In a case brought by three sex workers, the Supreme Court of Canada, in December 2013, struck down three provisions of the Canadian prostitution law, because they violated sex workers' human and "constitutional right to security of the person" by imposing "dangerous conditions on prostitution". In June 2014, the Canadian government introduced a new prostitution law, Bill C-36 "Protection of Communities and Exploited Persons Act", which entered into force on December 5.
While the Supreme Court had created the space for a radical change in the approach to sex work by reaffirming that human and constitutional rights apply to sex workers too, democratic procedures in Canada seem to have failed sex workers. The Canadian Pivot Legal Society argues that Bill C-36 has been "consistently misrepresented" and that it "will result in sweeping criminalisation of the sex industry", including sex workers themselves. Others have called it a "hate law", because the safety and security of sex workers was, in fact, not the priority for some who voted for the Bill C-36. One of the Senators, Donald Plett, clearly stated his priority in this regard: "We don't want to make life safe for prostitutes; we want to do away with prostitution."
Canada is not the only state that has passed questionable legislation on sex work. "[S]tates frequently deny sex workers the same human and legislative rights and protections afforded to other workers and citizens," says sex work researcher Jay Levy.
The question is: How do human rights apply to sex workers and what laws and policies should states make? How should sex work laws look like, if human rights are to be respected to the fullest extent? The answer to these questions is controversial - both philosophically and politically. In the past year, numerous countries have put sex work policies on their political agenda - for different reasons and with different goals and outcomes.
Sex workers' rights
There are numerous examples worldwide, where the courts have upheld sex workers' human rights and questioned existing prostitution laws or filled legal grey areas. In New Zealand, where sex work is decriminalised, a sex worker won a case for sexual harassment against a brothel owner. In New York, 1,900 strip club dancers won a labour rights case against their employer, who will have to pay them at least $10m in compensation. Recently an Austrian court has ruled that the cost of forced health checks imposed on sex workers had to be reimbursed.
Both in Germany and in Austria, court rulings abolished to notion of prostitution as being "immoral", thus opening up the space for legal reform and the recognition of sex work as work. The European Court of Justice has repeatedly ruled that "prostitution" is an "economic activity" and that within the European Union member states cannot restrict "freedom of movement", not even for sex workers.
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While court rulings are useful and necessary in reminding us that sex workers have rights too, relying solely on courts to read human rights into existing legislation cannot be the sole answer to injustices that sex workers face. Democracies need to step in to make laws that actually improve sex workers' lives - a goal that has proven difficult to reach.
Historically marginalised and stigmatised, sex workers have a hard time in pushing for a reform of prostitution laws. Most politicians, especially if male and heterosexual, do not wish to be associated with sex work.
Prejudices and lack of knowledge about the topic as well as the unwillingness to engage with sex workers themselves have proven to be hard obstacles to surmount. Often, sex workers are heard in consultation processes, but their views and political claims aren't always taken seriously.
Why sex workers should be heard in democracies
By contrast, anti-prostitution activists calling for a world without prostitution have been far more successful in their lobbying efforts against sex work. They also explicitly distance themselves from self-identified sex workers, who they often accuse of being nothing but criminals. Using the stigma of sex work, anti-prostitution activists have managed to ally themselves with mostly sexually and socially conservative groups in their call for the suppression of sex work.
By using slogans like "end demand" or "abolish prostitution now", they have been calling for the so-called "Swedish Model", in which the act of selling sex is formally decriminalised, while clients are charged with a monetary fine. By increasing the cost of a sexual transaction, the law should work as a deterrent. A variation of the law has been implemented in other small countries, such as Norway, Iceland, and, most recently, Northern Ireland. Supporters of this approach claim that only this particular law will reduce human trafficking as well as prostitution.
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However, the Swedish approach comes with many flaws and open questions. Because its goal is a society without sex workers, the law does not intend to provide any guidance on the laws we need in a society with sex workers. Norway is considering repealing the law, as the evaluation of the law has not been able to prove its success. While the EUROSTAT report on human trafficking does not point to a decrease in human trafficking in Sweden, sex workers' working conditions have worsened. In fact, the "Swedish Approach" criminalises any attempt to create safe working environments for sex workers, as anyone renting indoor space to sex workers can be charged with "pimping".
Ironically, this provision has not reduced pimping, but induced many landlords to put sex workers on the streets in order to avoid a fine for "pimping", as the so-called "Operation homeless" has shown in Norway. Furthermore, Sweden does not allow immigration for the purposes of prostitution and has been deporting migrant sex workers, who are still seen a problem of public order and security. It wasn't until 2011 that a Swedish Court ruled that deporting citizens of the European Union selling sex in Sweden was illegal. Last but not least, even Sweden and Norway tax income from sex work, while refusing to recognise it as labour.
As empirical studies on the implementation of the "Swedish approach" show, its weaknesses in guaranteeing sex workers' human rights, policy-makers also have become sceptical. A Special Committee of French Senate excluded the provision criminalising clients from the proposed new prostitution law in summer 2014 - based on the recommendations of the National Consultative Commission on Human Rights. So far, it is unclear whether France will go forward with the law at all. Britain has also excluded the provision criminalising the purchase of sex from its "Modern Slavery Bill", which has itself been criticised by NGOs for not doing justice to victims of human trafficking. Germany is also working to reform its prostitution law.
The Global Network of Sex Work Projects advocates "decriminalisation" of sex work. So far, only New Zealand has chosen "decriminalisation" as sex work policy, but maybe India will be next. India's chair of the National Commission of Women, Lalitha Kumaramangalam, recently stated that the "Immoral Traffic Prevention Act" should be revised in order to create "conditions conductive for sex workers to live with dignity".
In fact, the existing law casts sex workers simultaneously as dangerous to society and as victims to be forcefully protected from their own choices. Either way, they are not recognised as equal citizens, workers, and members of a social and political community with human rights. By decriminalising sex work, India would set an example for other countries, too. As a law practitioner recently pointed out that "the position of defining prostitution itself as inherently exploitative and a form of violence against women does not allow people in prostitution to access their right to earn a livelihood through sex work."
It is time for democracies to include sex workers in policy-making processes and take them seriously - not just because democratic values mandate it, but because sex workers are the experts on the matter.
Sonja Dolinsek is a blogger and human rights activist focusing in particular on the rights of migrants, sex workers and trafficked persons.