department, and on its relationships with recipient organizations.
We are extremely alarmed at the creation of an unprecedented workforce of individuals within the US government whose job will be to monitor the ideology of community groups around the world. Most importantly, many of these international groups use effective and non-judgmental harm-reduction models in their approach to fighting HIV and other STIs in partnership with communities of sex workers. The current regulations will continue to deny these organizations necessary and life-saving funding, thereby diminishing efficacy of global HIV/AIDS efforts. As one of the wealthiest nations, we have a responsibility to the world through our support for international NGOs. However, the development of this new framework that qualifies, and in many cases damages, this assistance is highly problematic and counter-productive to the goals of health and safety. The undersigned groups urge you to not enforce the "anti-prostitution policy requirement" and to invest in initiatives that make a difference in sex workers' lives. What programs need now is comprehensive funding for HIV prevention and treatment services to communities of sex workers and support for scientifically sound approaches such as condom and microbicide distribution, peer education and the removal of laws and/or policing approaches that compromise sex workers' access to services.
Dr. Penelope Saunders
Coordinator, Best Practices Policy Project
Melissa Sontag Broudo, Esq.,
Board Member, Best Practices Policy Project
Carol Leigh,
Director, BAYSWAN
Elizabeth Nanas
Research Fellow, Wayne State University and Hong Kong University of Science and Technology
1 See for example, Campbell, Catherine, and Zodwa Mzaidume. 2001. Grassroots Participation in Health Promotional Projects: Peer Education and HIV Prevention by Sex Workers in South Africa. American Journal of Public Health 91 (12):1978-1987; Gysels, Marjolein, Robert Pool, and Betty Nnalusiba. 2002. Women who sell sex in a Ugandan trading town: Life histories, survival strategies and risk. Social Science & Medicine 54 (2):179-192; Roche, Brenda, Alan Nanigus, and Maureen Miller. 2005. Street Smarts and Urban Myths: Women, Sex Work, and the Role of Storytelling in Risk Reduction and Rationalization. Medical Anthropology Quarterly 19 (2):149-170.
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