1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...

Regulating Sex Work
Adrienne D. Davis 1
VERY ROUGH DRAFT: please do not circulate or quote without permission
Most commentators on sex markets focus on the debate between abolitionists and
those who defend and support professional sex workers. This paper, instead, looks at
debates among the pro-sex work camp, uncovering some latent tensions and
contradictions. It shows that, within the sex as labor camp, some stress the labor aspect,
urging that professional sex workers constitute a “vulnerable population,” similar to other
laborers who perform highly risky and/or exploited labor, and should be regulated
accordingly. In this view, sex work would be assimilated into other labor. Others,
though, take a more libertarian approach. They exceptionalize this form of labor, arguing
that because it is sexual it should be exempt from state scrutiny and interference. In sum,
while both agree that professional sex work should be decriminalized, when one turns
from the criminal to the regulatory perspective, the paper shows how libertarians and
assimilationists could not be more opposed. The paper contends that neither of these
views is satisfactory. Sex work could very well be legalized—if we have the political
and moral will to do so. The paper explores a regulatory structure that might govern sex
work markets. To do so requires a break with both assimilationism and erotic
exceptionalism.
The paper proceeds in four parts. The first part explores the discourse and debate
over professional sex. It summarizes, briefly, the abolitionist position, often identified as
the dominant feminist position. It then turns its attention to the pro-sex work camp,
teasing out various strains. While most legal discussions of sex work address the debate
between sex work advocates and abolitionists, by focusing within the sex work discourse
this Section reveals a latent tension within it, those who emphasize the sexual part of sex
work to argue for a libertarian end-state, versus those who emphasize the labor part of
sex work and see “work” as a way to demand greater state regulation of sexual
commerce. Thus, while both view “work” as a legitimizing lens, they ultimately envision
starkly different, even contradictory, relationships between sexual commerce and the
state. Thus, while both may urge decriminalization, assimilationists and exceptionalists
are quite opposed.
The second section shows how the rhetoric of sex is “just” labor can be overly
simplistic and terribly misleading. From a policy perspective, merely insisting that sex is
“just” work/that sex be assimilated into work invokes a monolithic, idealized workplace
that ignores the starkly different manifestations of work and its regulation in postindustrial
global economies. This section explores how employment, labor, and
discrimination law regulate the various hazards, risks, conflicts, and disputes that arise in
the modern workplace. In the process, it exposes the complete diversity of work and its
regulation. Although assimilationists clearly have in mind a vision of how “work” is
1 The conceptualization of this project has benefitted immensely from conversations with Susan Appleton,
Scott Baker, Marion Crain, Elizabeth Glazer, John Inazu, Greg Magarian, Eric Miller, Mireille Miller-
Young, Adele Morrison, Anca Parvulescu, Bob Pollak, Jeff Redding, Laura Rosenbury, Peggie Smith,
Susan Stiritz, and Rebecca Wanzo, as well as the Washington University School of Law Faculty
Colloquium and the Washington University Political Theory Workshop, the Hofstra Colloquium on Law &
Sexuality, and my Ladies Who Do Theory Writing Group—Gretchen Arnold, Marilyn Friedman, Ruth
Groff, and [Linda Nicholson].
1

egulated, their claim to a universal workplace or regulatory structure is a miscue from
how labor law actually functions. Workplace regulation today is varied, differential, and
under immense contest.
The second half of the paper then turns its attention to whether sex work could be
effectively regulated, once we break from both assimilationism and exceptionalism.
Section III stresses the extent to which sex workplaces are not like most workplaces.
Most workplaces are not characterized by the particularities of sex work, the culture of
alcohol and drinking and drugs; the homosocial “mob” context; the blurred line between
re-negotiations and assaults; a similarly blurred line between on-site/off-site (that is onduty/off-duty)
identities; and employer expectations of “free” services that can combine
to make sex for hire more dangerous for workers than other forms of labor. Crucially, the
danger is coming largely from customers and patrons (and managers and owners) rather
than from machines or mine collapse.
Additionally, the assimilationist/“sex is just work” mantra misses the ways that
sexual services differ from each other, posing what the paper shows to be radically
different regulatory challenges. 2 It rejects schema rooted in moralism that categorize sex
for hire along lines of proximity to intercourse. (Such schema tend to envision sex for
hire on a continuum based on sexual contact between workers and consumers,
envisioning lap-dancing as midway between phone sex and prostitution.) The paper
contends instead that, from a labor and regulatory model, the inquiry would be worker
danger and safety, replacing morality with geography. Taking seriously the challenge of
legalizing, not just decriminalizing sex for hire, the paper suggests a different schema, of
sexual geography. In this model, the most dangerous jobs are those that take place in
purely private spaces, frequently with multiple consumers and little protection for
workers. This would include non-brothel prostitution (street or escort) and out-call exotic
dancing (Duke LAX, two dancers working in a house rented by an athletic team, is
emblematic). The middle category are those forms of sexual services that take place in
commercial establishments open to the public, frequently with multiple workers servicing
multiple consumers, e.g., prostitution in brothels and club dancing, whether contact or
non-contact. In these contexts, management is well-situated to protect workers. Finally,
the least dangerous are those services in which the worker and consumer are in different
geographies, e.g., phone sex and other new media sex, although account must also be
made for the physical proximity of employers and supervisors. Governance should
replace a moral with a danger continuum. 3 In sum, the rhetorical claim that sex work is
“just like” any other work is a miscue, one that distracts us from both the distinctiveness
2 Cf. Laurie Shrage [add cite] (rejecting any unitary meaning of prostitution and instead contending it is
historically and culturally specific). See also Prabha Kotiswaran, Born unto Brothels: Toward a Legal
Ethnography of Sex Work in an Indian Red-Light Area, 33 LAW & SOC. INQUIRY 579 (differentiating
prostitutes according to their contractual autonomy and relationship to property tenancies); Elizabeth
Bernstein, What’s Wrong with Prostitution? What’s Right with Sex Work? Comparing Markets in Female
Sexual Labor, 10 HASTINGS WOMEN’S L.J. 91 (comparing how race, body capital, and other factors shape
street prostitutes experiences in San Francisco). [: should I add Cabezas here? (breaking down monolithic
categories of sex work).]
3 “Danger” or risks from sexually transmitted diseases, however, do continue to map onto the sexual, moral
contact continuum. The paper discusses how these health risks might be managed, drawing from the
pornography industry’s experience with self-regulation, whose effectiveness is highly debated. [ check
Dan Kahan’s work on how questions of science turn into culture wars. Is it relevant?]
2

and the diversity of sex work. Even taking into account the diversity of workplaces, sex
work would almost certainly pose distinctive regulatory challenges. Contrary to the
assimilationists, if markets for sex are to be not merely decriminalized, but also what
many advocates for sex work urge, fully legalized with attendant worker rights and
protections, then we must take account of the particular characteristics and regulatory
challenges posed by commodified sex. 4
Other aspects of sex work, though, might be tougher to regulate. Some sex work
advocates find the idea of brothel or dance club owners or other sex employers taking
account of patrons’ racial or other bodily preferences, as well as their fetishic
preferences, inherently offensive, or “degrading.” If safety standards regulate much
workplace danger, then advocates imagine that the consumer preferences they view as
degrading will be dealt with through the application of anti-discrimination norms (again
one hears, it’s “just like any other workplace, e.g., selling a sweater.” What we uncover
is a latent ambivalence among nominally pro-sex work campers. The quick embrace by
some of this imagined set of regulations manifests their ambivalence: even as they urge
professional sex be denominated as legitimate work, they turn to discrimination law to
delegitimize and eradicate the sexual preferences that comprise this market. This
imagined set of regulations will rid sex markets of outré customer preferences once and
for all, firmly entrenching vanilla as the sexual norm. While many advocates for
legitimized sex markets avoid the language of moralism here, instead urging the “same
protections” for sex bargainers as currently are given to other workers, I argue that, again,
this misunderstands how sex markets work and their distinctiveness. Hence, the Essay
concludes that markets for sex could most likely be regulated, albeit imperfectly, against
some workplace risks, but less so against the “degrading” part. Degradation, that is,
things commentators denominate as “degrading,” may be built into markets for sex.
This paper has two audiences. First, feminists on both sides of the debate: mainly
those who advocate sex for hire as legitimate labor but also those who seek to eradicate it
as violence against women. My hope is to cut through some of the heat and shed some
much-needed light. Second, labor scholars have largely overlooked how recognizing sex
as legitimate labor might challenge and transform workplace organization and
regulation/sex work. 5 Regulation is the implicit key and is what is sought in the
legalization movement (as opposed to those who limit their efforts to decriminalization).
Confronting the ways that commodified sex fits into and yet challenges and transcends
conventional paradigms of labor will yield a more nuanced vision of sex for hire, and also
hopefully shed some light on contemporary contests over labor, discrimination, and
regulatory strategies.
This paper sits at the nexus of several scholarly and political discourses. Of
course, it implicates debates over sex work, which has enjoyed surprisingly little
theoretical attention from law. Notable exceptions include Catharine MacKinnon,
Margaret Baldwin, Martha Nussbaum, Sylvia Law, Kimberly Yuracko, and, more
4 Now, some sex markets are legal, i.e., erotic dancing and phone sex; others are illegal, i.e., prostitution.
Decriminalization is a precursor for illegal activities. Full legalization, or regulation, though, might be
sought for those markets that already are decriminalized.
5 To the extent sex work has come up in labor and employment law scholarship it is mainly in the context
of exotic dancers’ organizing as unions under the NLRA or claiming employee versus independent
contractor status. See infra notes [x] and accompanying text.
3

ecently, Prabha Kotiswaran. 6 It also, though, implicates fairly directly discrimination
discourse, questioning the applicability of Title VII to certain forms of sex work and
contemplating whether appearance employment should continue to enjoy its de facto
exemption. For instance, Russell Robinson has suggested that film casting decisions
could and should be brought within the scope of Title VII, while Deborah Rhode recently
has contended that appearance should enjoy the same anti-discrimination protections as
conventional employment. 7 Relatedly, others have explored whether “intimate
discrimination” violates egalitarian norms. 8 And of course, it will touch on discourses of
racialized sexuality, or what Siobhan Brooks and Adam Green have termed “erotic
capital,” the extent to which desire is inflected by historical structures of subordination. 9
A couple of important caveats. First, to the dismay of many, the Essay does not
intervene in the underlying debate whether sex for hire is legitimate work or systematized
violence and abuse of women. Second, it is not my argument that workplace regulation
is all that is needed to resolve all of the problems presented by sex for hire. As Audrey
Macklin observes: “It is impossible to test this hypothesis by introducing prostitution into
a world where it does not exist.” 10 Third, this paper adopts an explicitly gendered
analysis for two reasons. While there are, of course, male and transgendered sex
workers, they appear less organized than those who identify as women. Men are also less
visible in a debate that often focuses on the gendered effects of sex work and its
criminalization on women. 11 Hence, while this paper takes seriously the need to account
for male and transgendered sex workers, it does not separate out their issues and
concerns, except in some discrete instances. 12
In addition, for several reasons, this paper does not engage meaningfully with
pornography as sex work. First, many who perform in adult films view themselves as
actors to the exclusion of being sex workers. To the extent that this paper is trying to
capture and interrogate the discourse of sex work many pornography performers would
resist this denomination. 13 Second, for the last half century the law has drawn a clear line
between pornography, which is protected under the first amendment, and prostitution,
6
Margaret A. Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law Reform, 5 YALE J.L.
& FEMINISM 47 (1992); Prabha Kotiswaran, Born unto Brothels: Toward a Legal Ethnography of Sex Work
in an Indian Red-Light Area, 33 LAW & SOC. INQUIRY 579; Sylvia A. Law, Commercial Sex: Beyond
Decriminalization, 73 S. CAL. L. REV. 523 (2000) (; Catharine A. MacKinnon [decide which to cite here,
from Signs or monographs]; Martha C. Nussbaum, “Whether from Reason or Prejudice”: Taking Money
for Bodily Services, 27 J. LEGAL STUD. 693, 693-94 (1998); Kimberly A. Yuracko, Private Nurses and
Playboy Bunnies: Explaining Permissible Sex Discrimination, 92 CAL. L. REV. 147 (2004).
7
Russell Robinson, Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms,
95 CAL. L. REV. 1 (2007). See also Michael J. Frank, Justifiable Discrimination in the News and
Entertainment Industries, Does Title VII Need a Race or Color BFOQ?, 35 U.S.F. L. REV. 473 (2001).
DEBORAH L. RHODE, THE BEAUTY BIAS: THE INJUSTICE OF APPEARANCE IN LIFE AND LAW (2010).
8
See, e.g., Elizabeth Emens, Intimate Discrimination: The State’s Role in the Accidents of Sex and Love,
122 HARV. L. REV. 1307 (2009); Lisa C. Ikemoto, Male Fraud, 3 J. GENDER RACE AND JUSTICE 511
(2000); Note, Racial Steering in the Romantic Marketplace, 107 HARV. L. REV. 877 (1994) [look for others
on personals ads].
9
*BROOKS, supra note [x]; [add Adam Green citation].
10
Macklin, supra note [x].
11
[add footnote on trans sex workers, some of whom do I identify as women and therefore incorporated in
that analysis.]
12
On male sex workers, see [craft a footnote]
13
[add quotations/citations on this point.]
4

which is not. Sex in the course of creating a movie, video, or photo is considered
“expression,” which cannot be censored based on its content, even if that content is
offensive. 14 Hence, law views those who work in pornography as being paid to create a
protected expression, while those who work in prostitution are paid for sex. 15 Of course,
the pornography/prostitution distinction is unstable and questionable. 16 Many actors in
pornography earn the majority of their living by headlining at exotic dance clubs as “fill
in title.” 17 In this sense, their work in pornography is the platform for a more lucrative
career in sex work. In addition, with regard to the expression/sex distinction, if everyone
14 Roth v. United States, (1957). The exception is obscenity, which is exempt from first amendment
protection because it offends community standards of decency. See Miller [fill in citation and add
parenthetical with 3-prong standard; Under Miller, as long as the work, as a whole, has some “serious
literary, artistic, political, or scientific value,” the first amendment protects its distribution.]. The
distinction was re-visited in the 1980s when California prosecutors argued that an adult film producer was
guilty of pimping because he had hired five women to perform sex acts for a film. The California Supreme
Court ruled that the state’s anti-pandering, or anti-pimping laws were not intended to apply to pornography
and that the acting fees were not paid “for the purpose of sexual arousal or gratification, his own or the
actor.” California v. Freeman, [add citation; also, is more of this a quote than I have captured by my
quotation marks?] (emphasis added). (The sexual gratification of people who watched the movie appeared
to be irrelevant.)
15 Recent legal rulings continue to uphold and even reinforce the pornography/prostitution dichotomy. For
instance, A recent New York ruling reiterated the dichotomy, also noting that “Prostitution is and has
always been intuitively defined as a bilateral exchange between a prostitute and a client.” [add cite; also, is
the next set of quotations from the same case or from the Colb online article about the distinction?] [“Most
of us typically think of prostitution as involving a customer who pays a prostitute for providing sexual
services. We intuit that pornography, by contrast, involves a customer paying an actor for providing sexual
services to another actor./In other words, prostitution is generally understood as the bilateral trading of sex
for money, while pornography involves the customer of an adult film paying money to watch other people
have sex with each other, while receiving no sexual favors himself in return.”; “Most of us typically think
of prostitution as involving a customer who pays a prostitute for providing sexual services. We intuit that
pornography, by contrast, involves a customer paying an actor for providing sexual services to another
actor.] Oregon's Supreme Court overturned laws prohibiting live sex shows in 2005
http://www.deseretnews.com/article/615154044/Oregon-court-overturns-2-sex-show-laws.html
16 For instance, Sherry Colb noted that the New York Penal Law’s definition of a prostitute as one “who
engages or agrees or offers to engage in sexual conduct with another person in return for a fee” would
probably encompass adult film actors. Thus the distinction may not hold up to statutory scrutiny. Sherry F.
Colb, http://articles.cnn.com/2005-08-12/justice/colb.pornography_1_prostitution-ring-sexual-servicespornography/4?_s=PM:LAW.
She also observes that “Though two people may very much want to have
sex with each other in private, the law can intervene to say that they cannot, just because one of them seeks
money and the other gratification, for example. If, however, both members of the couple are in it for the
money, and there is a man with a camera taping them, then the sex is insulated by the Constitution from
legal regulation.” Id.
Of course, in addition to the doctrinal vagueness, to many theorists on both sides of the debate,
pornography is on a continuum with prostitution. See, e.g., ANDREA DWORKIN, Pornography and Male
Supremacy, in LETTERS FROM A WAR ZONE 226, 230 (1993, 1988) (“Politically, culturally, socially,
sexually, and economically, rape and prostitution generated pornography; and pornography depends for its
continued existence on the rape and prostitution of women.”); CATHARINE A. MACKINNON, WOMEN’S
LIVES, MEN’S LAWS 160 (2005) (“Pornography is an arm of prostitution.”). [add cites from other, pro-sex
work side].
17 [add citation].
5

taped prostitution “acts” and posted them on the internet, would the acts then qualify for
the pornography exemption? 18 Finally, pornography is itself increasingly in question as
work. As many have noted, the internet is eroding the line between the conventional
pornography industry and non-commodified sex. Sex-act videos are increasingly likely
to be available at no cost and the “actors” unpaid, thereby calling into real question the
extent to which it continues to comprise work. 19 Hence, for all of these reasons, although
there is a sophisticated discourse and academic literature on labor dynamics in adult
films, this paper will largely not engage with them. 20
The fifth and final caveat is one about language. I use the term professional sex
because [fill in]. I use commercial sex, sexual commerce, and commodified sex
interchangeably with professional sex. On the demand side, I call consumers of paid
sexual services customers, patrons, and clients interchangeably. I self-consciously use
the “customer” language to confront and unsettle how a full embrace of market logic and
norms can be unsettling. The denomination “customer” suggests the possible legitimacy
of their preferences for different kinds of sexual services, putting purposeful pressure on
those who advocate for legalizing sex markets to contemplate the logical end of
commodifying sex.
I. DISCOURSES OF LABOR & LIBERTARIANISM
The commodification of activities conventionally associated with women—care,
sex, and reproduction—has long generated debate and controversy, especially among
those whose first principles are feminist, i.e., to sex equality and destabilizing the
sex/gender system. 21 While subject to much critique, care activities have long been
heavily commodified and are largely unregulated, or, more precisely, occur in what
18 Also rejecting the compensation dichotomy, Sherry Colb notes that, “Odd as it may seem, what appears
finally to make all of the difference is the mode of gratification for the person who is paying but not
himself seeking money.” Colb, supra note [x]. Colb contends that the true distinction may lie in the
mechanics of sexual excitement and gratification. [check these quotes: “The ultimate demand for
pornography comes from the viewer of pornography, and what excites him is the watching of the adult
film, rather than any physical act performed on him by another person. The "enjoyment" of pornography is
therefore as "speech," rather than as action.” Though real sex occurred in the making of the pornographic
film, this fact is only relevant insofar as it is known (or believed) by the viewer. If, for example, the entire
film were created with highly realistic computer graphics, but the viewer believed that what he saw was
real, then he would enjoy the material just as much.; Because the impact of pornography occurs through the
mediation of an audience witnessing a performance, rather than an audience receiving physical services
from a performer, pornography and its making qualify as First-Amendment protected speech.]
19
[add academic cites if available]; see also Drowning in Porn, New York Mag. 26 (Feb. 7, 2011) [add a
parenthetical].
20
See, e.g., [please find the iconic cites for academic work on pornography. Look at Constance Penley and
she should be a guide to other scholars. I want to do a race string cite to my colleague, Mireille Miller
Young’s work on race and porn]
21
There are, of course, many, contested definitions of feminism. I use Jodi Green’s adaptation of Gayle
Rubin that feminism is dedicated to destabilizing the sex/gender system. [add cites to Jodi Green and
Gayle Rubin; see if other leading feminists also use this or a similar definition]
6

Elizabeth Emens has called a “litigation-free zone.” 22 Reproduction is currently in a gray
area of regulation and commodification, with increased technological capacities
generating much debate over the legitimacy of such markets and their regulation. 23 The
last of the troika, professional sex, is the subject of this paper and has been particularly
contentious. Sex markets are diverse, and so is their treatment by the state. Purchase of
actual sex is currently criminalized, but filming and distribution of sex acts
(pornography), erotic performances which may include sexual acts performed on
customers, e.g., lapdances, erotic massages, and sexual interactions that do not involve
touching (e.g., internet and phone sex) are all legal [check on any limits imposed on new
media sex?]. 24 While sex markets are diverse, the stigma and moralism associated with
them is not. Neither commodified reproduction nor commodified care entail the social
reprobation commodified sex does. 25
A. The Debate over Professional Sex: A Primer
Interestingly, many self-identified feminists join conservatives in opposing legal
markets for sex. While conservatives typically condemn professional sex in moral terms,
feminists do so in a different register. 26 Many feminists characterize commodified sex as
22 Emens, Intimate Discrimination, supra note [x], at 1311[do other people make such a distinction?
Maybe early Critical Legal Studies?] [explain answers the cls/Foucault critique that law is always
operative] Care markets are socially acceptable in some large part because “[a]t the political level, live-in
caregivers are widely understood to perform the socially necessary (if devalued) task of child-care. Their
employers are typically middle- or upper-class professionals, a powerful constituency. In contrast, the
labor performed by exotic dancers is alternately viewed as demeaning to women and/or immoral; their
employers and customers lack the respectability and the clout of affluent professional parents.” Macklin,
supra note [x], at 182-183. This means that commodified care work is both socially acceptable and largely
unregulated. See, e.g., MARY ROMERO, MAID IN THE U.S.A. (1992); [add other Romero cites]; Peggie
Smith [add cites]; [add others].
23 For example, contrast Michigan, where statutes prohibit enforcement of surrogacy contracts and
parenthood defaults to the birth mother [or best interests standard?] with California where both the
judiciary and legislature provide mechanisms to enforce such agreements. [add cites]. For discussion of
the legitimacy of surrogacy agreements, see for example [cite Marjorie M. Shultz, add other cites].
24 “Currently, prostitution is legal and regulated in countries such as Austria, Germany, Greece, the
Netherlands, Switzerland, and Turkey.” Chi Mgbako & Laura A. Smith, Sex Work and Human Rights in
Africa, 33 FORDHAM INT’L L.J. 1178 (2010). [sale, purchase, and procurement; partial decriminalization]
Other countries distinguish between procurement and delivery and articulating a separate state interest in
regulating procurement methods.
Carmen & Moody [Even in the two jurisdiction where it is legal, aspects are policed by criminal law:
Nevada rental rules, etc are criminal I think] [Contra criminalizing johns: “Why, [prostitutes] ask, should
men be punished for paying them, but not punished for raping or robbing them?” Sex Workers and Sex
Work, supra note [x], at 3.]
25 This is not to say that people do not moralize about these activities—they do. There is often an
expectation that women will render these activities selflessly, that is for free. See, e.g., McClintock, supra
note [x], at 1 (noting not only does “[s]ociety demonize[] sex workers because they demand more money
than women should, for services men expect for free.” but even “Shopping for others is work a woman
generally does for free, and constitutes, as such, the hallmark of gender normality.”) [add cites on the
altruism debate; does Zelizer fit here on The Purchase of Intimacy?]; see also Nussbaum, supra note [x]
(using other forms of labor to question anti-commodification stances towards prostitution.).
26 [moral reform background]
7

abusive of women 27 and a human rights violation 28 —it is an inherently “degraded
exchange.” 29 They reject it as a legitimate form of labor, instead seeking its eradication
and prohibition. According to philosopher Carol Pateman, “When women’s bodies are
on sale as commodities in the capitalist market, the terms of the original contract cannot
be forgotten; the law of male sex-right is publicly affirmed, and men gain public
acknowledgment as women’s sexual masters – that is what is wrong with prostitution.” 30
Catharine MacKinnon has a similar formulation, “Women are prostituted precisely in
order to be degraded and subjected to cruel and brutal treatment without human limits; it
is the opportunity to do this that is exchanged when women are bought and sold for
sex.” 31 Kathleen Barry puts it perhaps most strongly: “The sex men buy in prostitution is
the same sex that they take in rape—sex that is disembodied, enacted on the bodies of
women who, for the men, do not exist as human beings.” Legal philosopher Margaret
Radin makes a different point, that commodified sex cannot exist with our aspirations for
its decommodified form. 32 These insightful and influential feminists conclude that the
27 She continues, “Men decide whether it is sex they pay for, or sex they take by force or with consent.”
KATHLEEN BARRY, THE PROSTITUTION OF SEXUALITY 37 (1995) [hereinafter THE PROSTITUTION OF
SEXUALITY]. Elsewhere, Barry says:
This misogyny, the use of prostitutes to act out one’s contempt for the lower and degraded sex, is
the single most powerful reason why prostitution has always been considered a cultural
universal—the oldest profession, the indestructible institution, the necessary social service. It
intersects with the domination of women at all levels of society.
KATHLEEN BARRY, FEMALE SEXUAL SLAVERY 137 (1984). [apparently Barry’s position changed over
time; please incorporate that into this footnote].
28 “The abolitionist position treats all prostitution as a problem of human rights, to be condemned
uncompromisingly, like slavery, and never to be equated with acceptable practices like work, or with
legitimating ideas like consent and contract.” Larson, supra note [x], at 680.
29 Bernstein, supra note [x], at 109.
30 CAROLE PATEMAN, THE SEXUAL CONTRACT 208 (1988). Elsewhere, Pateman elaborates that
“Prostitution is the use of a woman’s body by a man for his own satisfaction. There is no desire or
satisfaction on the part of the prostitute. Prostitution is not a mutual, pleasurable exchange of the use of
bodies, but the unilateral use of a woman’s body by a man in exchange for money.” Id. at 198. In
Pateman’s view, such “sexual contracts” “both established orderly access to women and a division of
labour in which women are subordinate to men.” Id. at 119. See also Laurie Shrage, Should Feminists
Oppose Prostitution?, 99 ETHICS 347 (1989) (“most feminists find the prostitute’s work morally and
politically objectionable. In their view women who provide sexual services for a fee submit to sexual
domination by men, and suffer degradation by being treated as sexual commodities.”).
31 Catharine A. MacKinnon, Prostitution and Civil Rights, 1 MICH. J. GENDER & L. 13, 13 (1993). See also
CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 168 (1991) (“Because the stigma
of prostitution is the stigma of sexuality is the stigma of the female gender, prostitution may be legal or
illegal, but so long as women are unequal to men and that inequality is sexualized, women will be bought
and sold as prostitutes, and law will do nothing about it.”); WOMEN’S LIVES, MEN’S LAWS, supra note [x],
at 159 (“Perhaps when women in prostitution sustain the abuse of thousands of men for economic survival
for twenty years, this will, at some point, come to be understood as nonconsensual as well.”); Andrea
Dworkin, Prostitution and Male Supremacy (1992) (rejecting prostitution as male dominance). [check
MacKinnon (1983)];
32 MARGARET JANE RADIN, CONTESTED COMMODITIES ([add a good quotation for the parenthetical]).
Contrasting prostitution with other forms of disputed commodification Radin says:
The risks of a black market in body parts are slim because the buyer must use a regulated
professional and health care facility to get the part installed. Similarly, even though baby sales are
8

injuries and harms of commodified sex warrant its continued criminalization, and many
contend the state does not do enough to eradicate it. 33 Indeed, for some, ending
prostitution is the “new abolition.” 34 In sum, opposition to sex markets has a long and
rich feminist pedigree. 35
On the other side, different strains of feminist thought argue the legitimacy of
professional sex. Some do so from a pro-sex perspective, arguing that [add quote]. 36
Relatedly, some contend that decriminalized sex exchanges have the potential to subvert
patriarchy, challenging the social mechanisms by which some women are socially slotted
and raised to be “good girls.” In this conceptualization, commodified sex becomes a
“category of radical sexual identity.” 37 Others argue that all women bargain for sex, an
argument that dates back to nineteenth-century critiques of the dichotomy between
marriage and prostitution as a false one. 38 [add quote from Gayle Rubin 39 ] In this view,
routinely arranged in the grey market, parental rights can only be established in court. By
contrast, prohibitions against commercial sex are notoriously difficult to enforce.
Radin, [add cite], at 537 (footnote omitted). Margaret Jane Radin [add cite] (characterizing prostitution as
double bind where both commodification and non-commodication can be harmful). See also ELIZABETH
ANDERSON, VALUE IN ETHICS AND ECONOMICS (1993) (commodified sex has negative influences on
gratuitous sex); Elizabeth Anderson, Is Women’s Labor a Commodity?, 19 PHIL. & PUB. AFF. 71 (1990).
33 See also Bernstein, supra note [x], at 93 (“Radical feminists usually have argued that legalization is the
state’s official endorsement and the ultimate patriarchal expression of ‘the traffic in women.’”); Mgbako &
Smith, supra note [x], at 1178 (“The antiprostitution feminist camp characterizes prostitution as an
exploitative institution of patriarchy, a form of sexual slavery and violence against women, and therefore a
violation of women's rights.”).
34 [work on this footnote: Add footnote on abolition, trafficking, slavery as intentional metaphor.] See
supra note [x] [distinguishing procurement, delivery, punishment of consumer]
35 In addition to MacKinnon, Pateman, and Barry, see also Mary Ann Becker, A Review of The Prostitution
of Sexuality: The Global Exploitation of Women (reviewing Kathleen Barry), 52 DEPAUL L. REV.
1043, 1044-45 (2003) (“ while pornographic media are the means of sexually saturating society, while rape
is paradigmatic of sexual exploitation, prostitution, with or without a woman's consent, is the institutional,
economic, and sexual model for women’s oppression.”);
36 [add cite]; see also Mary Joe Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), 105
HARV. L. REV. 1045, 1059 (1992) (“The arguments that sex workers are making to assimilate their work
into the wage market appeal to a sexualized femininity that is something other than a choice between
criminalized and maternalized sex or a choice between terrorized and maternalized sex.”).
37 Bernstein, supra note [x], at 112. For instance, COYOTE claims that open markets for sex subvert
gender roles, in which some women are socially slotted and raised to be “good girls.” On the other hand,
“there is nothing transgressive about one who has been socially born and raised to be a ‘bad girl’ and
remaining one.” Id. at 112.
38 This argument has a long pedigree, dating back to nineteenth-century gender activists. See, e.g., [add
cites]; PATEMAN, supra note [x], at 123 (“The husband’s conjugal right is the clearest example of the way
in which the modern origin of political right as sex-right is translated through the marriage contract into the
right of every member of the fraternity in daily life.”); Prabha Kotiswaran, Wives and Whores: Prospects
for a Feminist Theory of Redistribution, in SEXUALITY AND THE LAW: FEMINIST ENGAGEMENTS (Carl F.
Stychin & Vanessa E. Munro eds.,).
39 Gayle Rubin, The Traffic in Women [add full citation]. More subtly, Martha Nussbaum observes that
“most cultures contain a continuum of relations between women and men (or between same-sex pairs) that
have a commercial aspect—ranging from the admitted case of prostitution to cases of marriage for money,
going on an expensive date where it is evident that sexual favors are expected at the other end, and so
forth.” Nussbaum, supra note [x], at 700. But see Nancy Fraser, Beyond the Master/Subject Model:
Reflections on Carole Pateman’s Sexual Contract, 37 SOCIAL TEXT 173, 176 (1991) (“Whereas the
marriage contract involves the withdrawal of major aspects of social reproduction from the cash nexus,
wage labor, prostitution, and ‘surrogacy’ are precisely market transactions.”).
9

all heterosexual women “work” for sex. 40 Still others root their support for sex markets
in liberalism, making agency arguments that women should have the ability to determine
their own trade-offs after discerning and evaluating their options. 41 In fact, one
commentator finds that, ironically, prostitution may be the first time some women feel
empowered to refuse sex. 4243 Those who embrace what they conceive of as erotic
autonomy criticize criminal law for labeling sex workers as sex offenders, despite the
consent of both parties. 44 In this sense they invoke Lawrence-like analyses over the
scope of sexual autonomy and what the state should criminalize. 45 Most recently, some
advocates for transactional sex have made arguments from the “demand” side, pointing
out that sex markets may be the only chance that the disabled and other sexually
marginalized groups have for non-auto erotic sex. 46 Finally, some make antiexceptionalism
arguments, that professional sex is just like any other form of labor and
should be respected and regarded as such.
Of course, these arguments are not mutually exclusive, and there is significant
overlap. In particular, erotic autonomy overlaps with labor discourse. The remainder of
this paper will explore the discourse of professional, commodified sex as legitimate labor.
B. The Labor Claim
40
Indeed, this argument is not limited to heterosexual women, or to women. As argued above, many
people “trade” sex in relationships, short-term and long-term. See supra notes [x] and accompanying text
(rejecting terms sex trade and sex work as failing to distinguish adequately professional sex work between
the negotiations many make for sex). [Note heteronormativity of this claim].
41
[add Nussbaum here, too; from Anca: Laura Kipnis's "Against Love" might be a nice additional touch to
the idea that all women "work at it [sex]" because her argument is that normative, marital love and sex is a
lot of everyday work and an ongoing commerce of affect] One commentator contends that feminist
opposition to sex work flies in the face of feminism’s insistence on women’s agency in other matters
regarding their bodies:
This hypocrisy is evident in the abortion debate. Many feminists champion a woman’s right to
choose—as long it is abortion that is being discussed. But let someone suggest that women have a
right to sell their bodies and suddenly these women no longer advocate choice. Prostitution must
be the same issue for feminists as abortion. It is the right to choice. Both involve the right of a
woman to control what happens to her body. If one claims self-ownership as the basis of a
woman's right to choose an abortion, then the logical implication of such ownership cannot be
limited to abortion. If a woman owns her body, she should be able to choose to do with it what she
will.
Norma Jean Almodovar, For Their Own Good: The Results of the Prostitution Laws as Enforced by Cops,
Politicians and Judges, 10 HASTINGS WOMEN’S L.J. 119, 122 (1999).
42
43
Prabha Kotiswaran notes: “the feminist critique that this work position is undertheorized, with the result
that it falls back on the liberal discourse around choice, consent, work, and the market.” Kotiswaran, supra
note [x], at 581 (citations omitted).
44
[ In this configuration, consent becomes a crucial component of analysis. [Law &
Nussbaum notes from intro] See also Almodovar, supra note [x], at 123 (“For mutually agreed upon
financial transactions it should not matter to anyone outside the relationship how many times sexual
activity occurs, or with how many sexual partners.”); Law, supra note [x], at 526 (“The exchange of sexual
services for money is the only form of consensual adult sexual activity that is systematically subject to
criminal sanctions in the United States at the end of the twentieth century.”).
45
[add citations and analysis]
46
See infra notes [x] and accompanying text.
10

Grounded in labor discourse, the term sex “worker” originated in the 1970s to
legitimate professional sex in the face of the then-dominant feminist thought that objected
to prostitution as exploitation and sought to abolish it and “rescue” the women who did
it. 47 Unlike earlier reform efforts, based on tolerating prostitution either to preserve
men’s sexual privilege or to end women’s victimization at the hands of law enforcement,
the new discourse of sex as labor emerged from the prostitutes’ rights social movement. 48
Sex work emerged in this context as “a term that suggests we view prostitution not as an
identity—a social or psychological characteristic. . ., often indicated by ‘whore’—but as
an income-generating activity or form of labor.” 49 Elizabeth Bernstein concurs: “Unlike
the word ‘prostitute,’ with its connotations of shame, unworthiness or wrongdoing, the
terms ‘sex-worker’ tries to suggest an alternative framing that is a ‘normalization of
prostitutes as ‘service workers’ and ‘care-giving professionals.’” 50 More recently, sex as
labor advocates also derive their claim from human rights discourse, which guarantees
choice of occupation as a right. 51
Others embrace the term sex worker to invoke other associations. For instance,
influential theorist Kamala Kempadoo endorses “sex worker,” but analytically substitutes
“gender” for “sex.” In her view, the denomination sex worker “insists that working
women’s common interests can be articulated within the context of broader (feminist)
47
The term is attributed to Carol Leigh, an activist for prostitutes and member of COYOTE. Oliver J.
McKinstry, We’d Better Treat Them Right: A Proposal for Occupational Cooperative Bargaining
Associations of Sex Workers, 9 PA. J. LAB. & EMP. L. 679 n.18 (2007). Many credit the 1975 strike of
prostitutes in France as the start of a movement to conceive of sex bargainers’ rights in the language of
labor. Sylvia Law, however, documents an earlier strike in Hawaiian during World War II, in which
prostitutes used their alliances with the military to resist and renegotiate legal restrictions and police
surveillance. Law, supra note [x], at [pincite]. [check: were they women of color?] For a comparison of
relative weakness of prostitute rights movement with more successful contemporaneous gay and abortion
rights movements, see generally Ronald Weitzer, Prostitutes Rights in the United States: The Failure of a
Movement, 32 SOCIOLOGICAL Q. [pincite] (1991).
See, e.g., [McKinstry, id. (historicizing movement); [add others]. Siobhan Brooks contends the sex labor
movement picked up again in 1990s because of the influx of women into the industry. BROOKS, supra note
[x], at 2. See also [find this cite] (critiquing initial exclusion of global south from discussions); Larson,
supra note [x] (describing how movement transmuted over time); Mgbako & Smith, supra note [x].
48
[add oppositional consciousness stuff] Earlier defenses of prostitution tended to be grounded in either
impulses to “rescue” prostitutes from “fallen lives” or to tolerate prostitution as a socially necessary outlet
for men’s sexual drives. [add cites] As activist Carol Leigh says, “The current movement includes a
recognition of the rights of prostitutes to autonomy and self-regulation.” Carol Leigh, A First Hand Look
at the San Francisco Task Force Report on Prostitution, 10 HASTINGS WOMEN’S L.J. 59 (1999).
49
GLOBAL SEX WORKERS: RIGHTS, RESISTANCE AND REDEFINITION 3 (Kamala Kempadoo & Jo Doezema
eds., 1993).
50
Bernstein, supra note [x], at 111 [Check this quote: McKinistry fn 18???].
51
Interestingly, both sides use human rights frameworks. [add cites to main human rights instruments on
this] While sex work advocates urge a right to work and privacy guarantees, abolitionists invoke a
different set of norms against sexual discrimination, state-sanctioned patriarchy, and rights to be free from
inter-personal violence. The dominant human rights agencies have taken a strong stand against forced
prostitution and trafficking, but have largely remained neutral on the question of prostitution itself. See,
e.g., Nussbaum, supra note [x], at 710 (noting human rights organizations have focused attention on forced
sexual labor and also on alleviating material conditions that give rise to prostitution); A Modern Form of
Slavery: The Human Rights Watch Global Report on Wome’s Human Rights 196-273 (1995; [add other
cites to International Covenant on Civil and Political Rights; Convention on the Elimination of All Forms
of Discrimination against Women; Convention for the Suppression of Traffic in Persons and the
Exploitation of the Prostitution of Others].
11

struggles against the devaluation of women’s work and gender exploitation within
capitalism.” 52 Relatedly, others urge the term “sex worker” to call attention to the
multiplicity of people—men, women, heterosexual, homosexual, transgender, etc.—who
sell sex. 53 Thus some adopt the term sex worker to invoke identitarian or coalitional
discourses and critiques. Overwhelmingly, though, those who urge the sex worker rubric
do so to embrace a discourse of transactional sex as legitimate labor.
Conceptualizing commodified sex as work is urged as one way to combat the very
real ills experienced by many who transact sex—an alternative to both abolition and
ongoing criminalization. This argument emphasizes that sex work should be regarded and
regulated as no different from any other labor. For instance, the World Charter for
Prostitutes’ Rights calls for the “decriminaliz[ation of] all aspects of adult prostitution”
and the regulation of “third parties according to standard business codes.” 54 Indeed, the
legalization movement is a self-proclaimed labor movement. The website for the Live
Nude Girls Unite! documentary takes care to proclaim in its first sentence: “This site is
about a labor film.” 55 Similarly, Monica Moukalif concludes that “the issues that affect
sex work are essentially labor issues common to all marginalized workers.” 56 Proponents
invoke other comparisons to conventional labor as well. “Both the factory worker and
the prostitute survive hard physical labor by separating who they are from what they do.
Just as the person on the assembly line in a factory separates his personality from his
hands and feet and the part of the brain that makes them work, so the willing prostitute
separates her personality from her sexual equipment.” 57 Hence, Moukalif and others give
clear statements of the complete claim of commodified sex as labor.
Yet, within the professional sex as labor camp there is a deep split that has gone
largely unnoticed. Universally, the sex as labor camp urges decriminalization of
professional sex, contending that [check this quote] “criminalization results in
stigmatization, criminalization, and punishment.” 58 They observe that the long-standing
52
KEMPADOO, supra note [x], at 8. See also Tinsman, supra note [x], at [add pincite] (contending sex is
primary way women are exploited in all forms of work).
53
McKinstry, supra note [x], at 683; [check Cabezas at 81].
54
World Charter for Prostitutes’ Rights; International Committee for Prostitutes’ Rights February 1985,
Amsterdam, reprinted in 37 Social Text 183 [hereinafter World Charter fro Prostitutes’ Rights]. In fact,
Sylvia Law concludes, “With startling consistency, the prostitutes' rights movement calls for the
decriminalization of all aspects of prostitution.” Law, supra note [x], at 553 (footnote omitted).
55
[cite website].
56
Monica R. Moukalif, No Evil: Applying a Labor Lens to Prostitute Organizing, 20 HASTINGS WOMEN’S
L.J. 253, 258 (2009).
57
Michael Conant, Federalism, the Mann Act, and the Imperative to Decriminalize Prostitution, 5
CORNELL J.L. & PUB. POL’Y 99, 100 (noting differences between sex bargainers and other workers,
including substance abuse and psychological effects) [keep that parenthetical?]; see also Nussbaum, supra
note [x] (rehearsing arguments of how prostitution is similar to and different from other forms of labor).
58
[add check citation]. [decide whether here or in regulation description: Prabha Kotiswaran points out
how criminal, prohibitory laws have become fetishized by both sides of the decriminalization debate.
“While the normative status of sex work remains deeply contested, abolitionists and sex work advocates
alike display an unwavering faith in the power of criminal law; for abolitionists, strictly enforced criminal
laws can eliminate sex markets, whereas for sex work advocates, decriminalization can empower sex
workers.” Kotiswaran, supra note [x], at 579. In sum, contra Foucault’s injunctions against juridical
understandings of modern regulation, “Both camps thus view the criminal law as having a unidirectional
repressive effect on the sex industry.” Kotiswaran, supra note [x], at 613. See also Nussbaum, supra note
12

criminalization of markets for sex has invited organized crime, led to police corruption,
and heightened the vulnerability and isolation of those who bargain for sex. 59 Not only is
prostitutes’ labor criminalized, but often this serves as an obstacle to reporting sexual
assaults as well as to enforcing the contracts for transactional sex they consensually enter.
But, while unanimously endorsing lifting criminal bans on professional sex, sex as labor
advocates disagree whether there is a further role for the state in regulating this market.
Frequently, this is cast as a disagreement between those who limit their arguments to
calls for decriminalization and those who urge full legalization and regulation. 60
Overlooked, though, is the extent to which these positions actually embed contradictory
views of sexual labor itself.
1. Decriminalization
Emblematic of the decriminalization without regulation position, two
commentators insist, “Sex workers’ ability to control their lives is most undermined by
state regulations that criminalize, penalize, stigmatize, and therefore isolate sex workers,
rendering them unable to counter harassment and abuse.” 61 In this view, criminalization
then leads to further vulnerability, and those who might like to pursue other options find
they are largely stuck in sex markets. 62 In its strongest form, decriminalization
arguments adopt a sort of libertarian stance, embracing decriminalization but opposing
full legalization, which would entail regulation and protectionism. 63 For instance, the
World Charter for Prostitutes’ Rights insists that “It is essential that prostitutes can
provide their services that are absolutely determined by themselves and no one else.” 64
Norma Almodovar puts the case even more bluntly: “Decriminalization would . . . repeal
all existing criminal codes applying to non-coercive adult commercial sex activity. It
would require no new legislation to deal with harmful effects of prostitution, as there are
already plenty of laws which cover problems outside the realm of personal choice.” 65
“From an activist perspective the term legalization as applied to prostitution usually
refers to a system of criminal regulation and government control of prostitutes. In this
system, certain individuals or specific prostitution practices (work venues, etc.) are
explicitly recognized and ‘legitimized’ by law, and practices or individuals outside those
[x], at 708 (“Criminalization and regulation are not straightforwardly opposed; they can be closely related
strategies.”).
59
[is this a cite from Macklin?] [add Barry on Contagious Diseases Act and how it split prostitutes from
their communities by means of ascribing a separate identity]
60
[Decriminalization/legalization split]
61
Mgbako & Smith, supra note [x], at 1193. Elsewhere Mgbako and Smith contend that “Illegality renders
sex workers dependent upon pimps, brothel owners, clients, and police officers.” Id. at 1206.
62
[discuss exit]
63
See, e.g., Fischer, supra note [x], at 526 (equating regulations and restrictions with “condemnation” of
prostitutes).
64
World Charter 183
65
Almodovar, supra note [x], at 132 (emphasis added). Anne McClintock observes: “A recent call has
gone up from some quarters for the legalization rather than the decriminalization of sex work. But most
prostitutes regard legalization as legalized abuse. Despite its benign ring, legalization places prostitution
under criminal instead of commercial law, where it is tightly curtailed by the state and administered by the
police.” McClintock, supra note [x], at 4 (emphasis in original).
13

oundaries are illegal.” 66 The International Prostitute Rights organization is more
specific: “There should be no law which implies systematic zoning of prostitution.
Prostitutes should have the freedom to choose their place of work and residence.” 67
Feminist theorist Anne McClintock concurs: “A central tenet of the prostitution
movement is the demand that sex workers be given the right to exchange sexual services
on their terms and on their conditions, not on the terms of the state, the police, pimps,
male managers, or clients.” 68 Of course, such insistence on complete workplace
autonomy is unrecognizable to most working adults. But, for decriminalization
advocates, this strong libertarian position is justified because of the nature of the “work.”
Implicit in these strong-form claims for a completely deregulated sex market is
the privacy ideology liberalism often associates with sex. Although much-criticized, the
legal protection for women’s sexual autonomy that emerged in the 1960s and 1970s was
grounded in constitutional privacy doctrine. 69 Cultural and social norms of sex as part of
private and not public life supported this, as well. 70 Liberalism similarly promotes
autonomy, freedom, and choice within this sphere, construing these as the definitive
principles that guarantee sexual and reproductive rights. 71 The final piece of the
liberalism troika, consent, plays a similarly fundamental role in constructing sexual rights
and their boundaries. 72 From this ideology some advocates derive a strong, intriguingly
66 Leigh, supra note [x], at 60.
67 http://www.bayswan.org/ICPRChart.html. They also oppose public health regulations of sex work.
“Since health checks have historically been used to control and stigmatize prostitutes, and since adult
prostitutes are generally even more aware of sexual health than others, mandatory checks for prostitutes are
unacceptable unless they are mandatory for all sexually active people.” World Charter 184.
68 Anne McClintock, 37 SOC. TEXT (1993)], 2 (emphasis in original). McClintock also claims, “Removing
sex workers fundamental right to choose—whether to work, how to work, when to work and where to work
is a flagrant infringement of basic working rights, their integrity, their humanity, not a universal and
inherent feature of the sexual exchange.” Id. at 6.
69
70
[Add cites including Olsen and MacKinnon critiques of this.] [add a sentence on how markets usually
public while sex private]
71
[add more citations on sexual autonomy and con law] See, e.g., Nussbaum, supra note [x], at 706
(arguing “the issue of choice is the really important one”). [move: Not surprisingly, many have urged that
the dominance of choice arguments in the feminist defense of abortion and the rejection of choice in
prostitution is nothing short of hypocrisy. See, e.g., Almodovar, supra note [x], at 122 (footnote omitted);
Cynthia Chandler, Feminists as Collaborators and Prostitutes as Autobiographers: De-Constructing an
Inclusive Yet Political Feminist Jurisprudence, 10 HASTINGS WOMEN’S L.J. 135, 136 (1999) (urging
feminist theory should shift focus from “either women’s liberty and choices or the dominating constraints
on women’s lives, to looking at the intersection of both agency and domination on their lives”) (“Many
feminists champion a woman’s right to choose—as long as it is abortion that is being discussed.”).]
72
[integrate with consent footnote above???] [another example of a consent based norm is why workers
should be able to practice whites only, men only sexual work] [David Law point: is erotic capital more
generally monetizable??? As in family court decisions where they monetize a degree, even if the person is
not using it: here, you could be earning x amount based on your erotic capital!] Sylvia Law uses consent to
impose some interesting limits on the professional sex as labor position. While interviewing welfare rights
organizers in Nevada, Law learned that some of them feared that if sex work were fully legalized, the
government would require it as a condition of receiving need-based entitlement programs. Law grounded
an exemption of sex work from universal requirements to labor in liberalism:
A society could address this paradigm conflict by saying that the norm of authentic consent,
generally applicable to sexual relations, should control and that people should not be forced to
engage in commercial sex, as a condition of subsistence. Even if commercial sex is legal, many
women regard it as inconsistent with their deepest sense of self and inconsistent with moral and
14

libertarian position: “A woman’s body belongs to herself and not to the government.
The individual’s rights to own, use and enjoy her body in any manner that she deems
appropriate, as long as she does not violate the rights of others has long been protected in
this country.” 73 Similarly, the International Prostitute Rights charter “affirms the right of
all women to determine their own sexual behavior, including commercial exchange,
without stigmatization or punishment.” 74 Still others register their concerns in an
explicitly feminist register. In language that echoes that of the strongest abolitionists,
scholar Anne McClintock insists, “Legalizing female prostitution serves only to put
women more firmly under male control.” 75 This libertarian view of sex work thus
embraces a hybrid position, often urging commodified sex as labor while simultaneously
claiming the legal and social privacy that sex often brings. In sum, professional sex is
just like any other labor in that it should not be subject to criminal bans and should
instead be a matter of individual choice, but, because it is sex, it should be exempt from
any government regulation or supervision—including zoning, licensing, or public health
protocols. It operates, in effect, as sex, or erotic, exceptionalism. 76
2. Legalization
Other sex work advocates, though, urge not only decriminalized, but fully
legalized and regulated markets for sex. This camp views sex workers as deeply
vulnerable to exploitation and risk and envisions an active role for the state in regulating
sex markets and workplaces. “Like traditional prostitutes, women working in the legal
sex industry have been treated as though they are not entitled to the same legal
protections as other ‘socially accepted’ workers.” 77 Another commentator concurs,
religious principles. We should recognize that choice with respect to sexual relationships is so
integral to individual identity and integrity that sex should not be compelled, even if it could
provide subsistence to a person who would otherwise depend on the state.
Law, supra note [x], at 590. Crucially, Law notes that denying the requirement may reinvigorate sex
exceptionalism/Observing this exceptionalist move, Law then asks the crucial question: “But why should
personal choice be given such high value in relation to sex, if it is denied in relation to many other issues of
profound and legitimate importance to individuals?” Law, supra note [x], at 590 (emphasis added). See
also Baldwin, supra note [x], at [pincite and add parenthetical quote).
73
Almodovar, supra note [x], at 132. Discussing the California Constitution, Almodovar notes it
“explicitly grants a right to privacy, and although this right is not absolute, it should be interpreted to say
that as long as no coercion is involved, any private consenting adult activity is none of the government’s
business. But this is apparently not the case when private activity involves money!” Almodovar , supra
note [x], at 129. See also
74
[get the cite from Law]
75
McClintock, supra note [x], at 4.
76
[elaborate my own use of sexuality exceptionalism and how this is different] Several philosophers,
including Martha Nussbaum, have rehearsed the complexities of the exceptionalist question, debating
whether sex makes work different. See, e.g., Nussbaum, supra note [x], at 694 (“If a producer of opera
should take the position that singers should not be paid, on the grounds that receiving money for the use of
their talents involves an illegitimate form of commodification and even market alienation of those talents,
we would think that this producer was a slick exploiter, out to make a profit from the ill treatment of
vulnerable and impressionable artists.”) (footnote omitted); [add others on how is it different, etc.]
77
Carrie Benson Fischer, Employee Rights in Sex Work: The Struggle for Dancers’ Rights as Employees,
14 LAW & INEQ. 521, 551 (1996). See also Bindman & Doezema, (“[T]heir vulnerability to human and
labour rights violations is greater than that of others because of the stigma and criminal charges widely
15

“organizing around decriminalization is part of organizing for better occupational health
and safety.” 78 Less tied to sex exceptionalism than libertarians, these advocates view
professional sex work as not meaningfully different from other forms of marginalized
labor. For instance, Monica Moukalif “constructs a margins-oriented labor lens and then
applies it to sex labor discourse,” in the process showing how “[p]rostitutes are
organizing and advocating in ways that could be beneficial to all marginalized
workers.” 79 This camp thus urges assimilating sex work into our existing labor and
employment law regime.
Influential legal feminists Sylvia Law, Jane Larson, and Martha Nussbaum all
embrace versions of this vulnerable populations/assimilationist view. 80 For instance, Jane
Larson views prostitution as a “laboratory” to determine “what makes certain voluntary
labor so dangerous or so exploitative as to violate the worker’s human rights?” 81 Sylvia
Law makes a strong protectionist case when she argues that not only should criminal
prohibitions be repealed, but “legal remedies and programs to protect commercial sex
workers from violence, rape, disease, exploitation, coercion and abuse should be
enhanced.” 82 Finally, Martha Nussbaum combines an assimilationist approach with the
straightforwardly liberal feminist emphasis on choice to make a case for legalized sex
work as a constrained or bounded autonomy claim. 83 In sum, contrary to erotic
exceptionalists, this camp contends sex work is truly no different than other forms of
marginalized labor. 84 Rebelling against the privacy rubric libertarians/exceptionalists
invoke to cloak labor that is sexual, this camp advocates full legalization and assimilation
of sex work into our current regulatory regime.
Thus, while both camps view the labor framework as a way to access both
legitimacy and power for workers in the desire/sex industry there is a split, a
contradiction even, within the movement. For some, “worker” empowerment stems from
full legalization. Seeking to intervene in the oppression and exploitation of a classically
vulnerable population, they envision the full assimilation of sex workers into the labor
and employment regulatory regime. In contrast, erotic exceptionalists manifest a deeply
libertarian view, embracing the labor lens from a classical freedom of contract
perspective, in which the state has little role to play beyond enforcement. While modern
labor contracts are intensely regulated, to libertarians, the sexual contract remains
exceptional. The libertarian camp finds in constitutional and social sexual privacy norms
and liberalism’s emphasis on autonomy and consent support for the classic freedom of
contract position—that the state should not intervene in otherwise voluntary
agreements./This classical libertarianism, unrecognizable to modern democratic
marketplaces, finds support in the sexual nature of contract, which remains exceptional.
attached to sex work.”); Adrienne Cuoto, [add cite] 48 (If not viewed as criminals, sex workers are at the
very least considered to maintain “deviant lifestyles, roles and identities.”).
78 Moukalif, supra note [x], at 271.
79 Moukalif, supra note [x], at 253.
80
81 Larson, supra note [x], at 676.
82 Law, supra note [x], at 524.
83 [add a quote in here] Philosopher Martha Nussbaum combines the vulnerability lens with an autonomy
analysis. Martha C. Nussbaum, “Whether from Reason or Prejudice”: Taking Money for Bodily Services,
27 J. Legal Stud. 693, 693-94 (1998).
84 Mgbako & Smith, supra note [x]; [add others].
16

In sum, exceptionalists take a libertarian perspective, while assimilationists embrace a
contradictory, deeply regulatory stance./In sum, erotic libertarians, insisting on privacy,
claim it’s just like any other consensual sexual act. Labor assimilationists, though, say
it’s just like any other work. Just like sex or just like work—that is the underlying
question.
This latent dichotomy between assimilationist and exceptionalist discourses of
professional sex undergirds the remainder of this paper. First, Section II takes seriously
the assimilationist claim that “sex is like any other work.” As facially persuasive as this
argument is to many progressives, it rests on the idea of a monolithic workplace subject
to monolithic regulation. In contrast, what this next Section demonstrates is that modern
workplaces, and work, vary drastically, and are subject to diverse regulatory regimes.
Law regulates work differentially, and it is unclear which model professional sex
advocates seek to invoke. As much as advocates urge us to treat professional sex as any
other labor, sex markets have distinctive characteristics that it would be irresponsible to
ignore in crafting regulatory policy. Nor is sex work itself monolithic; rather it exhibits
vastly different working conditions and risks. Section III will answer assimilationists’
concerns with a set of proposals that will hopefully address the specificity of sex work,
while also taking up the erotic exceptionalists’ claims that because the labor is sexual, it
should be outside of and beyond regulation.
II. PARADIGMS OF LABOR & ITS REGULATION
[Readers: I am well aware from the employment/labor law posse at Wash U that this
section does not get the regulatory structure for employment and labor right. I ask that
you read this section with an eye towards its conceptual template, which sets up the next
section.]
Legal scholar Audrey Macklin characterizes immigrant labor as the “four D’s”:
difficult, dirty, dangerous, and degrading. [Add Macklin quote.] The latter three she
contends also characterize much sex for hire. Sex workers often work in unsanitary
workplaces: dancers complain of dirty poles, stage floors, and dressing rooms; prostitutes
often work in unclean hotels, brothels, or worse, on the street, in alleys, or in cars. Even
more so than “dirty” however, charges of danger and degradation pervade arguments to
legalize and regulate sex bargaining as work. 85 Sex workers have high rates of assault,
from customers, both employers and other employees, and even from their intimate
partners. In addition, as noted in Section II, many sex workers complain of degrading
work conditions, ranging from sexual harassment (again, from customers, employers, and
other employees) to racial discrimination.
This Section explores these concerns, which are often invoked within the “just
work” discourse. As described in Section I, above, there are distinct discourses of
85 Some contend the work is also “difficult.” Prostitutes who work in brothels sometimes have to work
twelve to fourteen hour shifts, and dancers spend eight hours or more in high heels, which can cause
injuries to their feet. Some commentators have also noted the exhausting nature of the emotional labor
much sex work requires. See infra notes [x] and accompanying text. Still, this concern does not seem to
take the priority that safety, discrimination, and, to a lesser extent, “sanitation” does.
17

legality and labor in different sectors of the desire industry. One invocation of sex for
hire as “just work” is, of course, to urge the decriminalization of sex markets, which at
the most basic level would give sex workers the ability to enforce their contracts.
Currently, not only customers, but also landlords, hotels, and other third parties can evade
their obligations with sex workers because these contracts are illegal. 86 In addition,
because their activities are criminalized, sex traders are under constant surveillance by
the police, who not only arrest them, but also sexually and economically exploit them. 87
(In this sense, many have contended that the police operate much like pimps, but with the
shield and force of law. 88 ) Thus, the ability to work legally and enforce the basic terms
of their contracts would ameliorate some of the fundamental vulnerability and
exploitation sex bargainers experience. Made in this register, freedom of contract, the
claim that sex for hire is “just work” seeks its legitimization, but in the language of the
sexual libertarianism described in Section I. These invocations of sex as labor actually
want to exceptionalize the sexual part, keeping it a “private” and unregulated activity,
rather than a more conventional labor relation.
While, as Section I noted, some invocations of the “just work” discourse are for
libertarian aims, many seek full legalization and regulation of sex markets./But those who
envision not just decriminalization but full legalization of sex markets anticipate a starkly
different, even oppositional, end state. Their invocation of sex as “just like any other
work” is really a recognition claim, that sex bargainers should be considered legitimate
laborers with the protections of the “applicable legal standards relating to labor rights.” 89
This Section explores this set of claims within the context of the relevant state and federal
laws. It breaks Macklin’s “four D’s” down into their recognizable regulatory forms—dirt
and danger, typically addressed by workplace health and safety regulations and workers’
86 Sylvia Law observes:
For some women, the laws against pimping represent a serious burden on personal family
relations. When women who work in commercial sex have voice in the development of public
policy they reject laws making it a crime to live “off the earnings of prostitution.” Many women
work precisely to support their children, parents or friends. Other women who sell sex for money
prefer to have a third person mediate the transaction. That mediation can be benevolently
protective or exploitative. Laws against pimping do not distinguish among the worker;s child,
mom, protective madam or an exploitative sex slaver. Anyone who derives financial benefit from
a commercial sex worker is a criminal.
Law, supra note [x], at 571 (footnote omitted). See also Kotiswaran, supra note [x]; [cite others].
87 [Find the case where rape was charged when the police officers identify themselves as law enforcement
after sexual services have been rendered. They thus consume the service, refuse to pay, and arrest the
bargainer. Is this MacKinnon?] Chancer, supra note[x], at 156 (“Not infrequently, the rapist was a copy:
as agents of social control, police know their actions in relationship to prostitutes are unlikely ever to be
taken seriously, less likely still to be constructed as examples of ‘police brutality’ and punished.”) (footnote
omitted); Leigh, supra note [x], at 69 (“Many women complain of vice officers fondling them or exposing
themselves before arresting them.”); McClintock, supra note [x], at 4 (“Police . . . are on record almost
everywhere for raping prostitutes in vans and precincts, demanding ‘freebies,’ humiliating, harassing, and
hounding the most vulnerable women on the streets.”). Some call for explicit non-enforcement of state
laws at the local level or for implicit deprioritizing. See, e.g., Law, supra note [x], at [pincite] (discussing
San Francisco and New Jersey Task Forces as case studies of local reform); Leigh, supra note [x]
(discussing San Francisco Task Force recommendations to suspend enforcement of state laws against
prostitution and redirecting resources to services for sex workers and enforcing nuisance laws).
88 [add citations]
89 [is this a Macklin quote?].
18

compensation statutes, as well as some collateral tort law on violence, and degradation,
much of which is the province of anti-discrimination law, mainly Title VII, but also the
Americans with Disabilities Act and the Age Discrimination in Employment Act. The
remainder of this Section gives an overview of how health and safety, workers’
compensation, tort, and discrimination law operate. It also briefly summarizes the
guidelines for determining who is an employee, which determines other, crucial benefits
and rights sex bargainers seek. In the end, although the “just work” claim implicitly
suggests a monolithic workplace and set of labor regulations, what the remainder of this
Section reveals is that workplaces are themselves quite diverse and subject to varying
regulation. In sum, the question isn’t whether sex can be work, but, rather, what kind of
work will it be considered?
A.
The sex as labor camp anticipates a host of benefits from legalized status and
regulation, primarily ameliorating the substantive work conditions for sex bargainers. As
an initial matter, at the most basic level, many seek legal recognition of sex workers as
employees, which would entitle them to basic employment benefits, including
unemployment, health insurance, retirement, social security benefits, workers’
compensation, and minimum wage and overtime. 90 Neither prostitutes, whose work is
illegal, nor dancers, whose employers often classify them as independent contractors,
qualify for these benefits under federal and state laws. In addition, the National Labor
Relations Act gives workers classified as employees the right to unionize and collectively
bargain for improved working conditions. Rather than relying solely on the state to
enforce minimal, universal benefits, collective bargaining allows workers to craft terms
and conditions of employment that are tailored to their needs. 91 As Sylvia Law notes,
“One of the most effective ways for commercial sex workers to promote decent working
conditions and protect themselves from violence, abuse, and health and safety hazards, is
to work in a collective context.” 92 Indeed, sex bargainers have sought to unionize in a
variety of contexts, although with little success. 93 Apart from the challenges of
90
Another conceivable benefit claim might be for protection under the Family and Medical Leave Act,
which requires employers to provide workers’ unpaid leave for medical reasons or to care for newborn
children or sick family members. When employees return they must be reinstated in same or equal position
with no loss of accumulated seniority or benefits. Margot Rutman examines the applicability of FMLA to
exotic dancers. She concludes that, even though, “[c]onceivably, the FMLA does apply to exotic dancers,”
because dancers may need more recovery time than other workers because of appearance and physical
requirements of the job, “the overall impact on exotic dancers is not as beneficial as it is in other
environments.” Rutman, supra note [x], at 535-36.
91
Unions have often played a critical role in raising and negotiating over issues of health and safety.
Because they implicate working conditions, safety issues are a mandatory subject of bargaining in
a unionized workplace, and employers are therefore obligated to provide safety information upon
the union’s request. . . . In addition, unions frequently negotiate for improved safety measures, or
alternatively, higher wages to compensate for the risks, through the collective bargaining process.
WORK LAW, supra note [x], at 946.
92
Law, supra note [x], at 598. See also Chun, supra note [x] (advocating unionization as best route to
empowerment for exotic dancers).
93
As detailed in Live Nude Girls Unite! documentary, the Lusty Lady was the first exotic dance club to
successfully unionize. [detail this and other efforts].
19

organizing an itinerant and powerless group of workers, pro-union sex workers even
encounter resistance from unions themselves, which, though desperate for new members,
still often reject sex traders as illegitimate workers. 94 Still, many continue to urge
unionization as sex workers’ best chance to achieve decent working conditions. 95 Thus,
even beyond Macklin’s four-part schema, labor is seen as the first step toward the basic
rights that inure to all workers recognized as employees.
Even more so than basic employee benefits, as Monica Moukalif observes,
“[o]ccupational health and safety is the major organizing point for prostitutes and other
sex labor activists.” 96 The dominant form of “danger” that most risks sex workers’ safety
is violence./One dominant axis of risk that endangers sex workers’ safety is violence.
Sex workers have significantly higher rates of assault, rape, and even murder than other
workers. [add quote and citations 97 ] Dancers are subject to sexual assault and other
battery, on the stage, in private lounges and rooms, and even leaving work, in parking
lots or on the street. 98 Even in public parts of clubs, “women are often subject to verbal
harassment and unwanted sexual touching,” which can be a precursor to violence and
make them feel unsafe in their workplaces. 99 Masseuses similarly may be subject to
violence from customers. Finally, the physical assaults, robberies, rapes, and even
murders of prostitutes, whether street-walkers, outcall workers, or brothel or private
bargainers are well-documented. [fill in statistics] Importantly, physical and sexual
assault comes from not only customers and third parties but also club owners, pimps, and
other employees, e.g., bouncers, bartenders, and servers. 100 The statistics bear out that
94 Chun, supra note [x], at [pincite] ([add quote re union bias against sex workers]); Law, supra note [x], at
599 (“[w]here women have sought to organize a union, they have been rebuffed by established labor
organizations.”); Rutman, supra note [x], at 553, 554 (“Exotic dancers, because they are a stigmatized
group of women, often have problems finding outside labor support or unions that will allow them to
join.”).
These authors also describe challenges to organizing sex workers. [add citations regarding itinerant, antiunion,
etc] “As a result of their lack of power to force better working conditions through
the court system, exotic dancers have begun attempts at unionizing so that they can
collectively bargain with their employers.” Rutman, supra note [x], at 553 (footnote
omitted) then describes problems with unionization, pessimistic 553-54, including
difficulty in organizing, retaliation, preference to remain independent contractors fn 352
(voted down union), rejection by unions
95 Others are more skeptical, however. Margot Rutman observes that in the first successful effort to
unionize a dance club, the Lusty Lady, the dancers got 1 sick day and 1 holiday. “The union contract is
impressive because it exists despite the challenges that the exotic dancers faced, but generally, the contract
fails to offer work benefits comparable to those of other more established unions.” Rutman, supra note [x],
at 555.
96 Moukalif, supra note [x], at 270.
97 Maticka-Tyndale describes assaults of dancers in private rooms of clubs, but also notes that “even in the
public areas of clubs, women are often subject to verbal harassment and unwanted sexual touching.”
Maticka-Tyndale, supra note [x], at 95.
98 [add cite] BROOKS, supra note [x], at [pincite] (describing dancers’ concerns); Maticka-Tyndale, supra
note [x], at 95 ([add parenthetical]).
99 Maticka-Tyndale, supra note [x]. See also Exotic Dancing Health and Safety (“While assault is not
tolerated in other workplaces, dancers report that it is not uncommon for bouncers, managers and police to
treat assault in and around a strip-club as an occupational hazard that dancers should expect and “deal with”
without taking action against the perpetrator.”).
100 [add quote and cite]
20

stakeholders in the sex trade, customers, co-workers, and employers, feel entitled to
physically abuse the workers, making sex work among the most dangerous forms of
labor. 101 Many contend that employers do not do enough to keep sex worksites safe and
to protect the workers.
A second axis of risk is “dirt,” or the unsanitary state of many sex workplaces,
which exposes workers to infection and other health risks. Dancers in particular
complain that employers do not properly sanitize the stage poles, floors, club furnishings,
and props with which their bare genital areas come in contact. Moreover, their job
requires intimate contact with customers and their clothing, over which employers have
less control. 102 Constant exposure to body fluids and unsanitized surfaces puts them at
risk for infections and diseases. 103
What Macklin terms “degradation,” too, is a much-contested feature of sexual
labor. Degradation takes many forms. Those with whom sex bargainers interact at
work—customers, employers, and other employees—all can treat them with contempt,
frequently using misogynist slurs and epithets. [add quote from Maticka-Tyndale]
Ironically, then, the stakeholders within this market sector reinforce the image of it as
filled with immoral, sexually promiscuous women who are not entitled to the basic
human respect or dignity accorded other workers. Assimilationists contend that this
behavior, much of it intensely gendered, comprises illegal sexual harassment under Title
VII’s anti-discrimination provisions. For instance, Ann McGinley contends that “[a]
business that creates a risk of serious harassment should develop systems to prevent and
correct harassing behavior.” 104 Other commentators agree that even within sexualized
workplaces workers should be entitled to be free from unwelcome sexual behavior. 105
Assimilationists also identify a second axis of degradation covered by
discrimination law. A pointed critique of sex markets is that they erect hierarchies along
the lines of race and other forms of body capital. Hence, one study of prostitution found
the women sorted along lines of race, with white, Asian, and lighter-skinned black
women dominating the higher-end “strolls” and darker-skinned and older women
relegated to less lucrative, and more harassing and dangerous, ones. 106 Similarly, as the
Live Nude Girls Unite! documentary described, minorities in the dancing industry have
101 [perhaps add comparative paragraph]
102
103
Maticka-Tyndale, supra note [x], at 95, 99; [also check Gall Unionisation website].
104
Ann C. McGinley, Harassment of Sex(y) Workers: Applying Title VII to Sexualized Industries, 18 YALE
J.L. & FEM. 65, 98 (2006).
105
See infra notes [x] and accompanying text for discussion of the debate over sexual harassment liability
in sexual workplaces.
106
The predominantly White, Asian and light-skinned Black women on the crowded and brightly lit
Geary-Mason stroll command the highest prices. They are young, slim and expensively dressed;
their tightly-fitted suits, sweater sets and fur or leather coats code them for a relatively upscale
market. Physically, only their shorter-than-average skirts, “big hair” and heavy makeup set them
apart from many of the dressed-up female tourists or theater and restaurant goers who walk past
them, and the differences may be quite subtle. They strive to project an image they describe as
“nice, normal, classy.” Perhaps the main distinguishing characteristic of these women is their
tendency to stand alone, unescorted, or to congregate in all-female groups and smoke between
dates.
Bernstein, supra note [x], at 103 (footnotes omitted). The paper then gives the pricing structures per class.
21

fewer opportunities, and less lucrative ones, than white dancers. Siobhan Brooks’ recent
study of three dance clubs in New York and Oakland found:
When women of color are working in predominately White clubs that offer more
security and are located in areas with higher property values, they often are paid
less than their White counterparts, marginalized as token hires, or employed in
lower-tier job positions. Women of color working in clubs predominately
employing people of color, may make good money, but are subject to unjust
working conditions, customer expectations that services will be cheaper, and
unsafe neighborhood spaces—erotic capital is not separate from institutions or
other forms of capital. 107
Thus, racial groups have very different erotic capital, and this translates into very
different work opportunities in sex markets. Assimilationists such as Brooks make much
of this disparity. She observes: “Racism against Black women in this industry is usually
viewed as normal because, like other appearance- based industries (such as modeling,
acting), the sex industry is based on ideas of customer taste and preference.” 108 Yet she
contends that racialized desire in the erotic industry is no less socially constructed than in
other areas of social interaction, and should be considered impermissible employment
discrimination under Title VII. 109 While less visible in the discourse, presumably older
sex workers and disabled ones experience discrimination, outside of niche or fetish
markets. 110
Degradation of sex workers then takes two forms. Women working in sex
markets are routinely subject to a degree and form of gendered harassment that is
exceptional in other contemporary, domestic workplaces. In addition, disparate treatment
of women with non-normative bodies is pervasive, resulting in hierarchies along lines of
race, age, and ability. 111 Legal norms have shifted in the last forty years, to hold
employers liable for discriminatory practices, including, of course, disparate treatment
and harassment. Assimilationists want access to this set of rules.
In sum, in addition to giving sex laborers the ability to enforce their contracts and
to access basic employee benefits, assimilationists anticipate that recognizing sexual
labor as legitimate work would also give workers protection from dangerous, dirty, and
degrading workplaces. As this next part shows, dirt and danger concerns typically are
regulated in tandem through health and safety regulations. There are some separate,
common law tort rules pertaining to workplace violence, but much of it falls within
workers’ compensation or OSHA regulations. Degradation, as discussed, typically is
107 BROOKS, supra note [x], at 3-4, 101. She finds that clubs where women of color are concentrated have
the worst terms and conditions, e.g., higher stage fees, more harassment, and coerced prostitution. See also
Tanya Kateri Hernandez, Sexual Harassment and Racial Disparity: The Mutual Construction of Gender
and Race, 4 J. GENDER RACE & JUST. 183 (2001) (discussing how race is a work in sex tourism industry).
108 BROOKS, supra note [x], at 99.
109 See also Rutman, supra note [x], at 534 (“Despite the seemingly obvious requirement that dancers be
attractive, Title VII protections still adhere to prevent discrimination against protected classes.”). [See infra
notes [x] and accompanying text.]
110 In fact, the propensity for marginalizing older dancers was one point of contention at the Lusty Lady.
[elaborate how older dancers were treated] See, e.g., Emens, supra note [x], at 1343-45 (describing
“acrotomophilia,” or desire for amputees).]
111 For instance, Margot Rutman speculates: “Obese exotic dancers might be protected under the ADA from
discrimination in some instances.” Rutman, supra note [x], at 534 n.165 [add discussion on dignitary
harms] [disparate impact?]
22

egulated by discrimination law, either sexual harassment or disparate treatment doctrine.
Assimilationists’ claim is that sex workplaces should be regulated “like any other
workplace.” Let’s see, then, how “other workplaces” are regulated.
B. Employee Status
The trilogy of laws collectively known as the National Labor Relations Act gives
workers the right to organize, collectively bargain, and strike, but limits this to those
deemed to be employees, excluding independent contractors. 112 Similarly, the Fair
Labor Standards Act and other labor doctrine limits to employees many of the other
benefits sex bargainers seek, such as minimum wage, retirement and health benefits,
social security, and unemployment. 113 Yet, the legal test for employee status remains
amorphous. As one casebook notes, “The question whether a worker is an independent
contractor or an employee cannot be answered in the abstract and there is no uniform
doctrinal test for status. Instead, the issue must be examined in the context of the
legislative purpose of the particular statutory rights at issue.” 114 [add discussion of
control test and other factors] Under such a test, litigation over employee status is
legion. 115
C. Health & Safety Regulations
Workplace health and safety are regulated primarily through two sets of doctrine,
state workers’ compensation laws and the federal regulations and guidelines enacted by
the Occupational Health & Safety Act. Workers’ compensation is, in effect, a state-based
insurance system that covers injuries that stem from “accidental injuries” that “arise out
of” or “in the course of” employment. 116 The system has two signal features. First, it
limits employer liability. Importantly, actual loss is not part of the equation, and in the
vast majority of states neither punitive damages nor emotional pain and suffering are
available. 117 In exchange, injured workers do not have to prove employer fault. 118
Instead, an administrative agency addresses claims, typically more rapidly and
inexpensively than litigation would. Workers’ compensation transforms workplace
112
“The theory of the Act was that requiring the exchange of information and establishing a therapeutic
outlet for discussion would encourage employers and unions to resolve their differences through bargaining
rather than through the exercise of economic weapons (the strike and the lockout).” WORK LAW: CASES
AND MATERIALS 2d edition 21-22 (Marion G. Crain et al eds., 2010) [hereinafter WORK LAW].
113
[add citation]
114
WORK LAW, supra note [x], at 74.
115
[add citations]
116
MARION CRAIN ET AL, WORK LAW: CASES AND MATERIALS 2d ed. [pincite] (2010) [hereinafter WORK
LAW] (describing different states’ statutory language). There are some federal iterations as well. See, e.g.,
Federal Employees’ Compensation Act, 5 U.S.C. sects. 8101-93 (federal employees); Longshore and
Harbor Workers’ Compensation Act, 33 U.S.C. sects. 901-50 (ship, harbor, and railroad employees); [add
others?].
117
“[T]he concepts of punishment and deterrence that lie behind punitive damages are absent from the
system.” WORK LAW, supra note [x], at 954. In addition, the exclusivity of remedies rules limit employees
to workers’ compensation claims, barring them from bringing claims through tort suits, which could yield
much greater awards. For further discussion of this doctrine, see infra note [x].
118
See, e.g., WORK LAW, supra note [x], at 953 (it is a “fundamental compromise—no fault compensation
in exchange for limited liability”).
23

liability questions from ones of employer fault and causation (and accompanying
common law tort defenses 119 ) to worker need. While there is significant variance across
states, they now cover most workplaces, providing workers with a safety net. 120
Initially, workers’ compensation was designed to address industrial accidents. As
John Fabian Witt observes, “Nineteenth-century observers believed both that the number
of accidental injuries was increasing and that the cause of the increase was the
mechanization of production.” 121 Coal mining and railroads topped the list for workplace
accidents, followed by logging, bricklaying, and masonry. 122 These industrial accidents
devastated not only the worker, but also their families. “Work accidents, it seemed,
threw the ambiguous status of the industrial worker into bold relief, compelling victim
and observer alike to ask hard questions about the relationships among capital, labor, and
the public.” 123 Of course, as the title of Fabian’s book, Crippled Workingmen and
Destitute Widows, suggests, all of this was intensely gendered. The jobs that dominated
the public and regulatory imaginary as “dangerous” were ones limited to male workers.
Similarly, the ideal of a worker who would provide the sole or primary “family wage”
was imagined to be a male head of household. Hence, in its initial formulation, workers’
compensation was actually legally and culturally conceived as workman’s
compensation. 124
Operating alongside state workers’ compensation statutes are federal health and
safety regulations. Following Macklin’s schema, workplace risk can be divided along
two axes, “danger,” or safety, and “dirt,” or health. The Occupational Health & Safety
Agency (OSHA) aggregates the two under its health and safety regulations. Enacted in
1970, Congress charged OSHA with “promulgating regulations, inspecting workplaces,
and prosecuting violations of its regulations and standards.” 125 Unlike workers’
compensation, which functions primarily as a compensation scheme, labor reformers and
Congress conceived OSHA explicitly to deter risk and achieve safer workplaces. 126
OSHA’s goal is to “assure so far as possible every working man and woman in the
Nation safe and healthful working conditions . . . .” 127 However, as some commentators
explain, because of the political difficulties it faces in enacting new regulations, OSHA
“commonly relies on . . . [its] general duty clause” in lieu of enacting specific
119 WORK LAW, supra note [x], at 946 (describing how fellow-servant rule, assumption of risk, and
contributory negligence operated as employer defenses to liability for workplace injuries).
120 “[T]he various state laws vary greatly in their details on such issues as what types of injuries are
compensable and how benefit levels are determined.” WORK LAW, supra note [x], at 953.
121 JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC: CRIPPLED WORKINGMEN, DESTITUTE WIDOWS, AND
THE REMAKING OF AMERICAN LAW 2 (2004). See also [add other cites]
122 Id. at [pincite].
123 Id. at [pincite].
124 It was also “raced.” [elaborate on exclusion of black families from these patriarchal and paternalist
norms]
125 WORK LAW, supra note [x], at 1000. [add citation to statute] Operating within the Department of
Labor, OSHA oversees private workplaces, regulating “more than 100 million workers in more than eight
million workplaces.” Id. at 1001. In addition, states are authorized to enact their own OSHA’s, using the
federal statute as a floor. Id. [add some other basic background on OSHA]
126 Of course, as an insurance scheme, workers’ compensation, too, has some deterrence function.
Employee pay-outs affect employers’ contributions. [add citation] See generally [add citations on debate
over deterrence effects]
127 29 U.S.C sect. 651(b).
24

egulations. 128 Although criticized by employers and workers alike, OSHA is held
largely responsible for reducing the number of annual workplace fatalities from 70,000 to
approximately 5,000 in the last decade. 129
Together, workers’ compensation and OSHA are the primary mechanisms for
achieving healthy and safe workplaces. Yet, workers receive vastly different degrees and
types of protection, depending on their workplace, the work they do, and the type of risk
they confront in the workplace. Workers receive the most comprehensive protection
from the single-incident industrial injuries initially envisioned by the workers’
compensation system. OSHA has developed adequate standards to address worker risk
posed by machines and other equipment typically found in factories and other
manufacturing workplaces. [add quote or elaborate] In the absence of specific
recommendations, courts have found OSHA’s general duty clause governs much of this
workplace risk. (The question of whether OSHA’s enforcement is effective is a different
matter. 130 ) Ex post, after a single-incident injury, workers’ compensation provides
medical benefits to cover rehabilitation, as well as benefits to cover temporary and
permanent loss of income. As noted above, these benefits are paid according to a predetermined
schedule, and workers receive only partial compensation. Still, between
OSHA’s deterrence rules and workers’ compensation’s ex post benefits, our regulatory
regime covers reasonably well the single-incident workplace risk that inspired it.
However, beyond these single-incident industrial injuries, there remains significant
uncertainty on what kinds of worker injuries are covered and when. “In particular,
coverage of occupational diseases, repetitive stress injuries and mental injuries have
proven controversial.” 131 After decades of struggle, workers won the inclusion of
“disease” in workers’ compensation statutes, yet, “those suffering from work-related
diseases still face considerable hurdles” in obtaining benefits. 132 Hence, even miners
have found it more difficult to recover for black-lung and related diseases than for the
incident-related injuries that inspired the system. 133 OSHA, meanwhile, has struggled to
gain authority over this type of workplace risk. In the 1990s, the agency tried to establish
erogonomic standards to address repetitive-motion injuries, but was hindered by a
powerful employers’ lobby and a hostile Congress. 134 [address chronic disease] In the
end, there is not a uniform regulatory stance toward workplace risk. Single-incident
injuries associated with industrial workplaces are at one end of the spectrum, receiving
the most regulatory attention, while at the other lie the more chronic injuries which have
128
The general duty clause states: “[e]ach employer [] shall furnish to each of his employees employment
and a place of employment which are free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees[.]” [add citation] “OSHA has promulgated far fewer
permanent standards than was originally contemplated, and it often relies on other means to enforce its
statutory mandate.” WORK LAW, supra note [x], at 1001, 1004. See also id. at 1005 (describing second
enforcement mechanism, temporary standards).
129
WORK LAW, supra note [x], at 939. “Today OSHA is perhaps best known for being one of the most
criticized agency that regulates the workplace. Id. at 1000.
130
[add discussion and citations on this]
131
WORK LAW, supra note [x], at 955.
132
WORK LAW, supra note [x], at 955.
133
The first two workers’ compensation statutes were for miners. Arthur Larson, The Nature and Origins
of Workmen’s Compensation, 37 CORNELL L.Q. 206, 231 (1952). [add citations]
134
WORK LAW, supra note [x], at 1004-05. After its ergonomic standard was rescinded by the Bush
Administration, the Department of Labor issued guidelines for discrete industries. Id.
25

ecome “the fastest growing category of workplace injury.” 135 Workers who confront
this type of workplace risk still struggle for regulatory and compensatory relief.
In addition, both workers’ compensation statutes and OSHA have developed
categories of inclusion and exclusion. For instance, professional athletes are statutorily
or functionally excluded from workers’ compensation in many states. Although
frequently injured and disabled from working, courts and legislators have this category of
worker does not warrant coverage because [fill in rationale]. 136 [add others] These
categorical inclusions and exclusions are most apparent, however, when it comes one
primary form of workplace danger identified by sex workers—violence.
Over two million workers are victims of workplace violence each year. 137 In fact,
homicide, not cave-ins or machine malfunctions, is the [fourth] leading cause of
workplace fatalities and the leading cause for women workers. 138 Yet, as numerous
commentators have noted, workplace violence seems to fall through the regulatory
cracks. OSHA is nominally charged with protecting workers from violence in the
workplace. Although the agency does not have specific standards for workplace
violence, its general duty clause imposes a broad obligation on employers to guarantee
their employees a safe working environment. However, as numerous critics have pointed
out, “there has been virtually no enforcement of this duty with regard to workplace
violence.” 139 As with other risk, violence is not equally distributed across workplaces—
workers in late night retail, i.e., convenience stores, health care, and service jobs are the
135 WORK LAW, supra note [x], at 1004.
136 See, e.g., Stephen Cormac Carlin & Christopher M. Fairman, Note, Squeeze Play: Workers’
Compensation and the Professional Athlete, 12 U. MIAMI ENT. & SPORTS L. REV. 95 (1994) (noting how
both workers’ compensation statutes and their own contracts limit professional athletes’ claims for injury);
Rachel Schaffer, Grabbing Them by the Balls: Legislatures, Courts, and Team Owners Bar Non-Elite
Professional Athletes from Workers’ Compensation, 8 AM. U.J. GENDER SOC. POL’Y & L. 623 (2000);
[GERALD HERZ & ROBERT C. BAKER JR., PROFESSIONAL ATHLETES AND THE LAW OF WORKERS’
COMPENSATION: RIGHTS AND REMEDIES; Frederic Pepe & Thomas P. Frerichs, Injustice Uncovered?
Worker’s Compensation and the Professional Athlete, in SPORTS AND THE LAW 18, 19 (Charles E. Quirk
ed., 1996) (noting misconception that all professional athletes are overpaid and arguing that professional
athletes need same legal protection as ordinary working people precisely because they do not earn large
salaries); Professional and Amateur Sports 15-1, 15-17, at 15.04 (Gary A. Uberstine ed., 1991) (contrasting
temporary disability benefits and permanent disability benefits)]
137 [add citation]
138 [add citations; compare to 1 million number]. Workplace violence comprises 15% of all violence in the
country. [add citation] Last decade, “[d]eaths resulting from workplace violence [were] the fastest
growing type of homicide in the United States.” Jules M. Davis, Potential Violence to the Bottom Line—
Expanding Employer Liability for Acts of Workplace Violence in North Carolina, 78 N.C.L. REV. 2053
(2000). “In 1993, the National Safe Workplace Institute estimated the total annual economic cost of
workplace violence to be $ 4.2 billion.” Id. at 2055. [find more recent stats: “In 1998 alone, 709
homicides, 1.5 million simple assaults, 396,000 aggravated assaults, 51,000 rapes and sexual assaults, and
84,000 robberies resulted from workplace violence.”]
139 Note, Sheryl L. Erdmann, Eat the Carrot and Use the Stick: The Prevalence of Workplace Violence
Demands Proactive Federal Regulation of Employers, 43 VAL. U.L. REV. 725, 727 ( 2009) (footnote
omitted). See also Davis, supra note [x], at 726-27 (“The Occupational Safety & Health Administration
("OSHA") holds employers to a general duty to shield employees from hazards and injury. However, there
has been virtually no enforcement of this duty with regard to workplace violence.”) (footnote omitted). In
addition, in 1995 there was an administrative law ruling that strict liability would not be imposed on
employers for hazards that were not recognized by the employers’ industry. [add citation]
26

most vulnerable to workplace violence. 140 Accordingly, OSHA has issued specific
guidelines and recommendations for two of these high-risk industries, health care and
social service workplaces and late-night retail stores. 141 Still, these guidelines remain
advisory only, and no workplace is subject to mandatory rules from OSHA regarding
preventing workplace violence. 142
In the absence of leadership by OSHA in deterring workplace violence, workers’
compensation has emerged as the “primary compensatory remedy.” 143 Workers’
compensation operates as almost the converse of OSHA: while OSHA has issued
guidelines covering only two high-risk industries, 90% of workers nominally are covered
by workers’ compensation for workplace violence. 144 Yet, state systems have developed
their own doctrinal exclusions, which disproportionately affect some workplaces where
violence is a dominant risk. Ironically, while OSHA identifies all-night retail as a highrisk
industry, many courts have denied workers’ compensation claims for convenience
store assaults as not meeting the requirements that injuries “arise out of” or “in the course
of employment.” 145 [check on other workplace assaults] In some jurisdictions, this has
emerged as a categorical exclusion. 146 For instance, [describe Alabama exclusions].
Moreover, under workers’ compensation there is no recovery for emotional suffering,
which severely limits relief for some workplace injuries. 147 Consider for a moment a
form of violence prevalent in both sex businesses and convenience stores: sexual
assault. 148 Many courts have found that workplace rapes do not “arise from the
employment” and hence are exempt from workers’ compensation benefits. 149 Moreover,
a rape victim may not suffer lasting physical impairment, required for workers’
compensation benefits. The emotional suffering many sexual assault victims experience
is excluded. 150 In sum, workers’ compensation excludes some of the most devastating
140
For homicide, “most of the victims work in retail trade, security services, or transit services
occupations.” Jane Lipscomb et al, Preventing Injuries & Abuse: Perspectives on Legal Strategies to
Prevent Workplace Violence, 30 J.L. MED. & ETHICS 166, 166 (2002). On the other hand, “[t]he majority
of non-fatal workplace injuries occur in settings in which the victim and the attacker are in a custodial or
client-caregiver relationship, such as in health care or social services.” Id. These statistics also vary
according to geography. For instance, in New York City, in [dates] the workers at greatest risk from
violence were taxi drivers and grocery store workers. Susan L. Pollett, Violence in the Workplace: Are
Employers Legally Responsible?, 22 WESTCHESTER B.J. 133, 138 (1995).
141
[add citation]
142
“Many groups, including labor unions, police departments, industry representatives, professional safety
associations, and federal and state agencies, have begun to recognize that Occupational Safety and Health
Administration (OSHA) inspectors should use the general duty clause of the Occupational Safety and
Health Act (OSHAct) as a cudgel to force employers to address workplace violence more effectively.”
Robert S. Goldberg, Comment: Victims of Criminal Violence in the Workplace: An Assessment of Remedies
in the United States and Great Britain, 18 COMP. LAB. L. 397, [add pincite] (1997).
143
Goldberg, supra note [x], at (footnote omitted).
144
[add citation]
145
See, e.g., WORK LAW, supra note [x], at 974-75.
146
See, e.g., Goldberg, supra note [x], at [pincite].
147
“In cases of workplace violence, where injuries are emotionally damaging to the victim, workers'
compensation is wholly inadequate as a remedy.” [cite].
148
[add statistics on rape and rape/homicide in convenience stores]
149
It is an interesting question whether court would be more likely to conclude that sexual assaults in sex
workplaces meet the link to employment. This is addressed infra notes [x] and accompanying text.
150
[add citation]
27

violence that employees experience. Thus, the “danger” many sex workers fear most,
violence, is ineffectively and sporadically regulated by existing labor law.
Stepping into this regulatory void, other state and federal regulations target some of
the most dangerous workplaces. For instance, responding to a massive increase in
violence against workers at all-night convenience stores, Florida passed the Convenience
Business Security Act, which imposed security obligations on stores that had experienced
a violent incident. 151 Florida’s statute has emerged as a model for other states. 152
Similarly, the state of Washington passed a statute that imposes certain obligations on
health care employers to prevent workplace violence. 153 Violence against workers at
abortion clinics led both the federal government and the state of California to enact clinic
access laws that give “local police and district attorneys a clearer mandate to prosecute
anti-abortion violence.” 154 Finally, many commentators have responded to the regulatory
void by urging a return to the common-law system as the best option for victims of for
workplace violence. 155
In sum, not all work or workers are treated alike when it comes to risk. Some injuries
are the object of both deterrence and compensatory regulation. But workers susceptible
to other kinds of risk continue to struggle for legal cognition. This differential is
particularly noteworthy with regard to workplace violence. Some industries enjoy
special, targeted regulation to ameliorate workplace violence. 156 However some of the
most dangerous workplaces are ones where the “danger” is largely unregulated or the
injury is incompensable. Hence, the notion of an ideal “workplace” is a miscue when it
comes to health and safety regulation.
D. Discrimination
If danger concerns are governed by a complex interplay of compensatory state
insurance schemes, federal occupational health and safety regulations, and common law
litigation, then the workplace “degradation” identified by sex work advocates is typically
within the province of discrimination law. Several federal laws curb the extent to which
employers can discriminate against their workers. Title VII of the Civil Rights Act of
1964 prohibits employers from discriminating in hiring, promotion, termination, training,
151
152 [add citations]
153
154 See, e.g,, [add citation] (discussing operation of clinic access laws).
155 And finally, while declining to impose obligations on employers, some states offer various common-law
routes to recovery against employers for victims of workplace violence. Workers and their survivors have
enjoyed mixed success under both contract and tort theories of breach of duty to provide security and
negligent hiring and retention. An initial hurdle, however, to common-law recovery is the workers’
compensation system and its exclusivity of remedies rule, which prevents employees from seeking full
compensation or compensation for the severe mental and emotional suffering that accompany workplace
violence. [fill in from notes]
156 More broadly, several states have enacted statutes that permit employers to act on behalf of their
employees and get temporary restraining orders against individuals for harassment and stalking. See, e.g.,
[California, Arkansas, Colorado, Georgia, Indiana, Nevada, Rhode Island, and Tennessee]
28

and other employment terms on the basis of race, sex, religion, color, or national
origin. 157 Passed shortly after Title VII, the Age Discrimination in Employment Act of
1967 bars employment discrimination against workers aged 40 or older. 158 The final
piece of employment discrimination legislation came in 1990 with the Americans with
Disabilities Act (ADA), a broad mandate prohibiting discrimination, including in the
workplace. 159 Taken together, these anti-discrimination laws sharply limit the extent to
which employers can indulge their preferences and biases, and, equally crucially, the
preferences and biases of their customers. Yet, there are some important exceptions that
do not operate equally among the legislation.
Although regulated under different statutory regimes, age, religion, national
origin, and sex all are subject to a bona fide occupational qualification exemption (bfoq).
This means that employers can discriminate if the characteristic is related to the “central
mission” or “essence” of the business. 160 Classic examples of age bfoq’s include
retirement ages for bus drivers and airline pilots, both of which courts have upheld as
[add quote]. “Authenticity” of a service or product is another bfoq. Religion and
national origin are most commonly exempted under authenticity bfoq’s. Hence, the
Catholic Church can hire only Catholics (and men) as priests, and Chinese restaurants can
hire Chinese chefs. 161 Authenticity also reaches gender, as filmmakers can hire men to
play male parts. 162 In fact, the gender bfoq for Hollywood is even included in a comment
in the EEOC Guidelines. 163
Apart from authenticity, which gender shares with religion, national origin, and,
presumably, age, gender has developed its own, complex, jurisprudence on bfoq’s. As
Kimberly Yuracko points out, this is especially apparent in the service sector. Unlike,
say, manufacturing, where customers typically differentiate among products, in service
work, customers can develop strong preferences for particular kinds of workers or
characteristics. 164 Employers develop and exploit these preferences to market their
business, in ways the law has deemed both legitimate and illegitimate. 165
157 [add citation]
158 [add citation]
159 [add citation]
160 Yuracko defines the “essence” of a business as follows: “inherent meaning, shared social meaning,
employer-defined and customer-defined.” Yuracko, supra note [x], at [pincite].
161 In one controversial decision, the religion bfoq was even extended to hiring a philosophy professor at a
religious university. [add citation and articles discussing] Consistency, however, is required. Hence, a
Chinese restaurant that hired French, Italian, and Japanese chefs could not then exclude Mexican
applicants. [add citation]
162 Mary Anne Case called it “bizarre that sex is considered a BFOQ, in the interests of ‘authenticity or
genuineness,’ for the job of actor or actress . . . . After all, the very essence of this job is to be something
one is not. All that a producer should be allowed to require is that the pretense be convincing.” Mary Anne
C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and
Feminist Jurisprudence, 105 YALE L.J. 1 (1995). Russell Robinson elaborates, “Actors generally do not
face authenticity requirements regarding many character traits; for example, an actor need not be gay or
have a disability or pregnant in order to play a character with that trait. Indeed, good acting is often defined
as the ability to pull off a role quite different from the actor’s own identity.” Robinson, supra note [x], at
31-32.
163 The Guidelines purport to authorize sex discrimination in casting insofar as it is “necessary for the
purpose of authenticity or genuineness.” [add citation]
164 Kimberly Yuracko notes, “Two types of customer preferences define each business: preferences for
products and preferences for people. Businesses are shaped most obviously by customer preferences for
29

Gender stereotypes provide a fascinating case in point. Employer efforts to
justify discriminatory practices based on gender stereotypes, including both nurturing and
sexual titillation, were rejected by courts in a famous series of 1970s cases. Faced with
airlines’ efforts to limit the position of flight attendant to young, “attractive” women,
courts held they could not exclude men from the position of flight attendant nor subject
women flight attendants but not men to weight restrictions. 166 Yet, the sex bfoq remains
robust in other service sectors. 167 Courts have upheld gender as a valid criterion for
discrimination for nurses who work in labor and delivery rooms, nursing home attendants
who bathe and dress patients, restroom attendants, and, in some cases, for prison
guards. 168 Importantly, the courts cite as the relevant factor the employer’s reasonable
regard for its patrons’ privacy. 169 A second exemption is for workplaces where the
business is “sexual gratification.” Courts have upheld the right of employers in the sex
business to employ only women (or, presumably, only men). 170 Yet here, courts are
careful to distinguish businesses that sell sexual gratification from those that sell sexual
titillation along with another service, such as meals, air flights, etc. Employer efforts to
assert bfoq’s in what Kimberley Yuracko terms “plus-sex” businesses rarely win. 171
certain goods and services. A business will not stay afloat if there is no customer demand for its good or if
its service does not meet customer expectations. Businesses are also shaped, however, by customer
preferences for certain types of employees or service providers. Customer preferences to have certain
services provided by employees of a particular sex may, for example, be grounded in (1) a belief that
individuals of one sex are superior in all or particular activities to individuals of the other sex, (2) socially,
or perhaps biologically, conditioned feelings of discomfort at having certain services performed by an
individual of a particular sex, (3) a desire to experience or avoid sexual titillation, or (4) a sense of socially
or aesthetically appropriate gender roles.” Yuracko, supra note [x], at [pincite]. Of course, many
businesses may use their workers to try to link their products to an idea or image. Frequently, this is an
effort to turn a product into a service. [add examples; thinking of Saturn]
165
Marion Crain describes employer efforts to differentiate their business and create consumer loyalty
through the “brand.” [fill in] See, e.g., Dianne Avery & Marion Crain, Branded: Corporate Image, Sexual
Stereotyping, and the New Face of Capitalism, 14 DUKE J. GENDER L. & POL’Y 13 (2007) ([add
parenthetical quote]). See also Marion Crain, Managing Identity: Buying into the Brand at Work, 95 IOWA
L. REV. 1179 (2010) (describing how employers use “brand” to induce worker loyalty in absence of
traditional incentives such as retirement benefits and job security).
166
[add citations]
167
[only limited success in manufacturing, etc]
168
For privacy, Yuracko develops a spectrum from touching (labor room and other care givers) to seeing to
embarrassment but not touching or seeing (rest-room attendants). She contends [fill in]. Yuracko, supra
note [x], at [pincite]. See also Frank, supra note [x], at [pincite] (noting that “within the privacy cases, the
courts deem the interests of ordinary customers in their privacy to be less than those of patients in nursing
and health care facilities”).
169
“The courts that have permitted the privacy-based sex BFOQ believe that the very sex of the excluded
individuals prevents them from giving customers adequate privacy. Accordingly, the test for the privacybased
sex BFOQ is whether the excluded applicants can satisfactorily respect the privacy of customers in
the performance of the job.” Franks, supra note [x], at 490. While Yuracko notes the “symmetry” in
privacy preferences, Franks notes that the privacy bfoq defense typically only is applied to women’s
privacy preferences, not to men’s. Id. at [pincite]; Yuracko, supra note [x], at [pincite].
170
[add citations, including dicta from Wilson v. Southwest alluding to permissibility of gender
discrimination in strip clubs]
171
“Attempts to discriminate on the basis of sex in hiring for plus-sex businesses are virtually always
unsuccessful.” Yuracko, supra note [x], at n.28. She claims that airlines and related cases demonstrate that
“courts simply do not permit employers to explicitly sell sexual titillation along with other goods and
services.” Id. at [pincite]. Yuracko also believes that most employers would not risk association as a
30

Hence, privacy and sexual gratification are noteworthy as the only areas of Title VII
where customer “tastes for discrimination” trump workers’ rights to equal treatment. 172
Importantly, though, employers cannot defer to their own or their customers’
racial preferences or biases. Unlike sex, neither race nor disability has a bfoq exemption.
The standard for disability is that employers must make “reasonable accommodations”
and not deny an opportunity to an otherwise qualified individual. 173 And race is
straightforward: [add judicial quote re no bfoq for race]. Yet, when it comes to
“authenticity,” there appear to be some implied bfoq’s for race in employment. For
instance, commentators have speculated that law enforcement can fairly limit undercover
agents by race, i.e., limit Klan infiltration to white officers. 174 There also seem to be
implied exemptions in the appearance-industries. Most notably, Russell Robinson and
Michael J. Franks have both observed that race seems to enjoy an implied bfoq for race in
the highly influential and profitable filmmaking industry. 175 Writing in 2001 and 2007,
neither author found any litigation regarding the very prevalent racial preferences in
casting decisions. 176 As Robinson observes, “Indeed, when it comes to casting, an entire
industry effectively disregards Title VII.” 177 Noting the prevalence of racial
specifications in casting breakdowns, 178 he continues, “the EEOC carves out casting as an
arbitrary exception to the normal requirement that an applicant be considered as an
individual and not saddled with group-based stereotypes and the ban on catering to
sexual gratification business. “Businesses explicitly selling sexual titillation may do so only by positioning
themselves within the traditionally marginalized and stigmatized sex industry. Businesses that seek to bring
sexual titillation into the mainstream by combining sexual titillation (and sex-based hiring) with the sale of
other goods and services are not permitted to exist.” Id. at 196. Ann McGinley, on the other hand, is not as
sanguine about the plus-sex/sexual gratification dichotomy. McGinley finds “[t]he lines between sex work,
work in a highly sexualized environment, and other work requiring employees to ‘sell’ their sex or gender
to give up control over their intimate emotions are hazy.” McGinley, supra note [x], at 95 (footnote
omitted). Instead, “[o]ften, a woman’s job prospects and ability to advance within an enterprise are linked
to her setting the proper gender tone on the scale of commodification.” Id. at 94 (footnote omitted).
172
Kimberly Yuracko, however, disputes this as the real reason for the distinction. Instead, she contends
[add].
173
[add citation]
174
Some have also suggested that newspapers might send white reporters to interview Klan members. [add
citations] Russell Robinson observes that “A few courts have suggested without holding that Title VII
could permit a BFOQ for race in certain contexts, like police forces and prison security.” Russell K.
Robinson, Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms, 95 CALIF.
L. REV. 1, 41 (2007).
175
Michael J. Franks, Justifiable Discrimination in the News and Entertainment Industries: Does Title VII
Need a Race or Color BFOQ?, 35 U.S.F. L. REV. 473 (2001); Robinson, supra note [x].
176
Franks, supra note [x], (“There is not a single reported case in which an actor has sued a director for
race-based casting decisions, even though it is common.”); Robinson, supra note [x] (noting his research
“did not turn up a single published decision in which a court adjudicated an actor’s Title VII claim of race
or sex discrimination.”). [fill in Hunter Tylo pregnancy discrimination suit; jury decision for $4.8 million,
which many speculate was based on Spelling’s accommodation of previous pregnant actresses; (cite
Russell’s UCLA brief)].
177
Robinson, supra note [x], at 5.
178
Robinson contrasts race and sex specifications in casting breakdowns. “This common sequencing
suggests that sex forms the foundation of a character more than the traits that follow, such as race and
age.”; 45.2% of breakdowns had racial code, versus 94% for gender and "”women over 40 [who] are as
much a minority as any ethnic group.”” Robinson, supra note [x], at 19.
31

customer preferences.” 179 While not litigated, another appearance-industry, modeling,
appears to enjoy a similar bfoq. Fashion designers routinely exclude non-white models
from highly lucrative runway shows and advertising campaigns, or, alternatively, use race
to organize their shows. Since they are not casting “characters” they cannot turn to the
authenticity bfoq, and it is curious why, as with the film industry, there is not any
litigation. In sum, while nominally there are not bfoq’s for race discrimination, the
reality is that appearance industries routinely make hiring and other employment
decisions based on race without fear of litigation. 180
A second form of sex discrimination prohibited by Title VII is sexual harassment,
another characteristic of their workplaces that sex workers hope fuller regulation would
ameliorate. In 1986 the Supreme Court recognized that sexual harassment, whether
conditioning terms and conditions on sex or creating a hostile work environment,
comprised impermissible sex discrimination under Title VII. 181 The standard for sexual
harassment is that employers will be liable for failing to prevent unwelcome sexual
advances. [fill in] In particular, employers are found liable where “sexual provocation
was not an essential part of the job and invited customer harassment.” 182 While a
nominally universal norm, parties dispute whether there should be different standards,
depending on the type of workplace. 183
In sum, anti-discrimination law operates in two registers. Formally, age, religion,
national origin, and sex each have bfoq’s. Bfoq’s for sex are complex and unpredictable,
with some courts giving some deference to both privacy and sexual gratification. Race
and disability nominally do not have bfoq’s, but several commentators conclude that race
has an implied bfoq for appearance-based industries.
In the end, then, an overview of labor regulation suggests the diversity of
workplaces. It is unclear which, exactly, sex bargainers invoke when they claim “just
labor,” although a safe guess is they seek to invoke the archetypal manufacturing
workplace, which is subject, at least formally, to the strictest form of regulations for
Advocates urge conceiving commodified sex as “just labor” to achieve a variety
of effects. For anyone interested in social justice ameliorating the conditions of those I
the sex industry should be an easy cause to support. Yet, there are some unperceived
downsides to this framework. The sex as “just” labor then tends to elide and obscure the
179 Robinson, supra note [x], at 34. Compare Robinson, supra note [x], at 40 (“advocate[ing] a different
approach that acknowledges First Amendment concerns and focuses not on whether a female can
‘authentically’ play a male, but on whether the sex of the character could be changed without doing
substantial harm to the narrative.”) with Franks, supra note [x], at 498 (“Despite Congress’ omission of
race from the BFOQ provision, people accept the reasonableness and morality of recognizing a BFOQ for
race, at least in some instances involving the entertainment industry. Indeed, to demonstrate the necessity
of a race BFOQ, some scholars use as their prime example the need to employ black actors to portray black
characters.”).
180 See Franks or Robinson (speculating on reasons for absence of litigation). Even Deborah Rhode, in her
recent book urging that appearance should be impermissible under discrimination law, makes an exception
for the “appearance” industries of acting, modeling, and stripping. RHODE, supra note [x], at [pincite].
181 See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Prior to the Supreme Court’s ruling,
some appellate courts had recognized sexual harassment as a viable cause of action under Title VII. [add
citations].
182 [add citation]
183 See infra notes [x] and accompanying text.
32

diversity of workplaces. Within these, regulation against both danger and degradation
take very different forms, according to the workplace. It is unclear that the mere fact of
recognizing sex as labor will yield the regulatory effects advocates envision. In addition,
as the next Section shows, not only are there a diversity of workplaces, but there are also
a Sex workplaces differ not only from many other workplaces, but also from each other.
The next Section explores both the diversity of sex workplaces, and the distinctive
challenges of regulating them, in order to contemplate whether and how sex workplaces
could be more effectively regulated in order to ameliorate both danger and degradation.
Within this, the particular manifestations of sex workplaces may not fit seamlessly.
III.PROFESSIONAL SEX: A NEW MODE OF WORK
“[J]ust what is so unique about sex-work?” 184
Determining the status of prostitution is complicated. While some countries
completely criminalize prostitution, in most sex work has some sort of legally liminal
status, in which aspects of it are criminalized and others are not. 185 Importantly, many
jurisdictions differentiate between prostitution itself, i.e., selling sex, brothels, or
operating an establishment in which prostitution occurs, and “pimping,” defined
variously as “assistance” or “living off the earnings of prostitution,” "controlling
prostitution for gain,” or “exploitative” or “coercive” behavior. 186 In one study, of 100
countries surveyed, thirty-eight currently completely criminalize prostitution. 187 In every
country that criminalizes prostitution, brothel ownership and pimping likewise are
illegal. 188 Liability and penalties vary by country, and, within some countries, by
jurisdiction. 189 In [where should Nicaragua go in this paragraph???] seven countries
184 Tinsman, supra note [x].
185 Procon.org is a website that surveyed 100 countries, seeking to be “inclusive of major religions,
geographical regions, and policies towards prostitution."
http://prostitution.procon.org/view.resource.php?resourceID=000772 See also [let’s add some other
sources/cites with parentheticals; maybe some human rights and/or ngo’s?]. Germany exemplifies how
difficult it can be to discern the status of prostitution. Some set Germany’s legalization date at 1927, when
the country passed its Law for Combating Venereal Diseases. Others though insist that the relevant date is
the 2002 passage of the Prostitution Act because prior to that, although prostitution was legal under the
German Constitution, both regulations and court decisions restricted the legal and social welfare rights of
prostitutes because prostitution was considered in violation of Germany's moral code. [add the relevant
cites to Germany.]
186 [add cites to these quotations]. See also [add cite] (defining pimping as "lives wholly or in part on the
avails of prostitution of another person."). Rationales differ. Some jurisdictions target brothels and
pimping to prevent “organized” prostitution. Others [add other rationales].
187 [add cite to procon website]. These include China, Egypt, India, both North and South Korea, Jamaica,
Afghanistan, Slovenia and Romania, and Kenya and South Africa.] [eventually we’ll need to add cites to
the countries themselves, but not right now].
188 In China prostitution is criminalized “as a social practice that abrogates the inherent rights of women to
personhood.” (Taiwan, on the other hand, legalized prostitution in 2009.) [add other examples of
rationales].
189 In Egypt, the penalty for prostitutes is 3-36 months in prison and/or a fine. In Iran, prostitutes can be
imprisoned, lashed, or executed by stoning; brothel owners can be imprisoned for up to ten years, and
customers also face criminal penalties. [can you find some other examples apart from Egypt and Iran that
demonstrate the array of penalties?] Some countries impose only fines [add examples?] Some countries
33

prostitution, brothels, and pimping all are legal. 190 Another forty countries have partially
decriminalized sex work, otherwise known as restricted legality. In addition to the
brothel/pimping differentiation, 191 countries can restrict legality by geography, 192
gender, 193 jurisdiction, 194 “role,” that is buying or selling, 195 sex act, 196 and the role of the
differentiate punishment by gender or by role, i.e., prostitutes and customers. [add examples]. [also find a
country where penalties differ by jurisdiction: maybe Australia and U.S.?]
190190
These eight are Ecuador, Germany, Greece, Indonesia, the Netherlands, New Zealand, and Venezuela.
[add procon cite; and again, eventually we’ll want the cites to the countries themselves.] As in
jurisdictions that have criminalized sex work, jurisdictions that have legalized it embrace different
rationales. For instance, Argentina’s constitution provides, "The private actions of people that do not
offend in any way the public order and morality, nor damage a third person, are only reserved to God, and
are exempt from the authority of the magistrates." [add other, different rationales].
191
For instance, in ten countries, prostitution and brothel ownership are legal, but pimping is not. See, e.g.,
[add cite to procon] (Belgium, Columbia, Costa Rica, El Salvador, Guatemala, Panama, Peru, Singapore,
Switzerland, and Turkey). [what about Italy and Israel, which only speak to pimping, which they
criminalize?] Other countries criminalize both brothels and pimping. [which countries are these?]. As
noted above, in no country is pimping legal if brothel ownership is not. See supra note [x] and
accompanying text.
192
Several countries ban prostitution from “public” places. France and Canada both explicitly restrict
prostitution to “private” places and make solicitation in public places illegal. In the United Kingdom
"persistent" solicitation in public places is illegal, as is “kerb crawling.” Finland [fill in]. [which country
says this? “Selling and purchasing sex in public is illegal.”] Other countries, such as Singapore, take the
opposite approach, limiting prostitution to designated “red-light districts.” [add procon and country cites].
In Mexico, prostitution is legal, but many cities restrict it to certain districts. [add procon and country
cites].
193
Some countries engender the criminalization or liability for prostitution. In Bangladesh female
prostitution is legal but male prostitution is not. [add procon and country cites]. In Egypt, the man,
assumed to be the customer, is considered a witness and is exempt from punishment in exchange for
testifying against the prostitute, assumed to be a woman. [add procon and country cites]. [find other
gendered examples].
194
In Mexico and Australia, prostitution is left to the individual states, although it is criminalized in the
former and legal in the latter. [eventually we’ll add cites to these; for now just put in the procon cite]. The
United States leaves the status of prostitution to the individual states, but it is criminalized everywhere
except for eleven rural counties in Nevada, with populations of less than 250,000. See supra note [x], and
accompanying text. Between 1980 and 2009, “indoor” prostitution was legal in Rhode Island because of an
unintentional legislative loophole. The state enacted new legislation criminalizing all prostitution in
November 2009. [we’ll need cites to all of the Rhode Island stuff]. Some municipal jurisdictions, such as
San Francisco, intermittently contemplate decriminalization. [add cite to Prop K debate]. See also Law,
supra note [x], at [pincite]. [figure out after previous section is done] Some call for explicit nonenforcement
of state laws at the local level or for implicit deprioritizing. See, e.g., Law, supra note [x], at
[pincite] (discussing San Francisco and New Jersey Task Forces as case studies of local reform); Leigh,
supra note [x] (discussing San Francisco Task Force recommendations to suspend enforcement of state
laws against prostitution and redirecting resources to services for sex workers and enforcing nuisance
laws).]
195
In some countries, selling sex is legal, but buying it is criminalized. This is the case in Iceland,
Malaysia, Norway, and Sweden. [is this next statement accurate?] These countries recently introduced this
differentiation, influenced in large part by feminist/sex work advocacy groups.
196
For instance, Japan criminalizes only intercourse; other sexual acts are legal. [add procon and country
cites].
34

states. 197 Finally, the “status” of prostitute can influence other rights and capabilities,
almost universally negatively. 198
Despite the complexity of how countries impose and implement criminalization,
the overwhelming majority have a limited vision of regulatory options. They are limited
to complete criminalization, or variations on decriminalization. 199 Those that have
moved from decriminalization to active “legalization” through regulation mainly limit it
to mandating age limits, health requirements, and registration on sex workers. 200 A very
few countries have, following the erotic exceptionalist call, legalized prostitution without
enacting any other accompanying regulation. 201 More often, the absence of regulation
appears to be a regulatory vacuum than an intentional alignment with exceptionalism. 202
The lone exception is New Zealand, whose Occupational Health and Safety agency has
issued a comprehensive set of guidelines for the sex industry. 203 In sum, the regulatory
imagination seems extraordinarily constrained. What would an approach look like, that
197
In Turkey, the brothels are state-owned, and it is illegal to “shelter a person for prostitution.” [add
procon and country cite].
198
For instance, in Turkey sex workers cannot be married and their children are barred from occupying
high rank in the army or police, or marrying persons of such rank, although they can work in other areas of
government service. [add procon and country cites]. In the United States, prostitution can preclude an
alien from obtaining a visa. Immigration and Nationality Act, 8 U.S.C. 1001, et. seq., as amended (naming
as ineligible for a visa anyone who “is coming to the United States solely, principally, or incidentally to
engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa,
admission, or adjustment of status.”). In Nevada, prostitutes cannot [check on this: I think they are
restricted re where they can live, etc. Check India too].
199
[fix this] Prabha Kotiswaran points out how criminal, prohibitory laws have become fetishized by both
sides of the decriminalization debate. “While the normative status of sex work remains deeply contested,
abolitionists and sex work advocates alike display an unwavering faith in the power of criminal law; for
abolitionists, strictly enforced criminal laws can eliminate sex markets, whereas for sex work advocates,
decriminalization can empower sex workers.” Kotiswaran, supra note [x], at 579. In sum, contra
Foucault’s injunctions against juridical understandings of modern regulation, “Both camps thus view the
criminal law as having a unidirectional repressive effect on the sex industry.” Kotiswaran, supra note [x],
at 613. Elsewhere, Prabha Kotiswaran cautions “irrespective of our political positions on sex work, it is not
possible to sustain a corresponding preference for regulation without acknowledging that legal rules are
perpetually ensnared in complex rule networks and without studying the disparate effects of the most wellmeaning
legislative proposals at the most minute level of negotiations between sex workers and other
stakeholders in the sex industry.” Id. at 625. See also, Law, supra note [x], at [add pincite] (describing
suggested feminist reforms, including equal criminalization, criminalizing pimping, [add others]).
200
Compare Austria (requiring prostitutes to register, undergo periodic health examinations, be 19 years old
or older, and pay taxes); Latvia (requiring monthly health check); Netherlands (prostitutes must be over 18
and clients must be over 16 and prostitutes must register and pay taxes); Singapore (requiring mandatory
health checks, that prostitutes be 16 years or older, and confine their work to designated districts);
Switzerland (requiring prostitutes register with city authorities and health authorities and get regular health
checks). Other countries impose far more intrusive requirements and restrictions. In Turkey and Greece,
health checks can be as often as twice a week and in Turkey workers must carry an identity card indicating
the dates of his or her health checks. Costa Rica has minimal requirements. Prostitutes “must be over 18
years old and carry a health card showing how recently they had a medical check-up.” [find some
interesting variations on these].
201
See, e.g., [fill in Brazil code and regulation].
202
Some countries do not address or define prostitution at all, leaving its status unclear. This is the case in
long-standing nations such as Bulgaria, Spain, and Indonesia, as well as newer ones. In Kyrgyzstan, for
instance, prostitution is not a crime but its exact legal status is unclear. [we’ll need the procon and
eventually the country citations for these].
203
A GUIDE TO OCCUPATIONAL HEALTH AND SAFETY IN THE NEW ZEALAND SEX INDUSTRY [add citation].
35

took sex seriously as work, while simultaneously confronting the real and high
vulnerability its workers experience?
A. Markets for Sex
Section II argued that assimilationists’ insistence that sex work be regulated like “any
other labor” ignores the diversity of workplaces. This section makes an additional point.
In the strong form version the homogeneity of labor claim insists and in the weak form
assumes that sexual labor is no different from other, non-sexual work. But, as this next
part shows, sex workplaces are not like most workplaces. Rather, they are distinct in
ways that have regulatory significance.
Sex workers, typically women or trans, cater to a customer base that is
overwhelmingly male. 204205 Sex work is not alone in these ratios, but it can engender
distinct dynamics that pose real risk to the workers. For instance dancers frequently work
for multiple customers simultaneously, either in clubs or for parties—bachelor, fraternity,
work, etc.—at outcall locations. 206 These customers often patronize them in all-male
groups, seeking and expecting homosocial bonding through drinking and verbal and/or
physical sexual interaction with the dancer(s). As several sociological studies have
found, participants in these spaces may experiment with and negotiate social norms and
expectations of masculinity that differ from and would be sanctioned and deemed
unacceptable in other social contexts. 207 [see if you can find anything on not unlike
“mobs” that turn on one outsider and lots of insiders?] Customers’ significant alcohol
consumption can further loosen social inhibitions and lubricate behavior that puts
workers at risk of both verbal abuse and violence. 208 Heightening the risk to workers, in
clubs not only are the customers often intoxicated but dancers’ “labor” may entail
“hustling” drinks from customers, which the dancers are then expected to drink. 209
Unlike other workers, some sex professionals are expected to labor in a state in which
their own judgment is definitionally impaired. 210211212 This particular combination of
204 “an overwhelmingly female work force that services an overwhelmingly male clientele. (Male
prostitutes also work for predominantly male customers.)” Chancer 151; [craft footnote on gender ratios
and dynamics; where can we find this?]
205 Trans.
206 [some men, often regulars, patronize on their own; start by looking at Siobhan Brooks’ book]
207 [find quote that the behavior is risky to the dancers.]
208 The service is also contingent on the customer’s own performance and body. Many men anticipate and
expect erections and orgasm from their paid sexual encounters. Not all sex work requires this; specialized
and fetish markets, for instance may not. Other work also relies on bodily exertions, innate talents, or
developed skills from customers. Personal trainers, sports coaches, and x each rely on some type of
physical exertion and talent or skills from their client. Still, sexual expectations can create a different and
the stress it can induce on the customer. This can be a prompt for violence, as it undoubtedly is not among
trainees or athletes taking lessons who feel they are not performing to the social or trainer’s expectations.
209 [add citation]
210 In contrast, most workers do not work in an intoxicated state, and indeed, doing so would be grounds for
termination./As an initial matter, in most workplaces, workers are not permitted to drink alcohol. In fact,
drinking on the job would be grounds for termination from many jobs (although there are some curious
exemptions: many professionals may drink or are expected to drink when entertaining clients). This rule
extends to those who work in market sectors that serve alcohol, including restaurant, casino, and bars
[check this]./ Even workers who serve alcohol, i.e., food servers, bartenders, liquor salespeople, and casino
workers, typically have restrictions or limits imposed on how much and when they can drink themselves.
36

gender ratios, homosociality, and alcohol consumption has heightened hazards for
dancers in particular and also other sex professionals who work in similar contexts.
A second distinctive characteristic of the work is the dangerous blurring of when sex
professionals are “on” or “off” duty. 213 In sex work, part of what is being “sold” is a
fantasy of interpersonal connection. 214 Customers purchase vastly differing fantasies, but
overwhelmingly the scenario entails erotic attraction and personal interest in them by the
worker. 215 Good sex workers deliver the fantasies their customers want. It should not be
surprising that some customers confuse the fantasy with reality and attempt to pursue the
relationship beyond the commodified contract. 216 (This happens to other service workers
as well, who may be stalked or harassed by clients or customers, but the risk is higher in
sex work, given that the fantasy is embedded in an actual sexual relationship and interest,
feigned or not. 217 ) One regular customer at a dance club in New York, who often
volunteers to escort dancers to the subway or to hail a cab after their shifts, observed,
“It’s leaving the club that’s dangerous.” 218 Heightening the risk is the fact that some
employers appear to purposely blur lines between work/off-work. They may demand
sexual favors, or “entertainment,” for themselves or for friends, as a condition of
employment or receiving favorable treatment, such as good shifts or referrals to clients. 219
In contrast, factory workers typically are not asked to make widgets for the boss after
hours. Both of these dynamics are exacerbated by the attribution to sex professionals of
an identity as always available and willing, or, alternatively, as a less valuable human
being because she has commodified her sexuality. Both beliefs can lead to threatening
behavior towards workers, including stalking, harassing, even assault and murder. 220
211 Meth case here?
212 New Zealand on prostitutes: It is strongly recommended that sex workers (as is the case with any
other workers) do not use alcohol on the job, as this may impair judgment
and could result in sex workers making decisions that may affect the
health and safety of themselves and clients.
213 “Even as the wage contract establishes the workers as subject to the boss’s command in the employment
sphere, it simultaneously constitutes that sphere as a limited sphere. The boss has no right of direct
command outside it.” Fraser 176-77
214 As Nancy Fraser says, “what is sold is a male fantasy of ‘male sex-right,’ one that implies its
precariousness in actuality. Far from acquiring the right of command over the prostitute, the john gets only
the staged representation of such command. A staged representation of command, however, involves a
performative contradiction. The fantasy of mastery that is sold through prostitution is undermined even as
it is enacted.” Fraser, supra note [x], at 179.
215 But see [domination fantasies.]
216
217 Add brooks footnote
218 BROOKS, supra note [x], at 96.
219 Good shifts for dancers; outcall dispatchers for dancers and prostitutes. Sex is also expected off the job.
For instance, dancers in Minneapolis claimed their supervisors demanded sexual favors in exchange for
employment related requests such as time off. Fischer, supra note [x]. Sanchez, supra note 21, at 567
(reporting that men who serve as agents for exotic dancers frequently insist upon sex as a condition for a
referral); [add others]. One particular strong critique characterizes it as “a continuous course of
circumstances beginning with work and ending with injury.” [add citation].
220 Maticka-Tyndale at 96. Law professors also have blurred on-site/off-site identities. [Elaborate]
37

While many customers get and respect the boundaries between “on” and “off” work, the
nature of the work lends itself to confusion, thereby heightening risk. 221
Similarly, the line between re-negotiating terms and harassment or assault likewise
can be blurry. A dancer who is asked to perform a sexual act on a client may prefer not
to do so, be offended, or even feel threatened or coerced. Another dancer, or the same
dancer in different circumstances, might be open to the request, depending on the price
point, client, or context. The same is true for a prostitute who has agreed in advance to a
certain sexual act but who may or may not be open to requests to expand the menu.
While workers in non-sexual contexts might characterize the request for additional work
or more work or different work as unpleasant, exploitative, and/or coercive, law and
society do not typically perceive such requests as criminal behavior the way that
violations of sexual contracts can easily cross into sexual assault. 222
A third meaningful distinction stems from the fact that sexual labor entails a social
stigma that is almost unique. [add quote that links up to the isolation point that comes
next] The stigma results in significant social isolation as it interferes in other social
relationships with friends and family and, importantly, with other workers. For instance,
dancers trying to unionize have found their organizing efforts rejected by several
unions. 223 In addition, while other workers who labor in stressful or high-risk jobs can
find solace from family, friends, and community, many sex professionals hide their work
from those closest to them, resulting in profound social isolation. 224 Some scholars also
attribute the isolation to the extreme control that employers exert over sex workers which
“leads to the erosion of other relationships and thwarts personal autonomy.” 225226227 In
221 “Even as the wage contract establishes the workers as subject to the boss’s command in the employment
sphere, it simultaneously constitutes that sphere as a limited sphere. The boss has no right of direct
command outside it.” Fraser 176-77
222 Two hypotheticals may suffice. Imagine a law professor/yoga instructor whose student requests
additional tutoring outside of class. The professor may or may not feel that the request is appropriate. He
may or may not comply with the request. If he does comply, he may or may not charge additional fees, or
negotiate a different deal. Alternatively, imagine a mine worker. The supervisor requests that the miner
work late, or perhaps go deeper into the mine than agreed to. We can imagine that union rules might
determine the outcome of the request, assuming those rules are adhered to. Alternatively, we can imagine
the miner sticking to the agreed upon deal, or doing the additional, different work for more money or
overtime. In both instances, the worker might feel the request was inappropriate and ask that going forward
the agreed to contract will govern the interaction. The interaction would need to be an extreme one,
though, to become criminal in nature. (Unless the union contract was being violated, which is itself a
reason some employees strongly prefer a union shop. Or don’t.)
223
224 “[B]ecause of the stigmatized nature of their work, many dancers cannot tell their families or friends
about what they do for a living.” Chun, supra note [x], at 233. (can’t go home to families because families
are implicated, if coerced? [(or, same for other forms of labor; honor piece? Carl’s china example???)]
225 See also In her essay on exotic dancers, Sarah Chun finds they are “vulnerable to exploitation by the
clubs that employ them because they lack the usual support networks that workers in other industries rely
on for advice and encouragement.” Chun, supra note [x], at 233(footnote omitted); see also
McGinley, supra note [x], at 83 (footnote omitted) (“Even though legalized prostitution is
accepted and even condoned by residents because the brothels are good for the local
economy, the prostitutes are stigmatized and prostitution is hidden.”).
226 Baldwin, supra note [x], at 197 (footnote omitted).
38

fact, anti-prostitution activist and scholar Margaret Baldwin contends that the isolation of
women who work in the sex industry is not unlike that of battered women. 228 Baldwin
also speculates that “[p]rostitution and stripping also require women to create an illusion
of personal interest in the customer, a dynamic that in and of itself hedges the difference
between work and personal life.” 229 Importantly, the stigma runs both ways, to also
afflict customers, who are largely unwilling to admit they consume commodified sexual
services. 230 Unlike those who consume fossil fuels produced by coal miners, “[m]any
people watch pornography, but few are willing to write to their assemblyperson about
it.” 231
Of course some contend this stigma is a product of the criminalization of sexual
labor. Stigma is associated with most illegal activities (and many legal ones associated
with lower classes) and can be exacerbated by gender. 232 Yet other criminalized
activities do not incur the intensity of the stigma associated with sex work. Some lawbreakers,
including drug dealers and even, ironically, pimps, enjoy cultural
romanticization. In contrast, the stigma associated with commercial sex appears to stem
from deep-seated biases, discomforts, and ambivalences about sex, which, while
culturally specific, are almost universal in their attribution of differential meaning to men
and women and particularly to prostitutes. 233
Finally, while autonomy is a concern for all workers, sex work puts a distinct spin on
it. 234 Feminists have fought long and hard for consent to be the determining principle in
the legal governance of sex. 235 These liberal iterations of sexual agency and autonomy
that characterize our current legal and moral moment mandate that a person can change
their mind and withdraw consent at anytime, including during a sexual encounter. 236 In
keeping with this autonomy premium, sex professionals insist they should be able to
refuse their services to any customer for any reason and change their mind and withdraw
consent at any time while a sexual service is being provided. 237 Importantly, they include
among these reasons racial and gender preferences and biases. Sex workers may, and do,
restrict their clientele based not only on a potential customer’s gender (which should not
surprise us), 238 but race as well. 239 Disability proves to be is a fascinating category of its
227
Indeed, Some abolitionists oppose the “labor” rubric do so because of the ill effects of sex work on
participants, which they characterize as akin to post-traumatic stress disorder. Others would say it’s the
nature of the work/the subordinating circumstances.
228
[add cite]
229
Baldwin, supra note [x], at 198 (footnote omitted).
230
[comics; fred cherry]
231
Rutman, supra note [x], at 558 (footnote omitted).
232
Martha Nussbaum offers an interesting contrast with the stigma she associates with domestic workers.
[contrast with Nussbaum on stigma]
233
[add footnote]
234
[check with marion re germinal pieces on worker autonomy]
235
Consent governs not only rape law, but also sexual harassment [am I missing other sexual regimes?]
236
237 [add quotes].
238 Some sex workers do not discriminate on the basis of the sex or gender of customers, regardless of their
own orientation. Others, though, do. Many sex professionals who identify as straight do not provide
sexual services to women, and those who identify as lesbian may limit their clientele to women.
239 [footnote re these]. See also age?
39

own in sexual commerce. 240 Thus, sex professionals largely embrace and insist on the
same norms of personal choice and preference that govern non-commodified intimacy.
But this puts sex professionals in direct conflict with anti-discrimination and consumer
protection law.
The 1964 Civil Rights Act prohibits discrimination [insert language] against
consumers. Similarly, [add other protections from consumer law]. The Americans with
Disabilities Act requires “reasonable accommodations” and prohibits discrimination on
the basis of the disability. Finally, the ADEA [fill in relevant portion.] This means that
workers in the service industry cannot refuse to serve customers based on race/gender
and other suspect characteristics. Indeed, doing so triggers legal liability for their
employer. Sole proprietors face the same restrictions. [is that right?] In addition, when
it comes to service workers’ completing a contract or transaction, while specific
performance is off-limits as a legal remedy, there are other constraints on workers’ rights
to refuse service. 241 Declining to serve a customer could be grounds for termination or
other sanctions. Thus the sexual nature of sex work may be in tension with some of the
standard anti-discrimination and other egalitarian measures that protect customers and
consumers of paid services.
Thus, while it may be tempting to “view[] them through the same labor lens as
other workers,” sex workplaces are not like “most” workplaces/sex work is not like
“most” work. 242 Contrary to the essentialist assimilationist claim, most workplaces are
not characterized by the particularities of sex work: the culture of alcohol, drinking, and
drugs; the homosocial “mob” context; the blurred line between legitimate re-negotiations
and criminal assaults; a similarly blurred line between on-site/off-site (that is on-duty/offduty)
identities; and employer expectations of “free” services that all can combine to
create distinct risks and hazards. Nor does most work entail the stigma and resulting
isolation or threaten entrenched liberal norms of autonomy in the same way. The
assimilationist claim obscures the distinctive characteristics of much sexual labor and the
distinct regulatory challenges it poses. The remainder of this Section explores a potential
regulatory structure that would try to take account of and ameliorate these risks.
B. [insert heading]
On the one hand, sex professionals share many basic working conditions with nonsexual
workers, e.g., exploitation by management, weak rights, dangerous and unsanitary
working conditions, as well as other gender-based harms, e.g., wearing stiletto heels and
sexual harassment. Many existing workplace regulations would also apply to sex
workplaces. For example, exit signs and fire extinguishers are mandatory in brothels and
dance clubs as they are in factories and restaurants. As other commercial sexual
establishments emerge, they would be subject to these same regulations. Other
requirements will be relatively easy to enforce, for instance that stages, poles, sex toys,
beds, i.e., “equipment,” be safe and meet specified standards of hygiene. 243 However
240 [add surrogate material]
241 For instance, barring extenuating circumstances, taxi drivers typically cannot just drop a customer off
anywhere, and restaurants must serve their patrons. [think about this one]
242 Moukalif 254
243 [Elaborate how OSHA would apply; maybe lift from condom stuff re porn?]
40

other types of risks and hazards, such as the violence, harassment, and discrimination
described in Section II.A and III.A, tend to be specific to or intensified by sex work.
Ameliorating and managing these would require a different regulatory structure.]
[Readers: I have an extended summary of new regulation from New Zealand and am
contemplating whether to insert it here]
As described in Sections II.A and III.A, violence poses one of the biggest risks to
sex professionals’ well-being. But violence threatens some sex workers more than
others. Isolation poses the biggest threat. Elizabeth Bernstein finds that “while it is true
that streetwalkers are at exceptionally high risk of physical violence, by their own
accounts, the chief danger exists when they’re alone with a john—in a car or hotel
room—not standing on the street.” 244 Audrey Macklin’s study of lap-dancing in Canada
observes the same dynamics at work: “It requires little imagination to recognize that the
risk of harm to performers in the form of non-consensual contact could only be
exacerbated in circumstances where the patron and the performer are secluded from
observation.” 245 The empirical evidence bears out these observations: [double-check the
empirics on brothel, in-home, and street prostitution violence] Hence, although some
municipal codes associate public sexual acts with “indecency,” from the workers’
perspective, the more “private” the sexual activity, the greater the risk. 246 In this view,
the degree of risk correlates not with the type of activity but with the isolation of the
interaction.
We might map this sexual geography as follows. Organizational forms in which
workers have no personal contact with clients, and importantly no personal contact with
employers or third party intermediaries/managers, have the least risk. This would
include sex professionals who provide phone sex or new media sexual services, as long
as they remain anonymous to customers and have limited interactions with their
employers or intermediaries. 247 The latter caveat is important as employers can pose as a
great a threat as do customers. 248 In sum, in sexual geographies with no physical or face
to face interactions, the risk of violence is minimal. 249 Activities within this institutional
form ought not require significant regulation to protect workers, other than clear rules and
protocols to preserve anonymity. 250
244
She continues, “In this regard, the pimps are of little or no use . . .” Bernstein, supra note [x], at 107
(footnote omitted).
245
Macklin continues, “The curtain shielding what happens on the other side of it from the public and,
therefore, judicial scrutiny is precisely what heightens the performer’s vulnerability; the parallels between
the regulation of public and private space in these cases and historic patterns of judicial treatment of
domestic violence are patent.” Macklin, supra note [x].
246
See, e.g., [add cites to municipal codes from a couple of prominent jurisdictions: check NY, LA, SF,
Chicago, etc. Just 3 will do.]
247
Phone sex from labor/safety perspective probably unobjectionable (kids at home; safety; multi-tasking;
available to all regardless of age, looks, etc)
Authenticity/performativity: doing laundry or on the treadmill (heavy breathing)
248
See supra
249
But see [fill in citation that prsottitutes/sex workers are at higher risk of violence from partners, etc]
250 Phone lines, etc.
41

In contrast to this institutional form, face-to-face sexual services that occur in
commercial establishments can pose a greater risk to workers. Brothels typically have
private rooms in which the prostitutes provide services to clients; similarly, some dance
clubs offer separate rooms or lounges for customers who want private lap-dances or
massages. It is during these interactions, while isolated from others, that clients are most
likely to assault or threaten workers. [find a good quote] In addition, as described above,
many assaults and threats against sex professionals occur when they are leaving the
establishment, i.e., in parking lots, on the street, etc.
Although commercial establishments have a heightened risk of violence, these
institutions are arguably the easiest to regulate for worker safety. Mandatory protections
in sexual commercial establishments might include bodyguards, panic buttons, a security
service, escorts out of the workplace, and surveillance if appropriate. 251 [fill in other
relevant guidelines from New Zealand?] All of the regulations of this institutional form
rest on two principles. The first is to ameliorate the risk correlated with isolation through
surveillance and/or empowering the worker to quickly call on others. The second is to
make the operator, not the worker, responsible for the risk reduction. As in other
workplaces compliance with these requirements would be a condition of licensing for
operators of these establishments. 252 “Scores” akin to restaurant sanitation ratings could
be publicly posted to alert workers and customers alike to the potential for conditions that
might compromise their safety.
It is the final institutional form that generates the greatest risk of violence. In this
sexual geography, workers physically interact with clients but outside of dedicated
commercial establishments. Unlike those who work in brothels or clubs, these sex
workers largely provide their sexual services in private homes, theirs or their clients’,
rented spaces such as hotel rooms, or on the street or other public places. 253 They might
work independently or for a third party intermediary, such as an escort service or [what is
the term for an agency that sends outcall dancers?]. The defining characteristic of this
sexual geography is its absence of an institutional infrastructure. Unlike brothel or club
workers, outcall, street, and home-based workers serve clients in unregulated private
contexts without any structural supports. These workers may serve multiple clients
simultaneously, but do so without co-workers, managers, or even other customers who
have a stake in the on-going stability of the enterprise, including the safety of its
workers. 254 The presence of other stakeholders can provide formal or informal security
for sex workers. In addition, in outcall or street work, unlike brothels and clubs, the law
cannot mandate a thick security apparatus—panic buttons, security guards or bouncers,
surveillance—because there is no stable worksite to regulate. Sex professionals working
out of their own home have greater control over their circumstances, but even they may
struggle to reduce risk. 255 If the worker is an independent contractor, working without a
251
Some brothels and clubs already include these safeguards. Workers recognize and discuss risk
management as they differentiate among worksites. See, e.g., BROOKS, supra note [x], at [pincite.] [Contra
the bodyguard concern, informal practices at brothels include “a madam’s stationing herself near a room if
she is concerned about the safety of a particular prostitute.” McGinley 105 fn omitted]
252
253
Duke LAX rented house.
254
Domestic worker literature.
255
Many high-end prostitutes would resist this regulation, contending that they rely on closely monitored
referral networks to carefully screen their clients and protect themselves. My point is that if they
42

manager or intermediary, then she must absorb the costs of security completely on her
own and cannot achieve the economies of scale that brothel and club operators can
achieve with security systems and guards. Independent sex professionals may also resist
revealing their profession to others and may resist the security apparatus that could
compromise their privacy. Hence, because of its lack of institutional infrastructure and
isolation, this sexual geography poses the greatest risk of violence and is the hardest to
regulate.
Recognizing these particular risks posed by outcall work, New Zealand has issued
specific guidelines and protocols that include panic buttons, cell phones, as well as
recommendations to carry flashlights in case of poor lighting. 256 [check other
recommendations re outcall workers] Another protocol might be check-in systems, in
which sex workers can confidentially document their schedule with the relevant customer
information. This could function akin to an answering service or we could anticipate
software companies creating applications that would store such information on the
internet. (Regulations might also mandate body guards for outcall workers and those
who work out of their own homes or other isolated venues, although this might make the
cost unaffordable to most customers.) Finally, hotels could target sex work, offering
rooms that provide security akin to brothels. For both third party intermediaries and sole
proprietors, adhering to regulations would be a condition of licensing.
In sum, when viewed on a continuum of sexual geographies, the more isolated the
work the more danger it presents to the worker. Virtual interactions and minimal
physical interactions with third party intermediaries are the safest as long as workers
preserve their anonymity. Commercial establishments, i.e., club dancing and brothel
prostitution, can pose significant risks but are the most susceptible to regulatory
interventions that can increase worker safety. Regulations can require operators to
provide a thick security apparatus as a condition of licensing. Finally, unlike brothels and
clubs, in informal sexual geographies without a stable infrastructure workers are at the
most risk. There is no stable worksite to regulate, i.e., require panic buttons, security,
surveillance, and the worker is isolated from others who might provide formal or
informal security. These workplaces will pose the greatest regulatory challenge, but New
Zealand’s protocols provide a starting point. No regulation will eliminate the risk of
violence of course; that is as impossible as it is in non-sexual workplaces. However, by
taking seriously the institutional forms violence takes in sexual workplaces, we can
certainly align sex work with the harm reduction approach found in other workplace
safety regulation.
Others have differentiated forms of sex work. 257 Yet, none of these differentiate
professional sex along its institutional or organizational form, or what I call its sexual
geography. The innovation of the sexual geography approach is that it replaces the
common sex work classifications with one based on institutional form and risk. Most
classifications of sex work tend/distinguish it according to legality or morality. In
miscalculate, there are no protections in place from client violence. In particular, those who work out of
their homes are vulnerable to stalking and harassing behavior.
256 From the health axis of risk management, the New Zealand guidelines also encourage outcall workers to
inspect the premises and [fill in]. See infra note [x] and accompanying text.
257 And sex workers themselves have finely tuned senses of internal differentiation. Dancers often distance
themselves from prostitutes[Strippers separate from].
43

contrast, this geographic approach to risk is counter-intuitive in at least two ways. First,
it defies the approach to sex work that classifies it along a continuum of proximity to
penetration. It also departs from approaches that categorize sex work according to its
legality. Hence, scholars, activists, and sex workers distinguish prostitution from the
legal forms of professional sex: dancing, phone sex, etc. 258 In contrast to both of these
categorization schemes, the sexual geography approach replaces a morality with a risk
analysis. In this sense it is also attuned to the internal structure of sex work. As Prabha
Kotiswaran notes, “Sex workers are highly internally differentiated according to their
mode of organization of sex work and their relationship to the institution of the
brothel.” 259 Her work emphasizes the spatial dimensions. 260 In sum, the sexual
geography approach blurs the lines between prostitution and other legal forms of sex
work in favor of a risk-based approach to regulation. 261
258
Even absent criminal law complications, there are vast differences among trades within the sex
work industry. Consider, for example, organized dancing in direct contrast to organized
prostitution. Exotic dancing is generally legal and is performed at a specific worksite (club) for a
set hourly duration. Exotic dancers who work at a club or specific worksite arguably have a single
employer—the club/site owner. Prostitution, however, is generally illegal, performed on a per
client basis, and not necessarily at a single location for a set duration. Prostitutes are arguably selfemployed.
Moukalif, supra note [x], at 255. [Adrienne: add others].
259 581. Prabha Kotiswaran identifies several axes of differentiation: wage (per shot); conditions of labor,
i.e., bonded labor, sharing income with brothel keeper, or independent; she also incorporates scale of the
institution as influencing the autonomy of worker. Kotiswaran, supra note [x], at [pincite]. Kotiswaran’s
approach also foregrounds the effects of regulation on both internal and external stakeholders. See also
Law, supra note [x] ([discuss Law’s brothel descriptions as institutions]).
260 “The brothel is an institution involving a particular configuration of the organization of labor, both
sexual and social, backed up by a set of living and working arrangements, practices, ideas, norms,
ideologies, and consciousness that are unique to the sex industry. These structural and cultural aspects of
brothel-based sex work are fundamentally shaped by the spatial concentration of brothels in a red-light
area. Unlike institutions such as the school, family, church, military, or prison that can be characterized as
public or private, the brothel operates at the crossroads of the market and the family, harboring both sex
workers and brothel keepers as well as their families. This permeates every aspect of institutional life
within the brothel. For example, brothel rents reflect commercial levels, but the living conditions of the
property do not approximate standards of commercial property since the brothel is the living space of its
sex workers and brothel keepers, who are its laboring and entrepreneurial classes, respectively. Similarly,
unlike the family where the wife socially reproduces her husband, in a brothel the sexual labor of several
women, managed by the entrepreneurial labor of a brothel keeper (often a woman herself), socially
reproduces a collectivity of male customers. At the same time, the brothel's economy, like that of the
family, includes the labor invested by the brothel keeper in reproducing the sex workers as laborers as well
as the reproductive labor that both sex workers and brothel keepers invest in their families who reside with
them in the brothel.” Kotiswaran, supra note [x], at 585-86 (footnote omitted).
261 “The commercial sex industry is a very broad field. Even within the realm of prostitution, the specific
issues, and thus the most effective methods of organizing, vary by the type of sex work. Consider the
differences that arise due to location choice alone. While street-and indoor-based prostitutes share many
issues in common, practical organizing tactics must vary between the groups. An indoor-based prostitute
may very well benefit from the use of an occupational-cooperative structure. But such a model is not
necessarily realistic for the street-based prostitute who may benefit more from a structure like that of a
worker center. Thus, even though both groups of workers may be looking toward the same policy and
advocacy goals, the structures that best meet those goals necessarily vary.” Moukalif 269 (footnotes
omitted). See also “The common sense understanding of prostitution therefore seems to center on a general
44

Let me anticipate some objections. [Readers: the paper next rehearses autonomy,
pragmatic, and intrinsic nature of the violence objections]
In sum, the assimilationist claim obscures the diversity of sex work. It does not
take account of the very real differences in commodified sex and how those translate into
worker risk. By the same token, erotic exceptionalists ignore the very real hazards posed
by sex work, insisting that the sexual nature of the labor should shield it from regulation.
I have strong sympathy with both of these views. Yet, neither does very much to
accomplish my goals of reducing the very real risks of sex work. To combat and manage
this risk, this section has proposed a sexual geography approach parses sex work
according to its institutional form and how that affects worker risk. Mapping sex work in
this way provides a pragmatic approach to harm reduction. It should also appeal to
feminists, on both sides of the debate, in that it suspends the typical classifications
grounded in morality of continuum of heterosexual penetration in favor of assessment of
danger. 262
C. Discrimination
The final major workplace challenge is discrimination. As described in Section II,
[fill in their complaints.] Can harassment and discrimination be regulated and
ameliorated in sexual labor? Yes and no. Let me elaborate.
1. Sexual Harassment
As discussed earlier, sexual harassment is prevalent in sexual markets, and sex
workers are particularly vulnerable to it. 263 As in other workplaces, unwanted and
unwelcome sexual propositions and behavior comprise impermissible harassment. This is
relatively straightforward to implement in cases of quid pro quo harassment, in which
employers and intermediaries demand sex in exchange for employment or favorable
terms. In fact, in sexual workplaces quid pro quo rules should be rigorously enforced
precisely because of the prevalence of the practice and the particular vulnerability of sex
workers to it. This is a prime area in which law can play a crucial role in shifting cultural
norms and combating operators’ views of sex workers as their own personal sex slaves.
In sum, there is nothing about the sexual nature of the labor that should subject workers
to quid pro quo demands. In contrast, hostile environment doctrine is not such a neat fit
with professional sex work.
notion of exchange of money for sexual services or gratification. Under this perspective of prostitution,
nude dancing for the sexual gratification of club patrons clearly is a form of prostitution despite the fact
that it does not explicitly fit into the Minnesota statutory definition of prostitution because it does not by
definition require sexual contact or penetration.” Fischer, supra note [x], at n.35; garb (contending antiprostitution
statutes could be drafted to regulate porn films). McGinley article helps with blurring
lines of prostitution, dancing, etc. and going to my geography focus instead
262 [find cite: Tyra Banks show on hierarchy of sex workers: porn; prostitutes; strippers; etc, along an
implied continuum of heterosexual penetration].
263 See supra notes [x] and accompanying text.
45

Some scholars contend that hostile environment doctrine should apply to sex
workplaces, although the “welcomeness” standard should be adjusted to take account of
the sexual nature of the work. 264 Ann McGinley is the strongest proponent of this
view. 265266 She argues that because the work is sexual, [sexual conduct and advances in
and of themselves cannot constitute a hostile environment.] “Behavior that creates a
cause of action for sexual harassment in a non-sexualized workplace may actually
constitute agreed-upon terms or conditions of the employment of workers in sexualized
workplaces.” 267 /“There can be no alteration of a term or condition of employment if
acquiescing to certain behavior is at term or condition of the job.” Hence, the
assessment of sexual harassment should rest on workplace expectations. 268 “Because the
essence of the business and the prostitutes’ role in the business is selling sexual acts to
customers, sexual harassment will depend in large part on the negotiations and behavior
agreed upon by the prostitute and the john.” 269 For both dancers and prostitutes she
proposes that sexual harassment liability should turn on whether the complained of
behavior is a term or condition of the job. 270 Staring, comments on body parts, sexual
propositions, and general lewd comments all could be terms and conditions of a sex
workplace. 271 Indeed, “[a]n exotic dancer who strips in a gentlemen’s club should
reasonably expect more customer sexual behavior than the blackjack dealer or the
cocktail waitress.” Still, “aggressive sexual behavior such as derogatory name-calling,
clearly unwanted touching, stalking, or physical assault may alter those terms or
conditions of the dancer’s employment and may create a legally cognizable hostile work
environment.” 272 In these instances, employers have an obligation to implement
procedures and policies to protect workers. 273274
264 See Law: Some observers argue that women who work at Hooters, or in other contexts in which sexual
titillation is a significant part (or all) of the service offered, assume the risk of sexual harassment, and that
employers cannot reasonably be held responsible when it occurs. 416 Others assert that even when a woman
is hired to offer some forms of sexual observation, conversation, or physical contact, the woman should
nonetheless be free to determine what is welcomed, and that employers should be responsible for customer
behavior that is unwelcome, beyond the scope of employment and reasonably known to the employer.;
Even if sexual harassment law applies to erotic dancers, nude dancers, and commercial sex workers as a
matter of theory and doctrine, women asserting such claims would face formidable practical difficulties of
proof, both in showing that [*597] customer behavior was unwelcome and that the employer had
reasonable opportunity to know and prevent it. 419 ]
265 She contends that, “[w]hile the context of sexualized work environments is significantly different from
non-sexualized work environments, Title VII should account for this context in determining whether a
hostile work environment exists, rather than rejecting a cause of action altogether.” McGinley 92
266 (McGinley article asks three questions: does T7 cover women working in sexualized environments, and
if so, which women to cover? Finally, what should the standard be?); McGinley (“whether Title VII should
recognize and redress sexual harassment suffered by employees at the hands of customers where the work
is sexual in nature and/or the environment is highly sexualized.”)
267 McGinley 68
268 She makes this argument for both sex workers and others.
269 McGinley, supra note [x], at 86.
270 “There can be no alteration of a term or condition of employment if acquiescing to certain behavior is at
term or condition of the job.” McGinley 99; McGinley’s 3 questions to pose re harassment on p. 102
271 See also “For example, a term or condition of employment for exotic dancers in gentlemen’s clubs may
require tolerating hooting or staring from the audience.” 102.
272 104
273 “an employer’s knowledge of a condition that poses a threat of harm to an employee may
be viewed as deliberate or intentional when the employer permits the condition to continue.”
46

When confronting harassment by customers, the fact finder should therefore consider
the three-way relationship between the supervisor, the customer, and the worker. If
the supervisor punishes or otherwise discriminates against women who refuse to
accept harassing customer behavior or if there is an expectation that the employee not
complain or respond negatively to the customer’s harassment, the jury should
consider this fact as evidence that the woman did not welcome the behavior, even
though she may have acquiesced to it. 275
In the end, “[b]ehavior that creates a cause of action for sexual harassment in a nonsexualized
workplace may actually constitute agreed-upon terms or conditions of the
employment of workers in sexualized workplaces,” 276 but employers still have an
obligation to police behavior that is not an expected part of the job.
McGinley’s approach differs starkly from that of other commentators’. For instance,
some have contended that, by its nature, sex work should be exempt from sexual
harassment liability. In this view, exotic dancers, prostitutes, and other sex workers have
“assumed the risk” of harassment, which should excuse employers from liability. 277 [add
quote]. 278 Alternatively, Kelly Cahill characterizes their comparatively generous tips as
“combat pay.” 279 McGinley opposes the assumption of risk and combat pay defenses.
She charges that exempting these workplaces from liability for sexual harassment
constitutes a windfall for employers: “advocacy of the assumption of risk defense fails to
recognize that employers whose businesses rely on the display of masculine practices
consciously create and benefit from an environment in which harassment is likely to
occur.” 280 Because sexual commercial establishments rely on the fantasy that “the dancer
is sexually and personally interested in the customer” to maintain their profits, “[t]o
maintain this fantasy, the club walks a fine line between permitting the customers to
believe that the exotic dancers are completely available to the customers and protecting
the dancers from sexual harassment and criminal assault.” 281 The assumption of risk and
combat pay constructions “it place[] on women the responsibility of regulating the
sexualized aggression of heterosexual men without placing any responsibility on the
individual men, on the employer, or on society in general.” 282 Reinforcing this point,
274 Anna Nicole Smith: “consensual”; clubs might ban it though, or leave it up to the worker
275 McGinley, 99
276 McGinley 68
277 See, e.g., Joshua Burstein, Testing the Strength of Title VII Sexual Harassment Protection: Can It
Support a Hostile Work Environment Claim Brought by a Nude Dancer?, 24 N.Y.U. REV. L. & SOC.
CHANGE 271 (1998); Kelly Ann Cahill, Note, Hooters: Should There be an Assumption of Risk Defense to
Some Hostile Work Environment Sexual Harassment Claims?, 48 VAND. L. REV. 1107 (1995); Jeannie
Sclafani Ree, Redressing for Success: The Liability of Hooters Restaurant for Customer Harassment of
Waitresses, 20 HARV. WOMEN’S L.J. 163 (1997).
278 See also As Yuracko says, “it is unlikely that if a strip club was held liable for not preventing sexual
harassment of its strippers by customers it would be ordered to have its strippers wear clothes.”
279 [add the relevant quote].
280 McGinley, supra note [x], at 91.
281 78 (footnote omitted);] Mcginley 81; Emotional labor point: In fact, “[i]f they were
not prostitutes, may of htem state that they would like ot be social workers, nurses,
teachers, or day care professionals.” McGinley 85 fno
282 McGinley 91. [here?] See also Yuracko 229 (“Even if the law allows businesses to create jobs that
involve selling sex appeal, why is it that so often women alone are perceived to have that sex appeal?”).
47

from a “cost of accidents” perspective, the operator who “create[] the sexualized
environment is on notice that customers will likely harass her employees and has the
means to prevent and correct such harassment” 283 Finally, McGinley notes the class
discrimination lurking in the assumption of risk defense. The best economic option for
some working-class women may be to work in “sexy” work environments, and
assumption of risk doctrine imposes a penalty on them for trying to find economic
security. 284285
2. Disparate Impact
That leaves disparate impact discrimination claims. [fill in] As described above,
racial discrimination against sex workers is present not just in hiring but terms and
conditions of employment such as assignments of shifts, lucrative assignments such as to
private lounges, and referrals to desirable customers. In addition, there is the expectation
that racial or ethnic minorities will perform racial fantasies. In the context of exotic
dancing, Siobhan Brooks notes [add quote]. 286 Brooks and others contend this
discrimination violates Title VII and should be enjoined by courts. Can someone
legitimately prefer one sex worker to another based on appearance? If so, what role does
race play? This Section attempts to answer this vexed question.
On its face, the argument to apply anti-discrimination norms to sex work is an
attractive one. The assimilationist claim is very strong. As one leading sex theorist
argued, lawyers no different than prostitutes or club dancers in that “Law firms aren’t
allowed to hire only white lawyers on the ground that most of their clients are white and
would prefer to work with lawyers of the same race, and I doubt that courts would allow
that excuse if any other racial or ethnic group were involved. So why not apply the same
reasoning to sex and sexual services?” 287 Brooks, who led the first Title VII suit brought
by dancers, concurs: [add quote]. In this view, the assimilationist claim is very strong.
Sex work is no different from other service jobs in which anti-discrimination norms bar
283 McGinley 67
284 McGinley 90
285 McGinley’s approach also challenges the hardline drawn by Kimberly Yuracko, who also takes
sexual contexts into account in assigning workplace liability. In assessing disparate treatment doctrine,
Yuracko draws a clear line dividing workplaces that provide sexual gratification from those that provide
only sexual titillation. In contrast, McGinley rejects Yuracko’s “plus-sex” binary/dichotomy in favor of
more nuanced consideration of how sex and emotional labor are at work, finding more of a continuum.
The common thread among these jobs is that either the job or the environment in which the job is
performed is sexual. All of these women either trade on their sexuality or sell sex outright at
work. But sexuality is not the only job requirement. Each job has other requirements, some
gendered and some not. Moreover, in varying degrees, [add] require the worker to compromise
her own emotional independence and to engage in emotional labor, managing the emotions of the
customers to elicit a certain response. While differing in intensity and degree of managerial
supervision, this emotional labor resembles the behavior expected of flight attendants, fast food
workers, insurance salesmen, and paralegals . . . . Requiring emotional labor in service jobs blurs
the line between jobs in sexualized industries and those in non-sexualized industries.
McGinley, supra note [x], at 89.
286 Russell Robinson has made similar observations about acting. notes this in expectations of colored
actors to perform in ways that satisfy stereotypes @ 18) 286
287 [where is this quote from?] 229 (footnote omitted).
48

discriminatory preferences, however strong, by both employers and customers.
Importantly, one of the big innovations of discrimination law is that employers cannot
use customers’ “taste for discrimination” as a rationale to discriminate against employees.
However, what should be made of the assimilationist claim in regard to
discrimination law”? Three aspects of sex work should give us pause about the
assimilationist claim. Taken together, these three suggest that perhaps there should be an
erotic exemption/an exemption for erotic work.
[Readers: I am still thinking this through and will share my thoughts on it during the
workshop]
IV. POLITICAL FEASIBILITY, OR, IMAGINING SOSHA
This Section turns its attention to the question lurking behind this entire paper: the
political feasibility of regulating professional sex in the ways suggested in Section III.
Rather than making sweeping arguments about the pragmatics of cognizing sex work, it
breaks the feasibility calculus concerns down into their component parts—
administrability, political will, substitution effects, and, briefly, concerns over
endowments. It will address each of these in turn, using two “case studies,” pornography
and mining.
A. Administrability
Although this paper has not included pornography in its discussion and analysis, a
recent conflict raises some of the potential challenges posed by regulating sex work.
Earlier this spring the city of Los Angeles began to contemplate whether policing
condom usage in pornography should be a municipal role. 288 After the private clinic that
had monitored HIV and other health status for the pornography industry “abruptly shut its
doors” in December of 2010, city lawmakers voted to draft an ordinance that would
require condoms in adult films made in the city. 289 Los Angeles’s plan would end the
pornography industry’s long-standing self-regulation: “The city law would be the first to
impose safety standards specifically on the pornographic film industry, which has largely
been allowed to police itself.” 290 After several adult-film actresses contracted HIV in the
1990s, suing production companies, the industry implemented a mandatory testing
regime, creating a not-for-profit clinic that established a health status data base, funded
by the industry. 291 The adult film industry has long touted the efficacy of its self
288 Ian Lovett, Condom Requirement Sought for Sex-Film Sets, N.Y. Times, Feb. 10, 2011, at A18. The
proposed ordinance would implement mandatory condom usage as a condition of issuing film permits. [fill
in re ordinance]
289 One city councilman said bluntly, “We can’t keep our heads in the sand any longer. These people
should be using condoms. Period.” Lovett, Condom Requirements Sought for Sex-Film Sets, supra note
[x], at A18. [add check susan’s email re this]
290 Id..
291 The industry created Adult Industry Medical Healthcare Foundation after several actresses contracted
HIV in the 1990s and sued production companies. Structured as a non-profit clinic, it was financed by
contributions from production companies [conflict of interest???], and performers who had not been test4ed
49

egulation, citing only five instances of HIV among performers since 2004. 292 Yet critics
contend that “Testing just acts as a fig leaf for producers, who suggest that it is a
reasonable substitute for condoms, which it is not.” 293 They note that, apart from HIV,
sexually transmitted diseases are diagnosed in a quarter of all performers each year and
are seven times higher than in general population. 294 Observers predict that the Los
Angeles plan will spark a regulatory stand-off, as the city lacks jurisdiction over public
health, while county officials claim they lack the resources to effectively monitor condom
usage. 295 Meanwhile, the California division of OSHA has had its own conflicts with the
industry. Since 2004 the state’s agency “has maintained that existing state workplace
safety laws require condoms and other protections for performers in the pornographic
film industry.” 296 Yet, here, as elsewhere, OSHA is plagued with little oversight and
enforcement power. 297 Not surprisingly, faced with this new regulatory regime, the film
industry is threatening to leave the state for more “friendly” jurisdictions. As for the
clinic, which “abruptly” closed after a performer tested positive for HIV, it has re-opened
as a for-profit clinic, now under the auspices of the California Medical Association.
However, the incident raises the broader question of “who, if anyone, should be ensuring
their safety.” 298
This case study suggests the potential challenges of monitoring and enforcing markets
for professional sex. If all sex work were to be legalized, some laws would apply to it as
they would to any other form of labor, e.g., requirements for exit signs and asbestos
levels. 299 But regulating the substance of sex markets and how they operate is a different
matter. The California condom controversy suggests several things about the
administrability of a regulatory regime for other professional sexual labor.
First is jurisdiction. Currently, the regulation of work is a complex mix of federal,
state, and local law. In addition, some industries self-regulate. As described in Section
II, the availability of various bodies of federal law, including OSHA and Title VII, will
turn as an initial matter on whether sex workers are classified as employees and also the
size of the workplace. The federal regimes employ differing criteria, and it is not clear
that all sex professionals will qualify as employees under all tests. 300 Beyond this initial
litmus test, the experience with regulating condoms in the pornography industry suggests
other constraints. While the OSHAct’s general duty clause would cover many health and
safety issues, the agency’s own statements identified the obstacles in effectively
regulating the pornography industry. The agency simply lacked the resources to monitor
and remediate violations. It is unclear that other sex work would be different.
within the last 30 days were not supposed to be hired. Only 5 cases of HIV since 2004, when there was an
outbreak. Clashes with county health officials; now opened as for profit under oversight of California
Medical Association and some criticisms against county health department.
292
Id..
293
Michael Weinstein, President of AIDS Healthcare Foundation, quoted in New York Times. Id..
294
Id.
295
State health regulators have convened a committee, but not yet acted. Id.
296 Id.
297 OSHA issued only handful of fines for filming unprotected sex. Id.
298 Id.
299 There still will be the question of whether and when sex workers are “employees.”
300 See supra notes [x] and accompanying text.
50

Alternatively, sex work could be regulated primarily under state law. State
regulatory schemes take different forms. [fill in other ways for states to assert
regulation? State osha’s?] Another option are state-based licensing schemes. Licenses
[fill in definition] Requiring a license to perform sex work might be the least intrusive
form of state regulation and yet the most comprehensive. A license can be required of
commercial establishments and sole proprietors alike. Licensing can establish highly
specific standards of a variety of behaviors, conduct, and interactions. State-issued
licenses govern professions as diverse as lawyers, doctors, realtors, sale of liquor, hair
dressers, caterers, and interior decorators. Licensing takes different forms. In markets
involving the provision of services a standard component is to require some standardized
training and a proficiency test, such as the bar exam. We could envision that sex worker
training would include at the most basic level safe-sex practices, ensuring their own
safety, ethics, hygiene, and perhaps instruction in counseling. 301
Licensing may also have a secondary, collateral effect on sex work—legitimizing
it. As suggested earlier, some sex professionals urge that their work is akin to that of
professional therapists. Sex work is a profession with a high quotient of human need
fulfillment, and sex workers are the last stage in the delivery of that fulfillment. 302 “As
sex workers have themselves suggested, one goal would be for prostitution to become a
kind of sex therapy, professionalized and no longer stigmatized.” 303 These sentiments
envision the legalization of sex work not only legitimizing sex work, but actually
unmasking it for the high-status work it is. 304
Finally, the licensing option answers sex exceptionalists’ insistence that sex work
should be a litigation-free zone. 305 Contrary to the libertarian impulses, private contracts
are not exempt from scrutiny and regulation. 306 Currently, 23% of American workers
require licenses to do their jobs. More than 1,100 professions require licenses, including
florists, manicurists, shampoo specialists, interior designers, and of course, doctors and
lawyers. 307 It would seem quite odd that a state would require a license to wash hair or
arrange flowers, but that those engaged in sexual acts with the potential exchange of body
fluids, not to mention the risk of violence, should be exempt. In fact, requiring licenses
301 Ethics of therapists and social workers might be particularly useful in their emphasis on…/The ethical
component is an intriguing one. Other professions provide model ethical codes, including social workers
and therapists. Both of these professions enjoin their practitioners to follow three norms: the client, the
relationship, and self-care. The combination of the three can result in recommendations/mandates to limit
the number of hours/clients, [fill in others]. [work on this footnote].
302 [add the quote on the most successful prostitutes are those who can connect with their clients and their
needs]
303 Chancer, supra note [x], at 161. In fact, [Firefly and categories of sex worker that feature in science
fiction]. [compare sex surrogates]
*Companion: trained at a monastic institute; take applications from customers; they are high status, and
exotic, as exemplified by being cast as Indian (not black!); licensed
*hustler: had companion training but used it to become a con woman
*broken off from companion ship to open independent brothel; vulnerable and victimized but independent]
304 [compare sex surrogates; Susan Stiritz]
305 Emens, supra note [x], at [add pincite].
306 Non-exceptionalism example of private contract to mine coal and a private contract for sex work: state
might fairly regulate them both because of “risk.”
307 Wall Street Journal (cited in The Week, Feb. 18, 2011).
51

actually gives sex workers themselves the ability to help establish the standards that will
govern the profession.
This leads to yet another regulatory option, self-regulation. As described above,
pornography has been emblematic of self-regulation, and indeed, holds itself up as a
poster child for that approach. [fill in]
In addition to jurisdiction, a second possibility suggested by the California condom
controversy is the creation of a dedicated agency to administer the regulation. Sex
workers themselves endorse such a turn. Several organizations have urged creating
separate and discrete agencies and commissions to monitor the sex work industry. The
World Charter for Prostitutes’ Rights urges, “There should be a committee to insure the
protection of the rights of prostitutes and to whom prostitutes can address their
complaints. This committee must be comprised of prostitutes and other professionals like
lawyers and supporters.” 308 Exotic dancing organizations largely concur: “Provisions
exist under the Occupational Health and Safety Act that are relevant to club owners and
dancers. The current requirements, however, are often too general to be applied as
measurable standards. Public Health Units need to establish specific criteria for what
constitutes adequacy or sufficiency under each provision so that dancers and club owners
alike know when they have met the standards for occupational health and safety.” 309
Whether they envision federal or state regulation is unclear, and perhaps irrelevant, as
many of these organizations are international ones. Collectively they call for OSHA-like
regulatory structures that can be attentive to the specificities of sexual work and
empathetic to the concerns of the workers. 310
There are precedents for such targeted agencies. Some workplaces are so challenging
or pose such specific risks that Congress has created a separate agency to address their
workers’ health and safety needs. A classic example is the Mine Safety and Health Act,
which regulates mining, an archetypically risky workplace. As noted in Section II, the
severe hazards and injuries in mining prompted the first two workers’ compensation
laws. 311 The first comprehensive miner safety act was passed in 1969 and amended in
1977, seven years after the passage of OSHA. 312 According to the legislative history,
“the existence of unsafe and unhealthful conditions and practices in the Nation’s coal or
other mines is a serious impediment to the future growth of the coal or other mining
industry and cannot be tolerated.” 313 Protection for miners has certainly waxed and
waned over the years. At the moment, they seem to enjoy a fairly robust set of
protections, although enforcement varies. 314 But are professional sex workers likely to be
treated like miners? Can we imagine an STD Fund akin to the Black Lung Fund? This
raises the next question, of political capital and will.
B. Political Feasibility
308
World Charter 184
309 Exotic Dancing Health and Safety
310
(many of the organizations are international ones, so they would not be contemplating our federal
structure.)
311
[add citation]. Although passed seven years after OSHA, MSHA updated the Coal Mine Safety and
Health Act of 1969.
312
[cite the statute and as amended]
313
[find cite] 799 (footnotes omitted).
314
See infra notes [x] and accompanying text.
52

For several reasons, historically miners have received special regulatory attention.
Through-out the twentieth century, when coal was the nation’s primary source of energy,
their labor was perceived as highly valuable. The nation valorized miners, politically and
culturally. Their efforts to assert their rights provoked violent resistance from the mining
companies and legendary stand-offs, now immortalized in the history of unionization. 315
Importantly, miners were also what Joan Williams has called ideal workers. 316 They
inspired workers’ compensation because they were bread-winning men who performed
crucial labor for the economy, whose workplace deaths left economically devastated
families. 317 Finally, during the heyday of mining, its substantial environmental costs
were not widely perceived. In other words, the substantial externalities mining imposes
were invisible. All of this translated into political influence. [add quote from the Witt
book] 318 Of course, MSHA was not a palliative. Miners continue to struggle against
both corruption and lack of enforcement, and several recent incidents demonstrate how
such dedicated agencies can be even more susceptible to industry capture. 319 In sum,
MSHA can be understood as a product of miners’ substantial, if contested, political
influence. 320
The analogy to mining, an archetypically risky form of labor, and one that has
enjoyed substantial, if not completely effective, regulation, is helpful in thinking about
the political feasibility of regulating sex work. While mining may be an iconic form of
labor, it is less clear that most Americans view sex work as of similar social value. To
the contrary, sex work occurs against the strong gravitational pull of marriage and the
firm entrenchment of sex in the private sphere. Prostitution has long been cast as a threat
to the companionate model of marriage that arose in the late eighteenth century. [Add
cites to historic criticisms]. Today’s critiques have hardly changed in tenor or fervor.
Feminists and social conservatives alike condemn prostitution as threatening “family
values.” For instance, [add example of response to Spitzer from both feminist and social
conservative perspectives]. Moreover, the commodification of sex, that is, the
occurrence of sex in markets, is also separately and roundly condemned. [add quotes
from Radin et al] Thus, in today’s nominally sexually “enlightened” era, no less than in
Victorian times, prostitution is viewed as a threat to marriage and its role in preserving
the social order, or, from a more feminist lens, the possibility of marriage as a site of
gender egalitarianism. In stark contrast, most workers labor firmly in the so-called public
sphere and do not do so against this powerful gravitational pull.
In addition, sex professionals are viewed in many ways as the opposite of the “ideal
worker.” People find it difficult to envision prostitutes as women with families, let alone
as the primary bread-winner, which many of them are. To the contrary, as just described,
315
[add cites].
316
[add citation to Joan]
317
[add quotation and citation from Witt]
318
See also Robert H. Stropp, Jr., Walkaround Rights for Miners’ Representatives Under MSHA: A
Compatible Statutory Scheme, 96 W. VA. L. REV. 795 (1994).
319
[add examples re the recent mining disasters and how they were attributed to underenforcement.] In the
wake of this political maelstrom, Don Blankenship, CEO of the Massey Mines, was forced to resign. [two
sets of books, plus lack of enforcement].
320
Miners are a labor conundrum. On the one hand, among the most vulnerable and exploited of workers.
On the other hand, special status.
53

prostitutes are viewed as threatening to families. Much political work would need to be
done for the public to perceive prostitution as work that supports, rather than threatens,
families. In sum, unlike miners and other iconic workers, sex professionals have
notoriously low political capital. 321
Finally, there is the question of externalities, or non-internalized costs of
professional sex, and how these shape public perception. With mining, until quite
recently, the broader social benefits were clear. Without a comprehensive grasp of the
environmental costs, mining seemed to yield a clear net benefit to the political economy.
Hence the idolization of miners. What are the social benefits of commodified sex? And
do they outweigh the costs?
Many feminists object to prostitution’s spill-over effects on other women in
society that are not borne by the industry. Sylvia Law makes the case:
Elevating the status of sex industry work to an employment relationship neglects
to address its sexually exploitative nature. Through legitimization, the legal
system may send a message to American girls that sex work is a socially
acceptable option for earning a living. This contradicts a central focus for many
feminists: the desire that girls grow up knowing that they are more than sex
objects, that they deserve respect and attention for more than their sexuality. 322
In this view, transactional sex affects and shapes the menu of sexual bargains women
might strike, including marriage and dating, as well as non-sexual workplace options and
terms. Importantly, these effects are imposed on women who do not work in, or directly
benefit from, sex markets. Another opponent characterizes transactional sex as “a
misleading contract because, uncontrolled by the woman who is a party to it, it extends
far beyond the specific transaction and payment for it. The contract is not only between
the woman selling sex and the client buying it from her, but between the woman selling
sex and the society in which she lives.” 323 Similarly, in contrasting prostitutes and
professors, Martha Nussbaum observes, “the professor of philosophy, if a female, both
enjoys reasonably high respect in the community and also might be thought to bring
credit to all women in that she succeeds at an activity commonly thought to be the
preserve only of males. She thus subverts traditional gender hierarchy, whereas the
321 [ironic given their connections to many powerful political men]. See also LEVITT & DUBNER, supra
note [x], at 31-32 (“[U]nlike the sugar and steel industries, [prostitution] holds little sway in Washington’s
corridors of power—despite, it should be said, its many, many connections with men of high government
office. This explains why the industries fortunes have been so badly buffeted by the naked winds of the
free market.”).
322 Fischer, supra note [x], at 552. Fischer continues “providing legal protection in sex work has
drawbacks. Specifically, it fails to acknowledge the inherently degrading and dehumanizing character of
the industry and in fact further supports its legitimacy as a commercial venture. Furthermore, granting sex
workers rights as employees is only a partial response to the harm of working in the sex industry and may
impede comprehensive reform.” Id. at 552. [perhaps there is an analogy to casinos and externalities?]
323 Almog, supra note [x], at 734. Almog elaborates:
[T]he contractual approach ignores the enormous losses entailed by the social infamy that attaches
to prostitution. It is concerned only with the visible, thin upper shell of the prostitution contract-the
sum or economic return for which a woman consents to sell sex—and disregards the
underlying, more substantial layers of the transaction. The contractual approach is indifferent to
the true cost borne by a woman that sells sex, and by her alone—the loss of social respectability
and transition to an inferior, branded, humiliating status.
Id. at 727.
54

prostitute, while suffering stigma herself, may be thought to perpetuate gender
hierarchy.” 324 Another philosopher, Margaret Radin, posits a “domino effect,” in which
[fill in]. 325 Finally, Laurie Shrage offers particularly harsh criticism: “Just as an Uncle
Tom exploits noxious beliefs against blacks for personal gain, and implies through his
actions that blacks can benefit from a system of white supremacy, the prostitute and her
clients imply that women can profit economically from patriarchy.” 326
A related concern is that legalized sex markets will yield another externality—the
intensification of current race and gender norms that feminists find repugnant.
Mainstream sex markets value and valorize mainstream beauty norms. These shift over
time, but some, for instance youth and whiteness and “ability,” remain fairly static.
Hence, as discussed in Section III, non-white women, older women, and disabled women
all find themselves disadvantaged in sex markets. Not only is it more difficult for them
to find work, but they are often paid less, labor in less savory markets, and find
themselves consigned to niche or fetish markets that may or may not require stereotypical
performances that many workers find offensive. Of course, it is not inexorable that
legalization will reinforce market norms. However the last fifty years have seen limits of
feminist efforts to perform counter-education projects in the pornography and exotic
dancing markets. For all of the above reasons, many feminists contend the externalities
warrant sex work’s on-going criminalization. It is unclear how the externalities
associated with sex work will weigh against discerned benefits, which will need to be
clearly articulated.
Of course, others strongly resist the attributions of these externalities.
Responding to Radin, Sylvia Law observes that:
Images and reality of degradation of women, violence, and exploitative sexuality
are pervasive in U.S. culture. But it is difficult to see commercial sex as the main
culprit. Despite the fact that the U.S. is expensively committed to the prosecution
of commercial sex, the commodified discourse that Radin fears is pervasive in the
magazines at the supermarket check-out line, on commercial airlines, in network
television, and, in more explicit forms, on cable TV, the Internet and at
newsstands. Indeed these pedestrian forms of sexual commodification may be
more pernicious than commercial sex simply because they are so ordinary. It is
not clear that legalization of commercial sex would lead to an increase in sex
commodification talk, even if advertising were not banned. 327
324324 Nussbaum, supra note [x], at 705. [Stigma rationale for prohibiting sex discrimination (doctors and
flight attendants) w3ould seem to be strong re strippers! (“the social message that women are primarily
objects for men's sexual gratification” Yuracko 151); Mikulski 20 “If there was one thing I could do, it
would be to get rid of the stigma.”)]
325 [add Radin citation]. But see [add citation] (contending that Radin’s “’domino effect’ argument
implicitly suggests that the exploitation of mostly poor women that results from the criminalization of
commercial sex is counter-balanced by benefits to people whose sexual and economic lives are closer to the
visionary ideal she articulates.”) (footnote omitted).
326 Shrage, supra note [x], at 356-57. But see Chancer, supra note [x], at 164 (“Shrage’s blaming of the
prostitute for “Uncle Tomming” and reinforcing a patriarchal system makes no more sense than it would to
accuse other underground economic workers of collusive capitalism.”).
327 Law, supra note [x], at 538-39 (footnote omitted). Chancer concurs:
In terms of gender, the stigmatization also singles out prostitutes from other women who also use
their bodies to reap rewards in a society common with Hollywood actresses for beauty, for
example, with models, singers, Madonna (her ‘good girl’ name purposefully ironic in this context)
55

Some pro-sex work theorists accuse feminists who oppose it of not being concerned with
“overcoming the oppression of all women,” which is what feminism is supposed to be
about. 328 Anne McClintock contends that “[e]mpowering sex workers empowers all
women, for the whore stigma is used to discipline women in general; and encouraging
society to respect sex workers encourages society to respect all women.” 329 Finally,
under some definitions of feminism, prostitution might be lauded for its potentially
positive effects in subverting and destabilizing the current sex/gender system. 330
C. Endowments [& Bargaining Power?]
I began this Section by observing that the controversy over condom mandates in
the pornography industry, a long-standing legal sex market, suggests the difficulty in
administering a regulatory regime for sex markets. On the other hand, the opposite might
be true. Institutional endowments form differently in legal versus illegal markets. One
effect of decriminalization is to disrupt the endowments that have become entrenched in
the shadow of illegality. In fact, decriminalization is often urged explicitly to disrupt
these interests as evidenced in instances as diverse as the legalization of alcohol,
gambling, and the emerging legal markets for marijuana. 331 Hence, part of pimps’ power
over prostitutes comes from their close and complex relationships with law enforcement
institutions. 332 It is unclear how current endowments would transform in legalized
markets for sexual labor. Thus, prostitution might actually be easier to regulate than
pornography because the current institutional endowments will be disrupted, it will take
some time for them to re-form and re-organize in the legal economy.
D. Substitution Effects
Of course, there are limits to regulation. Equally important are its unintended effects.
Sex work comprises a labor sector that is highly susceptible to substitution effects. That
is, as the costs of operating a legal business increase, employers, workers, and customers
migrate, or substitute, to the underground, illegal economy. In economic language,
changing the cost structure of a market produces an equilibrium response. Classic
examples include markets for house-keeping and yard work. Workers in these sectors
self-sort into four markets. They can work for a legal company, independently and
and followers, and withhuge numbers of women who spend billions on cosmetics and surgical
procedures in their struggle to prolong sexiness into old age. In each of these cases, like sex
workers, women are also either taking pleasure in the power of temporarily sexy and salable
bodies, or attempting to find such power. Thus, from the standpoint of feminist theory, it is
inconsistent to indict only the prostitute for collusion with patriarchy unless millions of other
women are also viewed just as critically.
Chancer, supra note [x], at 165.
328 Chancer, supra note [x], at 156 (emphasis in original). Elsewhere Chancer contends “For all these
reasons, then, it strikes me that feminism would be most consistent with its own goals of representing the
interests of all women to the extent that it rigorously avoided reproaching prostitutes for coping within
gender-skewed conditions.” Chancer, supra note [x], at 166 (emphasis in original).
329 McClintock, supra note [x], at [add pincite].
330 [add cite to Jody Green on this definition; Gayle Rubin and Judith Butler too? Katherine Franke in law?]
331
332
See also LEVITT & DUBNER, supra note [x], at 40-41 (discussing negotiations between pimps and police)
[change to Venkatesh].
56

legally, independently “underground,” or underground for a company. Workers opt for
underground labor for a variety of reasons. Of course some do not have a choice, i.e.,
they may lack the paperwork for legal labor or are coerced into illegal markets. Others,
though, are enticed into illegal labor by autonomy, convenience, or “wedge” effects, i.e.,
a substantial difference between the amount the employer pays into the system and the
amount the worker receives.
Market sectors that are either capital intensive and/or require a fixed business site
have the lowest substitution effects. For instance, a manufacturing plant cannot easily go
“underground.” Similarly, restaurants must operate out of a specific site. 333 This lack of
mobility means they cannot easily evade inspection. (Of course, with manufacturing,
there is a different substitution effect at work, outsourcing to a different, less regulated
jurisdiction, whether domestic or foreign. However, outsourcing exchanges one legal
sector for another; it does not go completely underground.) One of the arguable reasons
that mining can be so heavily regulated is that it is unsusceptible to substitution effects.
It is both capital intensive and site specific. Mining companies are not mobile—they
must be situated where the natural resources are located. In addition, they invest heavily
and, unlike manufacturing, cannot outsource the work.
In contrast, sex work would seem to be the opposite of mining. Sex work requires
neither a high investment of conventional capital nor does most of it require a fixed
business site. 334 It requires little capital (dance clubs and brothels can be run out of
almost any space) and is not site specific, i.e., sex can occur in a home, leased or rented
premises, or even the street or car, and is highly mobile, it is highly susceptible to
substitution to the underground economy. Thus, like housekeeping, yard work, and drug
dealing, sex work is highly susceptible to substitution effects. Hence, there is a concern
that if decriminalized and then regulated, sex work would remain in the underground
economy. My gamble, though, is that because much sex work already is illegal, the
effects would flow the other way. Instead of people fleeing the legal sector for the illegal
one, we are trying to induce people to move out of the underground economy to the legal
one. At least some owners, workers, and customers, I am betting, would prefer the lower
risk and lesser stigmatization of a legal market, as opposed to an illegal one. While it
may be true that the more regulations that are imposed, the less illegal work will
“substitute up” to legal markets, it is also the case that some who currently opt out of
professional sex because of the criminal and other risks would almost certainly be drawn
into a decriminalized, legalized, fully regulated market. [find any empirical data on what
happens in legalized jurisdictions?] [Or alternatively, a different kind of substitution
effect would take place, the classic race to the bottom in which, like the highly mobile
pornography industry, regulation precipitates a move to a more friendly jurisdiction.]
Importantly, there is also substitution between different sectors of sex markets, e.g.,
brothel, outcall, and street prostitution (or in dancing, club versus outcall). [I have to
think this through: For instance, one would hypothesize that increasing regulation of
brothel/dance clubs through body guards, etc. will increase the substitution to outcall. 335 ]
333 Pop up restaurants, “underground restaurants,” and trucks are the exceptions.
334 The exception would be dance clubs.
335
Experience suggests that if brothels are closed street prostitution and escort services become more
popular. Thus, as a practical matter, the question is whether we prefer street prostitution and escort
57

There is an interesting divide within the sex work industry. In the case of prostitution,
some workers seem to value community, predictability, and safety and choose to work in
brothels. Others, though, place a premium on autonomy, discretion, and privacy, and
prefer outcall work. In fact, many outcall prostitutes are drawn to the work because of
the relative autonomy compared to other options. 336 A similar dynamic is at work in
dance markets.
E. Summary
In sum, contrary to invocations of professional sex as “just work,” the political
feasibility calculus turns on several factors. Important questions include whether a
regulatory regime would be best administered by federal, state, or self-regulation need to
be determined, as does whether a dedicated agency is feasible or desirable. Political will
also needs to considered, which entails a variety of issues, including public perception of
sex work and sex professionals, the gravitational pull of marriage and the relegation of
sex to the private sphere, and the management of externalities and spill-over effects.
Finally, substitution effects demonstrate that not all work can be regulated to the same
degree of efficacy. Sex work may be a classic instance of where there is a highly elastic
trade-off between regulation and substitution. Thus, all work can be regulated, but,
because of administrability concerns, political will, and substitution effects, not all work
can regulated to the same degree of efficacy.
CONCLUSION
By casting it as labor, sex as work advocates hope to lay claim to an array of
effects—including normalizing and legitimizing the practice; changing endowments
through enforceability; and accessing legal regulation to ameliorate some of the worst
aspects of contemporary sex markets. But is the factory floor really like the sex
worksite(s)? Almost certainly not. And yet, the commodified sex as labor claim/analogy
is revelatory—about both the discourse and the regulation of commodified sex.
[conclude conclusion!]
services to brothels. Street prostitution raises the most serious risks of violence, sexually
transmitted disease, and offence to community sensibility and public life. Thus, the Inquiry
recommended that prohibitions on street solicitation be retained, but within a context that allowed
alternative means of negotiating commercial sex relations.
Law, supra note [x], at [add pincite].
336
[add quotes]. See also Nussbaum, supra note [x], (emphasizing discretion and autonomy in prostitution
compared to other work).
58