Where We’re At with the Legalization of Sex Work

Maxine Doogan, the president of the Erotic Service Providers Legal, Education and Research Project (ESPLERP), is a self-identified “#politicalwhore.” It’s a tongue-in-cheek designation driven primarily by her mission to decriminalize sex work, a pursuit that began after she grew tired of being treated like a criminal for being a sex worker. And so, around 2008, Doogan organized ESPLERP in response to a failed ballot measure in San Francisco that had attempted to decriminalize prostitution—and in hopes of forming a community that could collectively change the status of their occupation.

It’s grown enough that three years ago, ESPLERP filed a lawsuit in federal court against George Gascón, the current San Francisco District Attorney, as well as other district attorneys from around the Bay Area and then Attorney General of California Kamala Harris. (Despite being hailed as a progressive leader, Harris, who won a U.S. Senate seat in 2016, has faced criticism for her work on anti-trafficking measures with “safety” in mind that some sex workers believe have resulted in the exact opposite for them.) And while the ESPLERP case was thrown out by the U.S. Court of Appeals for the Ninth Circuit last month, its lead counsel, prominent First Amendment attorney H. Louis Sirkin, hopes to move forward with an en banc hearing on the matter.

The timing seems right. Obviously, Republicans and conservatives rule every branch of government, but recent progress in ending weed prohibition—despite some of President Trump’s and Attorney General Jeff Sessions’ rhetoric—shows that we’re already well on the way to rethinking how we view, legislate and police certain recreational activities (or, if you’re moralistic, vices) at the state level. It’s not crazy to think sex work could be next—especially in California, where a lot of the changes around weed happened first and then spread nationally.

Thus, a little primer on how something similar might look for sex work.

The legal precedent has already been established.

“Now is a good time to make this case because of the changes in the law Lawrence v. Texas established in 2003,” explains Gill Sperlein, the local Bay Area counsel on ESPLERP v. Gascón. “The Lawrence case overruled the Bowers v. Hardwick case that outlawed same-sex sodomy in 1986 and established that states and local jurisdictions don’t have the right to regulate private, intimate and personal sex. It also went further to say that morality can’t be the basis for any law.”

“If the law can’t regulate morality,” Sperlein continues, “we want to know what other reason the court has. We want what’s called a ‘heightened scrutiny,’ which is an explainer the state has to provide when regulating certain fundamental rights. They don’t have to do this with most laws, but in these situations, they have to state the reasoning behind them and explain how the law serves their objective.”

Adds Sirkin, “It’s a matter of sexual liberty. We believe people have the right to make their own choices about their sexual conduct, including whether they’re getting paid or paying for it or not.”

So why then did the ‘ESPLERP v. Gascón’ case get tossed?

“The Ninth Circuit misinterpreted the Lawrence v. Texas majority decision, written by Justice [Anthony] Kennedy, in which he talks about the intimacy of the relationships he believes the Lawrence case protects,” Sirkin says. “The Ninth Circuit insinuated that ‘intimate conduct’ means an ongoing relationship. I believe ‘intimate conduct’ refers to sexual conduct [more generally].”

The Ninth Circuit also contended that since buying and selling sex is illegal, the Lawrence decision didn’t apply. In general, people in favor of criminalizing sex work often conflate erotic labor with nonconsensual human trafficking, including Gascón. “There are people victimized on a daily basis, under duress, beaten,” he told the local ABC affiliate. “Having said that, I don’t negate the fact there may be some consenting workers, and if there are, how do we differentiate one from the other.”

“May?” Obviously there’s plenty of consensual sex work, right? Sex work and sex trafficking aren’t the same thing. Why do celebrities and politicians always seem to be equating the two?

“That’s really where the battle is,” Sperlein says. “A lot of well-intentioned people want to protect people from human trafficking, but their approaches to policy are misguided. In fact, there’s clear evidence that decriminalizing prostitution leads to better protection against human trafficking.”

“This conflation is just a strategy,” Doogan tells me. “I see their real end goal as eradicating everything and returning to that fantasy place of sexual purity that’s never actually existed here in America. People create false and misleading narratives about sex workers, and then, they come after us.”

Generally speaking, she says, “It’s difficult to get people out of their fantasies about who sex workers are. So much gets projected onto us—by political institutions as well as Hollywood—which is really damaging because sex workers aren’t usually afforded any voice. When you’re criminalized, you can’t have a voice.”

It also means you can’t count on the police.

In San Francisco, the police have often prevented erotic service providers to band together by forcing women to become informants to avoid their own arrest. “The police are in a constant state of arresting us and turning people into informants, which made organizing together especially challenging at the beginning,” Doogan says. “You never knew who you were working with that the police were threatening with custody loss or jail.”

There’s a larger issue at play, too: “People don’t come forward to report actual human trafficking and pimping situations, because more often than not, the women reporting that information wind up getting arrested themselves,” Sperlein says. “The same holds true for customers or clients who might see something that doesn’t look right. There’s already a disincentive to come forward because of the moral judgment that comes with hiring a prostitute, but on top of that, they risk being arrested themselves.”

If Doogan, Sirkin and Sperlein are successful at decriminalizing sex work in California, what does that mean for similar laws throughout the rest of the country?

“As a Midwesterner, it’s easy to see that the West Coast is always a leader on social issues,” says Sirkin. “And we definitely want decriminalization to move east.”

And beyond that?

“We need a law that says family law courts can’t use being a sex worker as a way to strip someone of the custody of their kid. We need laws that prevent landlords from sexually harassing us after we start renting because of what we do,” Doogan says. “We need to laws that prevent adult film performers from losing their professional or teaching credentials because of moral turpitude laws.”

In this way, Doogan, Sirkin and Sperlein also completely get that what they’re attempting to accomplish is much more of a marathon than a sprint.

“We see the inroads that have been made with marijuana in the last 20 years,” Sperlein says. “We know our battle could have a long run like that. This isn’t happening overnight, but we want people talking about the issue and thinking it through in the meantime.”