Today sex workers across the world are celebrating as the Canadian Supreme Court, on appeal, ruled that laws around sex work unjustly and unconstitutionally endangered sex workers. It has been a long drawn out case, and some of us are probably more familiar with it than we ever expected to be with any aspect of the Canadian legal system, so some background may be helpful.
Canada has very similar laws to the UK. Sex work is legal, but three mains laws increase the risk of sex workers.The ‘bawdy house’ laws make it illegal to keep a location for engaging in sex work, making any kind of brothel or in-call work technically illegal. The ‘living off the avails’ law, aimed at preventing the exploitation of sex workers by third parties, in practice prevents them from hiring maids, drivers, and even body guards. Lastly the ‘communications’ law makes it illegal to communicate in public for the purposes of engaging in sex work; this makes any kind of street-based sex work illegal, and less possible for street-based workers to screen their clients.
In 2007, three women challenged these laws as going against the Canadian Charter of Rights and Freedoms. Radically they said that sex workers should be treated the same as anyone else by the state. They were not privileged *escorts* as those opposed to sex worker rights will no doubt try to claim, but current and former sex workers who have worked on the streets, in brothels and independently. They just wanted the chance to argue what every sex worker knows, being forced to work alone and in secret puts us in danger.
Many readers may not be aware they won the argument. The original judge ruled that, as argued by the plaintiffs, the laws did endanger sex workers unfairly and violated the Charter. They were supported in this by bodies such as UNAIDS, and opposed by groups such as Vancouver rape relief and The Catholic League of REAL women. The usual unholy alliance of feminists and anti-choice Christians formed, willing to share a platform when it is sex work.
This wasn’t a case about the morality of sex work, but whether they should work in as safe an environment as possible. Those opposed to this nailed their colours to the mast when they opposed the original judgment. Removing laws that harm women did not matter to them in the face of their moralistic objection to adults selling consensual services.
So the case went onto appeal, and today the Supreme Court unanimously gave its ruling (9-0), that the three laws must be removed. This is something that sex workers have been saying for so long that there was a moment of disbelief that our voices were actually listened to for a change. It is worth looking at what the judges had to say about each of these oppressive laws that endanger women:
This paragraph comes at the start of the ruling, but is central to both the decision and what should be a feminist analysis of sex work.
The prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity. They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks. That causal connection is not negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution. While some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so. Moreover, it makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes. The violence of a john does not diminish the role of the state in making a prostitute more vulnerable to that violence.
Antis often claim sex workers idealize their jobs, or accuse us of being sex positive woolly headed liberals. The fact is nothing could be further from the truth. We know the risks, we face them every day. I cannot think of a sex worker friend who has not been assaulted working. However saying we should stop working is no different from saying a victim of domestic violence should leave before they get any support. It is victim-blaming and ignores the many intersections of oppression that might lead to someone choosing sex work. The Judges did not rule on my right to sell sex, they ruled that the state should not have laws that put me at greater risk should I be doing so.
As the judgment goes onto to say;
Specifically, the Court stated that “the harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law. Parliament has the power to regulate against nuisances, but not at the cost of the health safety and lives of prostitutes. A law that prevents street-prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose.
Grandma’s House was a safe house set up for street workers, with the ability to take clients there, too. The idea was that while a serial killer was, yet again, targeting sex workers they would have somewhere safe to work. It was closed as a bawdy house (brothel). This is all too often the attitude of feminism to sex work. A refusal to see that their moral objection to people selling sexual services will not stop anyone doing it, but will lead to laws that put women in danger.
The original ruling, that led to today’s appeal agreed with what sex workers have said for years: stop arresting our partners, let us work together, let us employ maids and drivers, and let us take the time to assess a client.
With respect to s. 210, the evidence suggests that working in-call is the safest way to sell sex; yet, prostitutes who attempt to increase their level of safety by working in-call face criminal sanction. With respect to s. 212(1)(j), prostitution, including legal outcall work, may be made less dangerous if a prostitute is allowed to hire an assistant or a bodyguard; yet, such business relationships are illegal due to the living on the avails of prostitution provision. Finally, s. 213(1)(c) prohibits street prostitutes, who are largely the most vulnerable prostitutes and face an alarming amount of violence, from screening clients at an early, and crucial, stage of a potential transaction, thereby putting them at an increased risk of violence.
Today the Supreme Court of Canada has agreed that it is not the role of the state to pass laws that put women more at risk. The Attorney General tried to argue that by choosing sex work sex workers put themselves at risk, I hope that in a feminist space, I do not need to explain the problems with that. For those who might be struggling, imagine the same argument applied to abortion; you got pregnant by your failure to use contraception, therefore the state has no obligation to provide for you.
There is no doubt that as I write this, people like Mary Honeyball and Vancouver Rape Relief are arguing that the solution for Canada is the Swedish Model, a model that has been shown to endanger women, especially sex workers. This is their feminism, oppose laws that make women safe because you do not like the choices they make. It is a feminism that resembles patriarchy so much that this quote comes to mind.
“The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which was which”
Orwell Animal Farm
Canada has a year to decide what to do; one can only hope that the good sense and desire to treat women equally no matter what their choices wins out over paternalistic feminism and right wing Christianity. As for the UK, currently fighting the Swedish Model in Northern Ireland and police violence such as the Soho raids it can only be hoped that Canada shows a route forward that does not involve arresting women and pushing them into criminality.
Jemima is a writer, contributes to a joint blog, http://sometimesitsjustacigar.wordpress.com/ . A sex worker and co founder of the Everyday Whorephobia project she is clinging onto describing herself as a feminist by her finger tips.