In the past two weeks, Federal Courts in Washington DC and New York City have ruled on two related and closely-watched cases that pitted US Government Contractors against USAID and the US Government over the interpretation of the PEPFAR language regarding prostitution. The prostitution policy requires all recipients of USG funding under PEPFAR - both U.S. and foreign organizations - to have an organizational policy explicitly condemning prostitution, although they are able to provide services to commercial sex workers. In both cases, the judges found the organizational eligibility restrictions to be an unconstitutional violation of the First Amendment.In the rulings, the judges found that the broad definition of organizational policies and the non-neutral viewpoint of the restriction unconstitutionally controlled the organizations’ ability to conduct a full range of activities and make a full range of statements with their private funds. The judges did not examine the restrictions placed on federally-funded activities under PEPFAR, or the application of the organizational eligibility restrictions to foreign NGOs.These rulings are a clear victory for the plaintiffs in the cases - organizations that stood to lose significant and lucrative Government contracts. The rest of us will have to just wait and see.
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