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Sex Work: A Feminist Legal Perspective

January 20th, 2012     by Derek Hogue     Comments

Selling sex is controversial. And exchanging sexual services for money is a difficult issue to discuss amongst feminists: some say sex work is always violent and a form of exploitation; others consider it a viable job choice. Right now, this debate is once again front and centre in Canadian courts.

As a feminist lawyer, I take direction from my clients and I respect their experiences and their knowledge. This past year I’ve been part of a group of lawyers that represent sex worker-led advocacy organizations and when it comes to sex work I let my clients tell me about their work. I believe that they know the best ways to improve their working conditions.

Contrary to popular misconceptions, it is not illegal to exchange sex for money in Canada. It’s only certain activities related to sex work that are against the law. While it’s legal for adults to sell or buy sex, what is against the law is communicating in public about selling sex, being in a location where sexual services are sold, and living off the money that is made from sex work. These laws make it hard for many sex workers to function legally and safely.

The federal and Ontario governments claim that it’s not their responsibility to protect people who sell sex because they’re choosing a dangerous lifestyle. However, many sex workers argue that it is actually the legal restrictions around selling sex that make their work unsafe. Terri-Jean Bedford, Amy Lebovitch, and Valerie Scott are fighting these laws in Court. In September of 2010, the Ontario Superior Court agreed with them and ruled that the laws that criminalize sex work are unconstitutional because they violate sex workers’ rights to personal security.

The Court agreed with the sex worker applicants when it found that the laws increase the risk of violence by making it illegal to negotiate the sale of sex, to work indoors, and to work with other people like drivers, administrative staff or security guards. The criminalization of these activities means that it is hard to clearly consent to specific sex acts and to screen clients and negotiate the terms of sex in advance. The laws also push sex workers to work alone and in isolated areas. The court further ruled that the criminalization of these activities forces sex workers to choose between breaking the law and safer working conditions.

My clients are POWER (Prostitutes of Ottawa Work Educate and Resist) and Maggie’s: the Toronto Sex Workers Action Project. Last summer they told the Ontario Court of Appeal that not only do these laws make their work more dangerous, but that the laws take away their legal right to make important personal decisions about their bodies, their sexuality and their personal relationships.

In their legal submissions, POWER and Maggie’s compared choosing to engage in sex work with the right to choose to have an abortion. Both of these decisions can be difficult, involve complex circumstances, and are morally controversial. Just like abortion, choosing to do sex work is a fundamentally personal decision that relates directly to an individual’s sense of autonomy and bodily integrity.

In their submissions POWER and Maggie’s also argued that the laws around sex work disproportionately affect women and men from historically disadvantaged groups. The majority of sex workers are women, however, an important and often overlooked group of sex workers are men who have sex with men. Further, a relatively large proportion of sex workers are racialized, Indigenous and/or trans people. The laws criminalizing sex work single out people who already face intersecting forms of oppression and further expose them to violence by making their work illegal and unsafe. Other legal jobs that include a risk of violence—such as law enforcement, professional sports, firefighting, bus or taxi driving, to name a few—are regulated to protect workers and offer workers legal options if they’re exploited or experience violence. The fact that sex workers are denied these basic protections is discrimination, and therefore, unconstitutional.

By prohibiting sex workers from taking steps to make their jobs safer, the laws are reinforcing the stereotype that the lives of sex workers aren’t valued and aren’t worth protecting. This stigmatization, or whorephobia—a term used by POWER to describe this systemic marginalization—can prevent sex workers from accessing important health, social, or police services for fear of judgment or punishment if their occupation is discovered. This marginalization is multiplied for poor, disabled, trans, racialized and Indigenous women who already face barriers accessing these services due to institutionalized racism, transphobia, colonization, sexism, classism, homophobia and ableism. In addition, this marginalization also contributes to Indigenous women being overrepresented amongst sex workers who have been assaulted or murdered.

Critics of sex worker advocacy groups often propose continuing to criminalize the buyers of sex and not the women who are the sellers. On the presumption that all clients are men and all workers are women, they advocate putting the men in jail while helping women exit the trade. POWER and Maggie’s told the Court that this model does not actually make their work safer. When clients are criminalized, workers will still have difficulty screening customers, clearly communicating about their transactions, and working with others or indoors. Criminalizing the clients perpetuates the stigmatization and keeps this labour underground and unsafe.

POWER and Maggie’s told the Court of Appeal what they tell Governments and sex work abolitionist feminists alike: sex work is not inherently violent or degrading. The exchange of money for sex does not hurt women; violent people, discrimination and dangerous laws do. And just like in other professions, sex work can be honourable and valuable work, founded on consent and respect. To disregard sex workers’ rights to make decisions about their bodies and their labour is paternalistic, dangerous and disrespectful.

The Ontario Court of Appeal has yet to release its decision on the laws around sex work. Whatever the decision, decriminalizing sex work is an issue that will likely end up at the Supreme Court of Canada.

Our legal system often works against the most marginalized communities. As long as it does, feminist activists will continue to challenge laws and fight for change. To do so, we have to listen to the people who are most affected by these laws that perpetuate oppression. When it comes to the debate around the criminalization of sex work we have to respect the experiences of sex workers and take direction from them.

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