“A little free speech for me, and a little shut-up-and-take-it-like-a-man for you.”

There’s a bit of controversy brewing in the UK press, as a result of a letter from academics and activists (including noted LGB activist Peter Tatchell, as well as some recognized trans-exclusionary reactionaries) published in The Observer (“We cannot allow censorship and silencing of individuals“).  In it they call for universities to stand against what they felt was intimidation, specifically pertaining to discussions on trans* issues and sex work.

As a freelance writer and journalist, I could normally understand the concern of what they term no-platforming (alienating speakers like Germaine Greer and Julie Bindel because of past controversial remarks).  And I can’t speak to the history of the controversy in the UK (of which this letter is just a part) as well as someone who has lived through it.  But as a woman of trans* history and a former sex worker, however, I see that there is also some important context which is being forgotten.

In principle, of course, free speech is ideally responded to with free speech.  Yet, when it comes to debates on issues pertaining to them, sex workers are typically either not given a platform at all, or else their perspectives are dismissed by default.  Sex workers’ perspectives are systematically eliminated from the debate either by claiming that people who choose to engage in commercial sex are the exception and statistically unimportant; or by acting like they’re too silly to realize that they’re victims; or by claiming that a woman is somehow incapable of making a decision to consent to sex the moment money is involved.

Meanwhile, trans* people are starting to find public venues in which to speak, but this is still tentative, a novelty, and not always available.  Trans* people have for decades been ignored or told to shut up and just deal with it, and after decades of being excluded from the discussion about them, all while facing a constant barrage of ignorance and invalidation, barbs eventually get through and wound.  This is why trans* people react, and often with a lot of anger.

It’s also important to take into account the context of the debates in question.  Debates on trans* issues (or at least those being protested) are often ones about whether trans* people should be accommodated within society — whether in womens’ spaces, in the health care system, in institutions like prisons (in which trans* women are often incarcerated with men or serve out entire sentences in solitary confinement), or in public spaces in general.  Other arguments are be about whether or not trans* people are mentally capable of determining who or what they are, and whether that self-determination should be respected, rather than treating them as deluded dupes who should simply be disregarded (or grateful for no longer being institutionalized and/or lobotomized).  And when it comes to sex workers, the debate is about whether they should be allowed to exist at all.  These are not merely polite academic discussions. They directly pertain to trans* people and sex workers, and potentially affect their lives.  There is much at stake.

Opinion columnists and speakers today do not usually make generalizations about or flippantly taunt most marginalized people.  This isn’t because they fear the dreaded banhammer, but because we as a society have learned enough about many minorities to realize the need to show a little decency, empathy and respect.  And if that line is crossed, the public usually understands the outcry.

Freedom of speech is not simply a question of saying anything that one might wish to say, but instead comes with a responsibility to face consequences when others call out attitudes that need to change.  This calling out is precisely what is taking place when trans* people and sex workers protest the failures to extend the same balance, empathy and respect to them.  While censorship may not be the ideal outcome (and violence or threats are unacceptable), outrage is often the only response that gets heard.  And perhaps debating a minority’s rights without that minority having a significant voice in the process is becoming something that is no longer reasonable.

The authors of Sunday’s letter have failed to realize that crass invalidation, ridicule and indifference already stifles conversation, thus maintaining a status quo in which trans* people and sex workers remain the stuff of lurid sensationalism, cheap stand-up comedy, and demonization. Defending it all by crying freedom of speech abdicates any responsibility to be conscientious about the harm one does to entire minorities.  It is also blissfully ignorant about the imbalance that exists between the reach of these speakers, versus the dearth of trans* and sex worker voices in mainstream discourse to act as a counterbalance.

And that risks becoming a case of “a little free speech for me, and a little shut-up-and-take-it-like-a-man for you.”

(Crossposted to The Bilerico Project)

Could Canada’s Anti-Sex Work Bill C-36 Also Stifle LGBT Speech?

Slightly over a week ago, Canada introduced legislation to replace the anti-prostitution laws that had been struck down by the Supreme Court of Canada.

The Conservative government has been trying to race Bill C-36 through both the House and the Senate simultaneously, at breakneck speed.  But the text of the bill has raised questions about its constitutionality.  Sex workers, mainstream media and even many Nordic model proponents and abolitionists agree that it places sex workers in even greater danger than the previous laws did.

But is there also a poison pill within the legislation that could be used to stifle LGBT and sex-positive speech?

Firstly, here is what the dubiously-named “Bill C-36, the Protection of Communities and Exploited Persons Act” does:

• It re-criminalizes communicating for the purpose of commercial sex.  While there is said to be an exemption for the sex worker themselves, that exemption only applies if the communication is not in a public place and/or not “where persons under the age of 18 can reasonably be expected to be present” (a minor doesn’t actually have to be present), and not in the presence of another sex worker under the age of 18 (one controversy has arisen because underage sex workers can be charged if they work together for safety).  The law had been struck down previously because it put sex workers in unsafe situations by limiting their ability to screen clients, and negotiate what they were willing and unwilling to do.
• It re-criminalizes the “common bawdy-house,” defined as a place “for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons.” This criminalizes massage parlours and strip clubs, if commercial sex occurs on their premises, and also prevents sex workers from having their own (or collective) space away from home to meet with clients.  The bawdy-house law had been previously struck down because it prevented sex workers from working collectively indoors.
• It re-criminalizes “living off the avails…” (as “receiving a material benefit that derives” from the sale of sex). It does provide an exemption (subject to interpretation) for some roommates, spouses and children who live with sex workers, provided that nothing can be construed as an exploitative situation and no drugs are provided to the sex worker.  This also criminalizes escort agencies, and it is unclear how liable referrers, drivers, bodyguards, associates and other business partners could be.  This had also been previously struck down because it prevented sex workers from working together or making business arrangements that improve their safety and circumstances.
• It now officially criminalizes the purchase of sex.  This is new (previously, it had been legal but associated activities were illegal), and it’s because of this that people are claiming the law is based on the Nordic model of prostitution laws, which aim to end demand while supposedly not targeting sex workers themselves — but Canada’s law goes very clearly beyond that point in several ways.  While many are claiming that this law will inevitably be struck down as unconstitutional, the Harper government’s gambit strategy is to criminalize sex work, so that it is no longer legally relevant whether the laws make it unsafe.
• Something else that is entirely new is that the law criminalizes advertising “sexual services.”  Newspapers and websites are legally liable if commercial sex advertisements are found within their publications, and consequences can include fines or imprisonment — again with an exemption for the sex workers themselves, provided it is not in a public place and/or “where persons under the age of 18 can reasonably be expected to be present….” Weirdly, it appears that the Internet may be defined as a place where persons under the age of 18 can be reasonably expected to be present, for the purposes of this bill.

“Sexual services” is not defined, and I have asked elsewhere if this term could eventually be stretched in such a way that it ultimately bans porn.  The bill contains extensive search and seizure powers that at the very least provides all the legal teeth that such a ban would need.  Others have also asked if the vague nature of this term could be used to target sexual health services, sex-positive counseling, sex toys and more.

If the phrase “where persons under the age of 18 can reasonably be expected to be present” is reminiscent of Russia’s “homosexual propaganda” law, that may be by design — Canada’s criminalization of sex work owes more to Russia’s anti-prostitution laws than to the Nordic model.

(If anyone is interested in background of these specifics, I have posts at Rabble.ca about what the bill explicitly does, and how the bill makes a seriously flawed and damaging conflation between sex work and human trafficking.)

The Poison Pill

The new criminalization of “sexual service” advertising, however, is especially concerning.  Given the way that print and online publications are to be held liable for commercial sex advertising, there are serious implications for Canadians’ freedom of speech.  Beyond the obvious loss of advertising revenues that an LGBT publication might endure, there could also be wider-spread censorship if that legal liability also extends to Internet Service Providers (ISPs), for any such advertisements that could be found on their networks.

The question is not as absurd as it sounds.  It was only last July that Conservative MP Joy Smith loudly cheered Britain’s new law which required ISPs to institute a content filtering system requiring Britons to opt in if they want to be able to access anything deemed to be obscene or pornographic.  At the time, she had promised to flag this for the party to make a top priority, she said she was absolutely certain that the Prime Minister would be interested in taking action, and then nothing else has ever been said publicly about it.  Meanwhile, Joy Smith has been the Harper Conservatives’ most vocal proponent of Bill C-36, and given many comments by her Conservative Party colleagues, it would seem that she also had a hand in drafting the bill and / or lobbying for it among Members of Parliament.  And the only groups that have been very happy with Bill C-36 have been a number of religious groups, who seem to be the only consultants that were listened to.

Filters have caused minor controversies in Canada before, such as when Tim Hortons had to apologize for blocking DailyXtra from WiFi users.  However, they’ve not improved very much, over time, and have never been applied in a global fashion.

If ISPs are legally liable for (or could be threatened with legal liability for) advertisements of sexual services found on their networks under the terms of C-36, then out of necessity and self-preservation, ISPs would need to institute a content filtering system, nationwide.  Unlike Britain’s, there may not be an opt-in alternative.  This would be doubly reinforced if pornography were deemed a “sexual service” (i.e. by acting as an intermediary) at some point.

Where this becomes especially a concern for free speech is that content filters are incredibly arbitrary, and any filter system designed to effectively intercept commercial sex advertising would inevitably be overly broad.

The result of the filters implemented in Britain has been a deliberately quiet reduction in access to a great many things:

“The filters block a wide variety of content, from hardcore porn to extremist political sites… those “porn blockers” have already proven to be ineffective, blocking plenty of harmless sites and failing to tell the difference between sex education forums and porn. In one case, a domestic abuse helpline was blocked as inappropriate material, while many actual porn sites are still accessible through the filters.”

Back in January, The Guardian‘s Laurie Penny asserted that blocking more than porn was both the intent and the inevitable consequence of the government’s content filtering initiative.  Casualties of the filter system had included “helplines like Childline and the NSPCC, domestic violence and suicide prevention services.”  The New Statesman reported in December that one ISP advertised that its filters would block gay and lesbian content:

“BT have since reworded this description to remove the ‘gay and lesbian’ reference, but given that their filtering is provided by an unnamed “third party supplier” it seems highly unlikely that the filter itself has changed overnight – merely the description.”

What is and isn’t allowed still can’t be determined except through trial and error.  The Cameron government had to draw up a whitelist to force-allow sites that have been noticed to have inadvertently run afoul of the censor.  But the scope of the filters has grown since its initial introduction to also include discussions deemed politically radical — an addition stated to be because of the possibility of the propagation of terrorism.

While a C-36 inspired filter system would operate differently because of what it’s intended to block — advertisements of sexual services, rather than pornography — that doesn’t mean that the filters would be any less clumsy.  While search terms like “escort” would be natural flags for a filter system, ISPs that are worried about legal repercussions would necessarily include a wider array of tags, to try to prevent anyone from getting around the filters.   Given the subjective nature of the term “sexual services,” something that’s open to wide interpretation, this could result in the “just in case” mentality, where businesses and individuals apply the rule in an overly broad way, to avoid any possible complaints or legal liabilities. And then there’s the problem of filtering images, which don’t of themselves have keywords other than the descriptions assigned to them.

Given the avid support that MP Joy Smith has shown to both C-36 and content filtering — as well as the Bill’s obvious pandering to far right groups that have called for a Canadian equivalent to a Russian-style “homosexual propaganda” law — it’s a reasonable question to ask.

Canadians concerned about this possibility can contact their MP (who can be determined through a search on the parl.gc.ca main page), and civilly but clearly ask for assurance that the ban on sexual service advertising in C-36 could not be used in this manner.  They’re also encouraged to find out more about what the bill does, and voice their opposition or their concerns about how this affects sex workers.  They should CC their message to Minister of Justice Peter MacKay, and if their Member of Parliament is a Conservative, they might also want to copy an interested member of the opposition, such as Françoise Boivin (NDP), Sean Casey (Lib.) or Elizabeth May (Greens).  This must be done quickly, however.

Bill C-36 will be voted on at Second Reading on Monday June 16th, after Question Period at 3:00pm.  From there, it could proceed to Third (and final) Reading, or to a committee stage for amendments (although it appears the Conservatives prefer to pass it as soon as possible).

(Crossposted to The Bilerico Project)

C-36: Conflating sex work with human trafficking

I recently asked whether the vague definition of “sexual services” and definition of the Internet as a public space could be used to make the anti-prostitution Bill C-36 ban pornography.  Regardless of how one feels about porn, such a thing would certainly require a debate, and it’s a question worth asking.

I also looked at the obvious aspects of C-36 that have sparked outrage from sex workers, and occasionally even from abolitionists.

There are further discussions as well — more concrete than speculation, but still under the surface of the legislation itself.

Conflating sex work with human trafficking

Anti-prostitution Bill C-36 explicitly puts sex work on the same footing as human trafficking and conflates the two in law.  Indeed, they have been consciously equated by Peter MacKay and by the bill’s proponents.

The rhetoric used when introducing the bill also does this, through employing a language that claims that people (particularly women) sell themselves or are sold as commodities, rather than simply selling a service.  Under this line of thinking, it is considered impossible that sex workers might retain any personal autonomy.

Human trafficking certainly exists, although not as frequently as it is often claimed (studies that claim high numbers of trafficking incidents often similarly conflate it with sex work). The fact that it happens less often does not mean that we should care less or believe that the occurrences of it are somehow less horrible — but it does justify recognizing when the scope of it has been unjustly stretched beyond what human trafficking actually is.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (or Trafficking Protocol) defines human trafficking as:

“The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs….”

Human trafficking doesn’t always include border migration, and the exploitation isn’t always about the selling and buying of sex, but the consistent elements are that one person ends up controlling another, via unethically-obtained consent or no consent at all, for the purposes of exploitation.

These circumstances sometimes do occur with sex work, but they aren’t inherent to it.  Sex work does not always have elements of coercion, of control, or of vulnerability. Sex work actually includes a variety of trades, including street work, escorting, stripping, lap dancing, professional domination, massage, survival sex, porn, and more, making it difficult to generalize about it in an absolute fashion.

The Harper government (and supportive media) has had to paint sex workers, advocates and organizations as rare outliers, in order to maintain the illusion that sex work is always exploitative. A great many sex workers have a considerable degree of personal autonomy and independence.  However, those who are in exploitative circumstances are always those who are disproportionately visible, because they will justifiably make contact, seek help and make themselves visible. Unfortunately, this means that the dire circumstances experienced by those who do seek escape become interpreted as being representative of sex work as a whole.

Worse, using the term “human trafficking” interchangeably with sex work actually confuses the issue significantly, diverting funds and energy away from where it’s needed and toward combating legitimate sex work as well.  This makes it impossible to get clear and realistically comparative data, and reallocates funding away from effective anti-trafficking initiatives.  It undermines the fight against trafficking and tarnishes the organizations that try to do the needed work, making it much harder to address actual human trafficking.  And it has allowed far right moralists who are more interested in controlling peoples’ sexual habits seductively hijack the dialogue that once considered womens’ autonomy and choice to be important.

Under Bill C-36, for example, the emphasis is placed on exit services.  But victims of human trafficking have specific (and often urgent) needs that go far beyond exiting sex work.  These start with citizenship: far too often, the response to a trafficked person in Canada is to rescue them from an exploitative situation, and then deport them to the very same conditions that made them vulnerable to exploitation.  Certainly, without citizenship, access to other social services and the tools they need to begin lives free of exploitation becomes difficult or impossible.

And while sexual exploitation justifiably triggers anger and requires remedy, human trafficking also involves far more than sexual exploitation.  It is believed that there are nearly 21 million trafficked persons, worldwide, according to an estimate by the International Labour Organization.  Of these, 4.5 million are victims of sexual trafficking.  The issue of persons exploited for sexual labour is urgent, yes.  But it does not encompass the whole problem of human trafficking.  The approach of Bill C-36 allows the public to believe that we’ve addressed everything that matters.

The embarrassing fall of Somaly Mam — who resigned after questions were raised about her autobiography, tactics and alleged coaching of shocking stories about sex trafficking — should provide a strong cautionary tale about how we can sometimes react to the issue by willingly disregarding or failing to check key facts.

If sex workers did not have to feel targeted by authorities or ashamed to reveal who they were, they could in fact become key allies in detecting and identifying where and when sexual trafficking occurs.  Besides…

“Kung said the employees were required to share rooms in two five-bedroom homes owned by their boss, Tony Van Den Bosch.

“They had no privacy in the house. The owner would come in and out as he pleased and would enter people’s rooms,” Kung said.

“In addition, Kung said, the workers were asked to pay rent once at the beginning of the month, and an additional $200 “tip” on top of their monthly rent in the middle of the month, for the double-bunked rooms.

“… The employer also regularly asked the workers from Mexico for their passports and would hold them for periods of time, alleged Kung.

“Two of them were fired and sent back to Mexico after raising concerns about their working and living conditions. Two of them actually fled in the middle of the night one night because they were so afraid…”

How is sex work inherently always incontrovertibly equivalent to human trafficking, but the Harper government’s Temporary Foreign Worker (TFW) program not?

The paternal infantilization of women and the idealized rescue of exit services.

Bill C-36 assumes that everyone engaging in sex work is a victim. By doing so, this government ignores the experiences of people who choose to engage in sex work.  Unless there is direct force or coercion involved (which is procuring, something that was still illegal before this law was introduced), there are two intersecting factors that motivate people to engage in sex work: poverty and opportunity.  The balance between each will vary per person.

While promising to invest money in exit services, the same government fails to address one key driver — poverty — and completely disregards the other as non-existent.

Between driving wages down with anti-union policies, the Temporary Foreign Worker (TFW) program, cuts to the public sector, refusing to address economic and gender disparities…  the Harper government is a major driver of that poverty. If the choice is to earn as much in two weeks working at a McJob as one could earn in a few nights doing sex work, then that’s not really much of a choice, is it?

Certainly, there’s no talk about addressing job opportunities and wages that would provide a reasonable alternative.  Despite the stigmas, danger and even criminalization, sex work is one of the few ways that people might have to escape oppressive economic circumstances.

And by taking away any ability to work in visible spaces or safe spaces, the Harper Conservatives are driving the industry underground, creating vulnerabilities. The only thing that the government is offering is funding for exit programs.  Leave or else.  This bill does everything possible to ensure that exiting sex work is the only option.

The rescue industry

The Conservatives have pledged $20 million toward exit programs and enforcement.  It’s not known how much of that money will go to increased policing costs.

Exit programs are one area where a person really has to wonder how a law is going to be used.  Will law enforcement be used to push people into exit programs?  Will there be coercion or obligation to participate in them?  Will access to assistance or public services be conditional upon participating in an exit program?  If a person does not want to participate in an exit program, will the penalty be charges for things they would not have otherwise been punished for?  Will participation in exit programs be the only way a sex worker can avoid losing custody or visitation of their children?  Will religious institutions (similar to or allied with those who advised the bill, even) be administering these exit programs, and will proselytization be a part of the exit strategy?

Some of these questions sound appalling or absurd, but there are certainly precedents south of the border where these became the consequence of anti-prostitution laws which push exit programs.

A matter of advice

In crafting Bill C-36, there was a clear reliance by the Harper government on the advice of far right religious organizations like REAL Women of Canada and the Evangelical Fellowship of Canada, and virtually no weight given to the people directly impacted by the legislation.

One of the organizations that stands to benefit from the $20 million that the Harper Conservatives have pledged to invest in exit programs is [free-them], which describes itself as an anti-trafficking organization.  But the organization appears to have a moralist slant that extends beyond that mandate.  When MP Joy Smith (who the organization describes as “Free-Them’s ally in fighting human trafficking”) issued a statement in support of Britain’s mandatory porn opt-in policy, [free-them] was quick to follow up with a similar statement:

“Children need to be protected from pornographic images that over time can desensitize our youth and create a false sense of sexual reality, and even lure children into a situation of exploitation that no child should ever experience. As Prime Minister Cameron clearly states, this regulation is not banning legal pornography, but rather increasing an extra level of security and protection from pornography getting into the hands and viewership of youth and children that should not be exposed to this. As adults, we have a responsibility to the young generations growing up to protect and defend children and youth…”

If it’s difficult to conflate human trafficking with all of sex work, then it’s even harder to equate it with the entirety of pornography.  Exploitation does happen in porn, yes, but in this case, there is also a highly visible contingent of participants who have been obviously not trafficked, and have relative personal autonomy.

The longer one follows the threads of Bill C-36, the clearer it becomes that it is far less about exploitation, and far more about legislating a specific moral vision.  And in the process, the issue of trafficking itself has become hijacked.

Footnote: While I had never set out to become an activist for sex workers’ rights, I’ve come to believe that the freer and more empowered a sex worker is, the less opportunity exists for exploitation, and the more opportunity there is to escape it if it happens. Criminalization achieves the opposite effect.

(crossposted to Rabble.ca.  Concerned about progressive media in Canada? Support rabble.ca)

Bill C-36, the Protection of Communities and Exploited Persons Act: an overview

I recently asked whether the vague definition of “sexual services” and definition of the Internet as a public space could be used to make the anti-prostitution Bill C-36 ban pornography somehow.  Regardless of how one feels about porn, such a thing would certainly require a debate, and it’s a question worth asking.

That is, however, speculative.  The bill itself contains many clearer aspects that have sparked outrage from sex workers, and occasionally even from abolitionists, as well (though the objections vary).

The Canadian government’s public consultation on sex work — which sex worker advocates felt had been slanted to try to sell the “Nordic Model” of anti-prostitution law — was reported to have shown that a majority of Canadians want the selling of sex to be legal for the sake of the people who engage in it, but a mix (slight majority) of Canadians support criminalizing the buying of sex.

Apparently Justice Minister Peter MacKay decided that meant that Canadians wanted sex work criminalized in such a way that sex workers wouldn’t always be technically charged, but it would be otherwise made totally impossible to work legally and safely.  Rather than honour the safety concerns raised by the Supreme Court of Canada, the Harper government has actually exacerbated the situation in hopes of forcing sex workers into exit programs.

“The purchase and sale of sex has never been illegal in Canada,” MacKay said explicitly. “That changes today.”

It is, of course, the government’s hope that by completely criminalizing sex work, the Supreme Court of Canada’s argument — that anti-prostitution laws do harm to sex workers by preventing them from working safely — becomes irrelevant.  Courts never concern themselves with whether circumstances are made safe enough to commit a crime.  And that’s why it has decided to criminalize the buying of sex in addition to re-criminalizing everything that was struck down (with a few narrow exemptions for sex workers themselves)… and throw in some new restrictions for good measure.

(It’s alleged that an unpublished Ipsos Reid poll reportedly contradicts this government position, but the results of that poll are being withheld)

Pivot Legal Society has condemned the bill:

“This cynical, dystopic model does not resolve the problems found by the Court in Bedford to be unconstitutional, and adds new ones such as the prohibition on advertising. The Charter rights engaged by this proposed law include life, liberty, security of the person, freedom of expression and equality. Arguably all are breached.

“This is not the “Nordic” approach, nor is it a Canadian variation on the “Nordic” approach. It is an unconstitutional variation of our broken laws that impose more danger, more criminalization, and fewer safe options, contrary to the requirement of the Supreme Court of Canada to address these dangerous and ineffective laws.

“This made in Canada model will lead to continued epidemic of violence against sex workers in Canada…”

What the bill does:

1) Sellers are not criminalized or targeted… except when they are.

It’s claimed that Bill C-36, the Protection of Communities and Exploited Persons Act targets buyers of sex but doesn’t target those who sell it.  That is incorrect.  Sex workers can absolutely be charged:

• if they work in the presence of sex workers under 18 years of age — even if they’re under 18, themselves;
• if they work at home where children reside, if it’s asserted that the children are being negatively affected (and what about having to go visit grandma all the time… is that a negative effect?) — more on this in a moment; and
• if they communicate in “a place where persons under the age of 18 can reasonably be expected to be present,” stop traffic, etc. (the penalty for this could be up to five years in prison)

The mixed signals on charging sex workers opens up some ability for law enforcement to use the potential for charges (and the lack of clarity on what is legal) to manipulate people.  This could result in the threatening of charges in order to intimidate a person into incriminating themselves or incriminating others (perhaps even falsely, in order to escape trouble).  This lack of clarity could also be used to scare people into pleading guilty (regardless of whether it’s true) to seeming lesser charges, in order to escape risking more frightening legal possibilities.

Regardless of the exemptions included in the bill, there are still institutional barriers to keep sex workers from receiving assistance from police or communicating with them with confidence.  For example, the search and seizure powers make no exemption for sex workers themselves.  Even if they can’t be charged for advertising their own services, what’s to stop police from seizing their computers and targeting their current and past clients in one fell swoop?  It’s incredibly naive to think that the rapport between law enforcement and sex workers would be improved in any way by this law.

Could the legislation affect access to social services as well, if those services aren’t specifically exit-related? Or custody of children?  Even if a sex worker cannot be charged for advertising sexual services in a particular situation, might it still violate a lease by being classified as a criminal act?  The implications are uncertain.

2) Communication.

The law against “communicating for the purpose of…” — which put sex workers in unsafe situations by limiting their ability to screen clients and negotiate — is back, and is actually made more restrictive by applying it to “a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present.” That last part is key: a minor doesn’t actually have to be present, there only needs to be an undefined reasonable expectation (and it will be up to the courts how widely that can be interpreted).  Your car could be a public place.

In the case of sex workers who have children, even if their children can be kept unaware of their parent’s pursuits and are never present when they see clients, does their home become a “public place?”

It’s still never safe for buyers to communicate to buy sex, but where does it become safe for a sex worker to communicate to sell sex? If they can only communicate from home and without the use of the Internet or public spaces, well, that certainly complicates things.  Bill C-36 distinguishes itself by targeting indoor sex work so that it becomes impossible to engage in safely, even if you’re the sex worker who is supposed to be exempt from the law.

A bar is still a public place, but it’s not “a place where persons under the age of 18 can reasonably be expected to be present.”  So it’s legal-ish or closer to legal-ish, and the penalties for anyone caught are smaller. So now, the Harper government has made sex workers safer by pushing them into darkened spaces with clients who have been drinking.

But at the same time, there is a disincentive for bar owners to allow sex workers to communicate on their premises, for fear that it could be claimed that the bar or management might be materially benefiting from the presence of sex workers in some way (i.e. increased sales and patronage).  So then there is a constant harassment of anyone in a bar who is suspected of being a sex worker.

By tactical reasoning like this, it becomes a strategic minefield in which people are forced to take more chances, and place themselves in the spaces of people they wouldn’t normally trust, simply because those people are likewise willing to take the risk of associating with them.

Communication can’t be understated.  If one can’t take the time to negotiate clearly, has to speak in code to avoid detection, and has to resort to an imply / infer scenario, then it makes it impossible to screen clients to see how agitated they might be, creates an automatic mutual distrust between workers and dates, and makes it hard to set limits about what types of sexual act one is or isn’t willing to perform.  This was a key issue at the heart of the Superior Court of Ontario and Supreme Court of Canada rulings that originally struck down the three anti-prostitution laws replaced by this bill.

3) The Bawdy-house rules.

The ban on “common bawdy-houses” is back, with the bawdy-house defined as a place “for the practice of acts of indecency, a place that is kept or occupied or resorted to by one or more persons.”

This targets massage parlours (if sex is exchanged) and strip clubs (if sex is exchanged).  Additionally, if a sex worker keeps a separate address to work from, it’s considered a bawdy-house. So now by law, sex workers can only work from their homes.  Because it’s oh so much safer for everyone to know where you live.

Of course, one can imagine the condemnation that’s going to be heaped upon sex working mothers who work under the same roof that their children live under, regardless of whether the kids are ever actually present when anything is happening.  But the law actually pushes them to do that.

Sex workers sometimes share a separate address, or prefer to work in places like massage parlours or strip clubs, so they can work together for mutual safety.  Under this law, that’s not a legal option.

4) What constitutes a material benefit from the sale of sex?

“Living off the avails…” returns as “receiving a material benefit that derives” from the sale of sex. It does provide an exemption (subject to interpretation) for some people who live with sex workers, provided that nothing can be construed as an exploitative situation and no drugs are provided to the sex worker:

“… evidence that a person lives with or is habitually in the company of a person who offers or provides sexual services for consideration is, in the absence of evidence to the contrary, proof that the person received a financial or other material benefit from those services…” except “in the context of a legitimate living arrangement with the person from whose sexual services the benefit is derived…”

How that will be interpreted remains to be seen.  It’s not entirely clear if this provision targets assisting arrangements from referrers, drivers, bodyguards, associates and other business partners, if something beneficial (not necessarily cash) is exchanged.  The Justice Minister says it’s up to interpretation of whether the associate is exploitative in any way.  Sometimes, the practical application of something like this is to arrest all, use the law to maximum advantage, and let the courts worry about whether or not a situation is exploitative, after the fact.

Escort agencies, massage parlours (if sex is exchanged) and strip clubs (if sex is exchanged) are all banned by this provision, with a potential sentence of up to 10 years in prison.

5) The new ban on all advertising of sexual services

This bill reaches further than anything previous, by banning all advertising of sexual services.  Anyone who knowingly provides a space in which to advertise (whether in newspapers, online message boards, websites, or any other form of media) can face fines or imprisonment.

Beyond the obvious questions about freedom of speech, this raises other questions.  How much legal responsibility does an Internet service Provider (ISP) shoulder if sexual service advertising is accessed through its networks?  What steps does it need to do to avoid legal action, and how engaged will ISPs need to become in tracking such advertising?  Does this raise questions for other areas of privacy and freedom of speech for Canadians?  When I asked if C-36 might ban porn, one of the lines of reasoning was that the threat of legal action could push ISPs into instituting arbitrary and overly broad content filters, just to be safe.

And finally, is the Internet a public place? MacKay explicitly referred to online advertising, so that would seem to mean that it is interpreted that way in the law.  And while it’s said that sex workers would not be charged for advertising their own services, if the Internet is widely interpreted as a public place “where persons under the age of 18 can reasonably be expected to be present,” that exemption for them might not apply to Internet advertising.

It could almost end up working like entrapment.

Tomorrow: Conflating sex work and human trafficking

(crossposted to Rabble.ca DentedBlueMercedes.  Concerned about progressive media in Canada? Support rabble.ca)

Could anti-prostitution Bill C-36 also ban porn?

One of the concerns that has been raised about Bill C-36 is that “sexual services” is not defined.

Terri Jean Bedford, one of the plaintiffs in the case that overturned the previous anti-prostitution laws, has raised this question a number of times, without receiving an answer.  A professional dominatrix’s job, after all, involves fulfilling a fantasy, and may not include any actual sex acts at all.  Does sex have to happen in order for there to have been a “sexual service?” Where is that line drawn?

It’s because of this vague nature of the terminology that some are asking if the wording could also inadvertently ban advertising and / or paying for sex toys or the services of a sex therapist.  Advertising sexual health services could also come into question.

Is porn a “sexual service?”

Is a sexual service exchanged via pornography?  It could be argued that porn acts as an intermediary, at least, so it might be a question that is subject to the interpretation of whichever judge happens to hear it.

There are people at both ends of the political spectrum who oppose pornography and would be amenable to a ban on it — from the right usually because of concerns about morality, and from the left often because of concerns about the portrayal of women and the possibility that it contributes to rape culture.  There are also opponents at both ends of the political spectrum as well, and for the purposes of this question, it is up to readers how they feel about the prospect of such a ban.  However, people of all political stripes would hopefully agree that such a sweeping form of censorship should at least require a lengthy debate.

Under the original terms of the bill, concerns about advertising sex already treads into the realm of censorship and freedom of speech.  If that is coupled with flawed and vague terminology, it’s reasonable to ask how far beyond the original intent that could be taken.

If the bill could be used to ban porn (and that question might remain entirely speculative until something actually does wind its way through the court system), all it would take is for someone wanting to close their local porn shop to try to sue them for — or push for them to be charged with — advertising sexual services.  There’s no guarantee that anyone would succeed at that, but the possibility that it might is a question worth asking.

Key mechanisms in C-36

There are mechanisms within the bill that would certainly assist such a use of the law.

The bill includes search and seizure powers for materials that are “obscene, a crime comic, child pornography, a voyeuristic recording or an advertisement of sexual services.”  To be fair, all of those items besides “advertisement of sexual services” are already listed in the Criminal Code as materials that can be seized, currently.  But aside from the obviously important proscription of child pornography, none of those other things are characteristically illegal to buy or possess anymore (in the case of voyeuristic recordings, their actionability hinges upon how the recording is obtained), and so we don’t see searches and seizure of pornography, except through some federal departments like the Canada Border Services Agency, which simply confiscates material.  However, this law does ban advertisement of sexual services outright, so there would be greater enforceability.

Additionally, for the purposes of this law at least, the Internet is considered “a public place, or in any place open to public view, that is or is next to a place where persons under the age of 18 can reasonably be expected to be present” — or at least the Harper government sees this phrasing as the best mechanism to include online advertising.

With both the search-and-seizure powers and definition to include online media in the bill, even if it turned out that porn was not legally interpreted as a sexual service, C-36 still provides the structural basis needed to build an anti-porn law, with a minimal amount of effort required.

Soft censorship and stealth

Bill C-36 would allow the Harper Conservatives to institute a ban on porn without appearing to be pro-censorship.  A significant portion of the Conservative base uses freedom of speech as a rallying point, especially when it comes to divisive speech, tabloid-style and gotcha journalism, and hateful (though not necessarily legally hate) speech.  Even calling out hateful speech or non-legal consequences for speech can interpreted as censorship by this contingent.  So if the government wanted to establish a ban, it would probably need to be done by stealth, and look like an accident.

Regardless of how broadly “sexual services” is defined, the ban on advertising could conceivably be used to pressure Internet service providers (ISPs) to institute a content filter system much like MP Joy Smith had been calling for, only months ago.  That is, if ISPs are threatened with the possibility being held legally accountable for any ads obtained through their networks, a content filter then appears to be the path of least resistance.  And no matter how specific ISP programmers might try to be, content filters have a tendency to be arbitrary, overly broad, and filter unintended content, just to be safe.  Even if a solid ban cannot be accomplished, soft censorship would remain possible.

Where persons under the age of 18 can reasonably be expected to be present: the legal tactic

The eerie phrasing of “a place where persons under the age of 18 can reasonably be expected to be present” first raised this question in my mind, because it sounds very much like the legal tactic used in Russia’s law banning all “homosexual propaganda” (that is, anything that portrays LGBT people positively — and I’m not speaking hyperbolically when I say that).  When that law passed, the Canadian and American religious right applauded the move, and began debating ways to bring such a law to North America.  Although it could be a haphazard trek from point A to B, each win that occurs in between provides red meat to key elements of the social Conservative base, and injects legislation into the bedrooms of the nation.

The Department of Justice Public Consultation on sex work ends Monday March 17th.

The Department of Justice Public Consultation on sex work closes March 17, 2014.

Although the questions appear to be stacked, it’s important that people who support decriminalization participate.  There’s certainly no shortage of people filling out the forms and calling for new criminalization.  The questionnaire is here, and Maggie’s Toronto provides some advice on answering positively, here.

If you’re still on the fence about whether you support decriminalization, then please consider answering questions 1-5 with the following:

“I decline to answer from my own experience, but instead call upon the Harper Government to make it a priority to ensure that any decision on sex work be made in full consultation with sex workers themselves, who face the greatest consequences of any law.  It is of particular importance that people who are currently engaged in sex work be consulted and that their experiences be given greater weight.  The recent Supreme Court ruling made it clear that workers’ safety and right to self-determination cannot be compromised.”

Need more convincing?  At RankAndFile.ca, there’s an interesting discussion about how decriminalization along with a union-style approach can lead to much improved conditions for sex workers:

Some of the public discussion of the role of sex workers in the economy has likened sex workers to small business owners or entrepreneurs; they offer a service often as independent contractors. For many sex workers, this is the case: they negotiate directly with their clients on services and payments, they deal with the management of the finances of their work, they hire and fire driving, security, or other staff. Other sex workers don’t own anything and are employees with employers. These workers may be misclassified as independent contractors in their workplaces, but labour and feminist activists should not be fooled by this common attempt to limit workers’ rights by calling them something they are not like taxi drivers and couriers.

I am not a sex worker and I am not pointing to this distinction to buy into any attempts to divide sex workers in the fight to access basic rights and better occupation health and safety standards. Instead, I think the distinction is important, because it illustrates that the labour movement could have a very specific role in improving working conditions for sex workers and creating a greater balance of power between sex workers and their employers, namely by helping these sex workers organize into unions…

Here are my comments to the Department of Justice consultation:

1. Do you think that purchasing sexual services from an adult should be a criminal offence? Should there be any exceptions? Please explain.

Comment: No. An environment in which a buyer is criminalized is still a criminalized environment, and sex workers are then pushed into unsafe situations for the sake of their livelihood. Clients are not going to feel comfortable taking the time to negotiate, and this compromises safety. It also fosters a poisonous social climate for people who engage in sex work, driving workers underground, making it difficult for them to access non-judgmental health and social services, and creating a barrier of distrust between them and authorities.

2. Do you think that selling sexual services by an adult should be a criminal offence? Should there be any exceptions? Please explain.

Comment: No. There are existing laws that address coercion (procuring), underage prostitution and human trafficking. Beyond these points, focus should be on a person’s safety, their autonomy and empowering them to better their lives however they see reasonable. Sex workers gravitate to this work because of either poverty or opportunity, and the greatest positive impact would be to address the poverty that drives the more negative of scenarios.

3. If you support allowing the sale or purchase of sexual services, what limitations should there be, if any, on where or how this can be conducted? Please explain.

Comment: There should be no laws targeting sex work. Any legal discussions should be done with extensive consultation with and consideration of sex workers.

4. Do you think that it should be a criminal offence for a person to benefit economically from the prostitution of an adult? Should there be any exceptions? Please explain.

Comment: There are already procuring laws still on the books which address coercive circumstances and human trafficking. Beyond these, there should not be any laws criminalizing economic earnings from sex work. In other countries, these laws are often unreasonably abused to target sex workers, their spouses, their children, their roommates and more.

5. Are there any other comments you wish to offer to inform the Government’s response to the Bedford decision?

Comment: This consultation needs to consider the experiences of sex workers, particularly those who are still working and seeking to make a safe life for themselves. The Bedford decision clearly showed how criminalization harms sex workers, and the Nordic form of criminalization simply re-establishes the status quo. I would like to see a Canadian model that focuses on sex worker input, and protects, respects and fulfills sex workers’ human and labour rights.

6. Are you are writing on behalf of an organization? If so, please identify the organization and your title or role:

Comment: I am writing as an independent individual, and as someone who has experience in sex work at different times in my life, and with the ability to reflect on and contrast two very different sets of circumstances.

Across the left divide over sex work.

I’m putting on my op-ed hat for this.  The following draws from my own history, but I think it helps provide some insight into the left-wing divide over sex work.  I’m skipping over this very quickly, and I’m sure I’ll probably forget some important distinctions and nuances, so bear with me.

This is two parts in one: a personal experience for context, and then some important distinctions about the divisions among the left and among womens’ rights groups over sex work.

A Personal Experience: A Preface

It takes a certain kind of person to be able to do sex work, and that person isn’t me.  It consumes a lot of personal and emotional energy (which, when compounded with the social stigma, is probably why drug use becomes common, I believe).  It’s fine if you’re the ebullient sort who knows how to recoup and restore that energy, but I’m not — I’m actually a recluse by nature.  Nevertheless, I did sex work at two different periods of my life, and in two very different sets of circumstances.

The first time, I engaged in street-level work at the age of twenty, and it was awful.  Back then, I worked as a male-bodied person for male clients, and was engaging in sex work due to poverty, limited options and desperation. It was complicated by my own gender identity conflict, which caused serious personal issues with my body, as well as an awkward interpersonal dynamic with dates that did not fit my inner self (for one example, nearly everything my dates were attracted to were things I hated). Worse, street-level work is undeniably one of the hardest forms of sex work, with a particular moment-to-moment vulnerability, and the knowledge that no one would be on your side if something went wrong — not police, not friends, probably not family… you’re completely alone.  And it was all too clear to the people around you who you were, and those people consequently made it all too clear what they thought of you.  The street is not a place for pride and a sense of self worth.  If it had been my only experience, then I might have thought differently about sex work.

In my later thirties, out of necessity (a sudden loss of an income while early into gender transition, making it particularly tough to find new work), I did some escorting to make ends meet.  This time, it was quite different, working as a trans woman available to males who were at varying states of self-acceptance, and who were variously straight (or mostly so), queer and/or occasionally pre-trans themselves (that is to say, people who were a form of trans* but not yet comfortable with that or not yet decided on a course of action).  At this time, interpersonal dynamics were different because I was finally who I felt I was supposed to be… and I was at far more peace with my body, even though there would still be some closure to achieve.  I was more mature, and had different expectations.  Additionally, escorting is more often date-like, with more substance and respect, and occurs mostly outside the view of condemning eyes.  But what really stood out from the contrast between the two experiences was the difference in the amount of control I had over my surroundings and my own destiny — my autonomy.

The contrasting differences between those experiences revealed a lot to me about sex work.  When I worked mostly from a position of poverty and survival, I was mostly helpless to the world around me, felt trapped, and would more or less have been easy prey, had I met the wrong person.  When escorting, I was afforded more control of my surroundings, better ability to screen people, the opportunity to negotiate what I would and wouldn’t do, and the ability to quit when I wanted to. Having some sense of personal power over my life made a tremendous difference, and actually resulted in work that I could enjoy at times, personal energy issues notwithstanding.

There could have been a lot more autonomy, though: I still had to worry about police and how an arrest would affect my life; communicating was still risky, and a lot of negotiation was skipped over in the name of “discretion”; I still realized that if something went wrong, I couldn’t turn to the authorities and rely on them for help; I was still concerned for how the attitudes toward sex workers could poison my interactions with the people I needed for support.  Decriminalization on its own does not fix all of these things, but it now seems to me to be a necessary step toward doing so.  I can’t see how it would be possible to reduce the stigma that people experience, if they’re still treated as though their livelihoods are illegal… or in the case of the Nordic model, if they still need to operate under that pretext for the sake of their clients.

This contrast also drove home just how diverse sex work really is.  It’s impossible to assess all sex work as a whole, since the everyday realities vary so completely from one kind to another.  Acting in porn is far different from street-level work, which is far different from escorting, from stripping, massage, professional domination, etc.

The reasons that people might engage in sex work also vary, but I’ve tended to compare and contrast them between terms of poverty and opportunity.  A person’s ability to be satisfied with their life in sex work — and to leave whenever they choose — is directly related to how much personal autonomy and agency they retain.  There are still other factors that can affect a person’s ability to be self-determining, but taking the criminalization and institutional antipathy out of the equation is a tremendous start.  And because a person becomes more empowered and has institutional resources they could theoretically turn to, it also helps reduce the manner, extent and ways in which they can be personally exploited.

These are the contrasting experiences from which I look at the issue of sex work, and the division among the political left, over it.

Across the Left Divide

It’s important to acknowledge that neither decriminalization nor “abolition” (which is probably a misnomer, since it wouldn’t completely eradicate sex work) will eliminate risk, nor will either of them completely eliminate the fact that exploitation occurs. This is important, because abolitionists will often point to the fact that a risk still exists as evidence that decriminalization fails, while erasing the fact that the same is true of abolition… and that the risk may in fact even be compounded by abolition-focused laws.

In a decriminalized environment, there are greater options, and more unconditional support for a person if they are wronged and seek help (although social attitudes toward sex workers can still be a barrier).  Likewise, there is far less deterrent for a person to report exploitation if they are aware of it occurring. Harm is reduced through decriminalization simply by the virtue that it empowers people (well, more accurately, it eliminates much of the disempowerment that anti-prostitution laws institutionalize — it would take more to actually empower).

And an empowered person has greater freedom to choose (or create) less exploitative circumstances.

But I think where the divide among the political left and among feminists (and womens’ rights supporters under any other label) is resides in whether someone sees a sex worker’s autonomy as the desirable endpoint.  Is it enough to place people in a position where they can better determine their own destiny?  Or does government have a responsibility to eliminate all the variables, in order to save the few who might still find themselves in miserable circumstances — even if it increases the hardship and risk for everyone else?  That is the question.

My belief is that government cannot possibly eliminate those variables, and it’s far more practical to give individuals the power they need to address their own needs based on their circumstances.  What is needed is the freedom to communicate, to reduce harms and stigma, and to form independent support organizations that are worker-focused and better positioned to see and address them… something people are not very free to do in the current social climate.

The debate is further confounded (possibly deliberately) by the ever-increasing conflation between sex work and human trafficking, which are actually two very different issues.  Equating the two is a serious derailment of the issue of actual human trafficking, by exploiting a real and urgent problem to attack a tangential population, and divert the funds that could have been used to address actual coercion, abduction and exploitation, directing them instead toward initiatives that will not provide any significant help to those who are genuinely trafficked.

This conflation occurs because the language from abolitionists deliberately equates sex workers with bought-and-sold commodities, portraying transactional sex as though it is the person themselves who is for sale, rather than the service the sex worker provides.  The language that assumes that one is a traded product during commercial sex is understandably enraging.  It would be natural to be infuriated about sex work if that were really the case.  And this is often the way that abolitionists frame the discussion: as though prostitution sells people.  In reality, sex workers sell an experience, from which a they ultimately walk away, with their capacity to direct their own lives intact and their ownership still in their own hands (as much as is possible for any of us, at least).

It is through this framing that the personhood of sex workers is erased, and replaced with a kind of infantilized victimhood in which sex workers are simply helpless and in need of rescue… even from themselves, perhaps.  It is by portraying the worker as the commodity that is for sale, rather than the service they provide, that people can then argue that a worker’s consent is not actually valid consent.  Individual will has ceased to matter.

Of course, there will always be a segment of people who view all sex work and anything that conforms to sexual stereotyping (perhaps even sexuality itself) as violence toward women.  For those people, if they can’t see how patriarchal and patronizing — let alone disempowering — criminalization (which is a regulation of mostly female bodies and mostly female choices) is, then there’s probably no common ground on which we can meet.  I know that there are some very painful experiences that lead people to those conclusions, and I don’t mean to be insensitive to that.  However, my experiences simply lead me to different conclusions.

And while criminalizing the buyer might *sound* like a reasonable middle ground, I really can’t see how it would change the need to work and communicate out of view and in vulnerable or exploitative spaces.  I also can’t see how it would change the level of respect in the dialogue about women (and men, and anyone in between) in the sex trade… other than continually casting them in this two-dimensional role of helpless victim.  In reality, though, criminalization of the buyer is still criminalization.  There’s still the need to work in secrecy, to protect one’s livelihood, to take chances, and to distrust and avoid contact with the authorities at all cost.  For the life of me, as someone who has done this, I cannot see how the Nordic model would be any worthwhile change from the three unreasonable laws that were struck down by the Supreme Court of Canada.  Rather, it is simply a more stealthy way to repackage those same harms and maintain them for the ten or more years that it will take to strike down this new face given to the status quo.

Abolition makes the classic mistake of addressing a symptom rather than the primary cause.  Face it: when the choice is between $1000 a night or $1000 a month at McStarbuMart, that’s not much of a choice.  As long as this is the reality, and as long as there is no political will to address poverty and the enormous gulf that has manifested between accessible incomes and life-sustaining incomes, there will be people who feel a need to engage in commercial sex.

I find that the left-wing and feminist divides over sex work boil down to a question of whether a person believes that a person’s right to personal empowerment and autonomy (including over their body and their life decisions) should be paramount, or if the government’s responsibility to actively protect women should be seen as justification to trump this, regardless of the sex worker’s will and the effect on their surroundings, their lives and their future.

What is being attempted with the Nordic system of criminalizing buying is to simply try to either undermine the argument surrounding a woman’s right to choose, or to allay those concerns.  And for those who don’t look beyond the surface, there may be the temptation to believe that.  Don’t you believe it.

The Federal Government’s slanted public consultation is online until March 17th.  Tell them in no uncertain terms that the consultation needs to consider the experiences of sex workers, particularly those who are still working and seeking to make a safe life for themselves.

(Crossposted to Rabble.ca)

Criminalization by any other name…

In Meghan Murphy’s Globe and Mail op-ed of June 3rd, A prostitution solution: Outlaw the customers, not the hookers, she presents what is often referred to as the Swedish or Nordic model of legislation — removing penalties for those who sell sex but prosecuting the buying of it — as a compromise between the arguments for criminalization and those for legalization of sex work.  Ironically, she phrases this as decriminalization, when it’s actually more of a lateral or distal form of criminalization… but one which still retains the pressure on sex workers to avoid the law and live in marginal circumstances.

Murphy’s argument is in support of that of the not so neutrally named Women’s Coalition for the Abolition of Prostitution, and ignores several issues that exist with the Swedish approach.  The argument is often advanced by groups that see abolition as an ultimate objective, and it’s a curious anomaly in feminist discourse, where a woman’s right to choice and bodily autonomy is held as paramount, and yet a loud faction makes an exception when that choice is one of opting to sell sex.  But whether abolition is the preferable goal is besides the point.

The argument also overlooks issues raised by Justice Susan Himel in her Ontario Superior Court ruling, which has led to the case currently facing the Supreme Court of Canada.  But Bedford v. Canada will only decide on the existing laws, not what the legislation should be, so that too is besides the point for this discussion.

The idea of criminalizing buyers only is seductive, but the practical reality is that when buyers of commercial sex are criminalized, sex workers’ livelihoods become dependent on a targeted group, one which they would endanger, if they work openly.  Whether they are directly subject to arrest or not, sex workers will still need to work in the shadows, and will still be targeted by legal authorities as a means of locating their customers.  And because laws criminalizing the purchase of sex will require evidence of a transaction, it’s naive to believe that sex workers won’t be negatively embroiled in the enforcement of the law.  Where the Nordic model is legislated, sex workers work in increasing isolation, report that accessing assistance is difficult (and requires playing along with a system that treats them as victims needing rescue, whether or not that is the case), and reports the Swedish approach’s merits have had to rely on badly collected data.

Part of the problem is that we’re talking about diverse realities. Street work is not stripping is not escorting is not porn is not Craigslist is not erotic massage.  Sex work also differs by region, and the motives for engaging in it vary considerably as well, from exploitation (which is a far less frequent occurrence than is portrayed, but does happen) and poverty to a pragmatic sense of opportunity.  Any approach to laws pertaining to sex work absolutely needs the input of a diversity of people directly engaged in it, and should be informed by all of these experiences, with an end objective being to minimize harm.

In the late 1980s, I did street work (as male). In 2005, when I started my transition to female and was let go from my job for a period of time, I went into escorting (as trans female), to make ends meet. The two experiences were very different in many ways, but what I most noticed was the level of agency and self-determination I had. If street work (during a volatile time of my life) were my only experience, I might be tempted to support interventionism and Swedish-style laws, but being able to compare and contrast that with my second experience has changed my perspective.  And quite frankly, I found some of my experiences in traditional workplaces far more exploitative and demoralizing than escorting.

First and foremost, sex workers need the empowerment, autonomy and agency to determine their surroundings, have recourse when things go bad, and live without fear of arrest and harassment. And regardless of whether they want to leave sex work, or practice it in *relative* safety, they should be able to do so without the legal and social structures being an impediment.

Nothing is ever ideal or perfect. All we can reasonably do is give people the tools to control their destinies, and assurance of safety and equal support and respect from health and enforcement services if something goes wrong.

And from my experiences, I can’t see how criminalizing the buyers won’t still drive the whole industry underground.

(Crossposted to Rabble.ca)