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Sex Workers (Try to) Enter the Human Rights Arena

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It may seem like a dirty job, but like it or not, the "world's oldest profession" is still going strong.

Society has long wrestled with the moral question about whether paid sex is a legitimate aspect of the labor market. Recently, the political economy of sex work took center stage in Geneva as part of an assessment of the United States by the United Nations Human Rights Council.

While the review process will consider many issues raised by advocacy groups and the Obama administration, a global critique of anti-prostitution laws hits a very raw nerve in the human rights community. How does the sale of the most intimate of human transactions fit with the regime of universal human rights?

Seeking to cool the fiery polemics surrounding sex work, the report presented at the review, filed by the Best Practices Policy Project, Desiree Alliance, and the Sexual Rights Initiative, foregrounds the sex workers' everyday struggles for equity. Both sides acknowledge that, from a human rights standpoint, sex workers are extremely vulnerable, and that social stigma and the illicit structure of sex work worsens their plight.

But the report advocates for decriminalization of sex work, citing dysfunctional criminal justice structures that compound sex workers' vulnerability while doing little to actually shut down the industry:

Arrests for sex work can lead to a cycle of continued exclusion from housing and other job opportunities, and to reimprisonment. Furthermore, because many forms of sex work in the U.S. are treated as a crime, law enforcement officials frequently fail to recognize that sex workers can be victims of crime, and thus deny justice or support to sex workers who seek their help.

The groups point out that within the sex work sector, exploitation and mistreatment, at the hands of both government and customers, disproportionately fall on marginalized populations such as transgendered people and women of color.

Pro-sex-worker activists argue for the repeal of anti-prostitution laws, including measures that elliptically target sex workers through the criminalization of patrons, and "public nuisance" statutes that allow police to preemptively crack down on suspected prostitutes on the street.

Advocates focus on reducing harm to the individual and society, on the assumption that fixating merely on penalties ultimately hurts much more than helps sex workers while often giving pimps and johns a pass.

Yet pro-decriminalization groups don't oppose all government intervention in commercial sex. A realistic, rights-based approach to sex work shares the realism of movements to decriminalize drug use and to overhaul the immigration system: the criminal code should protect people from real harm, including health hazards and violence, and not try in vain to stamp out an inevitable social process. Simply convicting women for prostitution won't change the fact that many lack the social supports they need to take control of their economic destiny. Just like busting low-level drug offenses does nothing to undercut violent drug cartels, and rounding up undocumented migrant workers doesn't dent the profits of businesses that feed on them.

The coalition's report also recommends providing sex workers with legal mechanisms “to find redress for human rights violations and hold law enforcement accountable for their actions” if they've abused “victims” they're purportedly rescuing. 

Opponents of decriminalization say sex work is of a different moral nature than regular labor, that violence and shame are endemic in prostitution, whether legally sanctioned or not. But the persistence of problems linked to prostitution doesn't justify arbitrarily penalizing sex workers who are just trying to survive, nor does it enforce any kind of perceived moral consensus in society.

The Ontario Superior Court's recent ruling on Canadian sex workers' rights reflected this principle, contending that draconian laws "force prostitutes to choose between their freedom and their right to security as guaranteed by the Canadian Charter of Rights and Freedoms." As for the practical impact, especially when compared to the legalization policies of other countries, the court opined, “By increasing the risk of harm to street prostitutes," the court opined, the law in question "is simply too high a price to pay for the alleviation of social nuisance."

At Ms. Blog, sex-work scholars Crystal Jackson and Barbara Brents cite the ruling as an alternative framing of a taboo:

This case repudiates the dominant discourse around sex work today: that the majority of sex workers are coerced, that women are trafficked into the business and that selling sex is inherently violent. In sum, that whores are not capable of critical thought and informed decision-making.

Whore stigma is a particularly gnarly incarnation of misogyny marking women who dare to exercise economic independence or sexual independence.

The advocates' reasoning isn't that prostitution is great for women, or that trafficking and abuse aren't real threats. The proposition is pretty sane and simple, from a workers' standpoint: The sex trade, like many other "legal" jobs, falls on a wide spectrum of exploitation within a capitalist labor system. The work itself may represent realities that people find immoral or disturbing. But the people doing the work are more than mere proxies in a culture war; they're human, and that alone entitles them to equality before the law.

Cross-posted from In These Times.