1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...
1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...
1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...
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<strong>Regulating</strong> <strong>Sex</strong> <strong>Work</strong><br />
<strong>Adrienne</strong> D. <strong>Davis</strong> 1<br />
<strong>VERY</strong> <strong>ROUGH</strong> <strong>DRAFT</strong>: please do not circulate or quote without permission<br />
Most commentators on sex markets focus on the debate between abolitionists and<br />
those who defend and support professional sex workers. This paper, instead, looks at<br />
debates among the pro-sex work camp, uncovering some latent tensions and<br />
contradictions. It shows that, within the sex as labor camp, some stress the labor aspect,<br />
urging that professional sex workers constitute a “vulnerable population,” similar to other<br />
laborers who perform highly risky and/or exploited labor, and should be regulated<br />
accordingly. In this view, sex work would be assimilated into other labor. Others,<br />
though, take a more libertarian approach. They exceptionalize this form of labor, arguing<br />
that because it is sexual it should be exempt from state scrutiny and interference. In sum,<br />
while both agree that professional sex work should be decriminalized, when one turns<br />
from the criminal to the regulatory perspective, the paper shows how libertarians and<br />
assimilationists could not be more opposed. The paper contends that neither of these<br />
views is satisfactory. <strong>Sex</strong> work could very well be legalized—if we have the political<br />
and moral will to do so. The paper explores a regulatory structure that might govern sex<br />
work markets. To do so requires a break with both assimilationism and erotic<br />
exceptionalism.<br />
The paper proceeds in four parts. The first part explores the discourse and debate<br />
over professional sex. It summarizes, briefly, the abolitionist position, often identified as<br />
the dominant feminist position. It then turns its attention to the pro-sex work camp,<br />
teasing out various strains. While most legal discussions of sex work address the debate<br />
between sex work advocates and abolitionists, by focusing within the sex work discourse<br />
this Section reveals a latent tension within it, those who emphasize the sexual part of sex<br />
work to argue for a libertarian end-state, versus those who emphasize the labor part of<br />
sex work and see “work” as a way to demand greater state regulation of sexual<br />
commerce. Thus, while both view “work” as a legitimizing lens, they ultimately envision<br />
starkly different, even contradictory, relationships between sexual commerce and the<br />
state. Thus, while both may urge decriminalization, assimilationists and exceptionalists<br />
are quite opposed.<br />
The second section shows how the rhetoric of sex is “just” labor can be overly<br />
simplistic and terribly misleading. From a policy perspective, merely insisting that sex is<br />
“just” work/that sex be assimilated into work invokes a monolithic, idealized workplace<br />
that ignores the starkly different manifestations of work and its regulation in postindustrial<br />
global economies. This section explores how employment, labor, and<br />
discrimination law regulate the various hazards, risks, conflicts, and disputes that arise in<br />
the modern workplace. In the process, it exposes the complete diversity of work and its<br />
regulation. Although assimilationists clearly have in mind a vision of how “work” is<br />
1 The conceptualization of this project has benefitted immensely from conversations with Susan Appleton,<br />
Scott Baker, Marion Crain, Elizabeth Glazer, John Inazu, Greg Magarian, Eric Miller, Mireille Miller-<br />
Young, Adele Morrison, Anca Parvulescu, Bob Pollak, Jeff Redding, Laura Rosenbury, Peggie Smith,<br />
Susan Stiritz, and Rebecca Wanzo, as well as the Washington University School of Law Faculty<br />
Colloquium and the Washington University Political Theory <strong>Work</strong>shop, the Hofstra Colloquium on Law &<br />
<strong>Sex</strong>uality, and my Ladies Who Do Theory Writing Group—Gretchen Arnold, Marilyn Friedman, Ruth<br />
Groff, and [Linda Nicholson].<br />
1
egulated, their claim to a universal workplace or regulatory structure is a miscue from<br />
how labor law actually functions. <strong>Work</strong>place regulation today is varied, differential, and<br />
under immense contest.<br />
The second half of the paper then turns its attention to whether sex work could be<br />
effectively regulated, once we break from both assimilationism and exceptionalism.<br />
Section III stresses the extent to which sex workplaces are not like most workplaces.<br />
Most workplaces are not characterized by the particularities of sex work, the culture of<br />
alcohol and drinking and drugs; the homosocial “mob” context; the blurred line between<br />
re-negotiations and assaults; a similarly blurred line between on-site/off-site (that is onduty/off-duty)<br />
identities; and employer expectations of “free” services that can combine<br />
to make sex for hire more dangerous for workers than other forms of labor. Crucially, the<br />
danger is coming largely from customers and patrons (and managers and owners) rather<br />
than from machines or mine collapse.<br />
Additionally, the assimilationist/“sex is just work” mantra misses the ways that<br />
sexual services differ from each other, posing what the paper shows to be radically<br />
different regulatory challenges. 2 It rejects schema rooted in moralism that categorize sex<br />
for hire along lines of proximity to intercourse. (Such schema tend to envision sex for<br />
hire on a continuum based on sexual contact between workers and consumers,<br />
envisioning lap-dancing as midway between phone sex and prostitution.) The paper<br />
contends instead that, from a labor and regulatory model, the inquiry would be worker<br />
danger and safety, replacing morality with geography. Taking seriously the challenge of<br />
legalizing, not just decriminalizing sex for hire, the paper suggests a different schema, of<br />
sexual geography. In this model, the most dangerous jobs are those that take place in<br />
purely private spaces, frequently with multiple consumers and little protection for<br />
workers. This would include non-brothel prostitution (street or escort) and out-call exotic<br />
dancing (Duke LAX, two dancers working in a house rented by an athletic team, is<br />
emblematic). The middle category are those forms of sexual services that take place in<br />
commercial establishments open to the public, frequently with multiple workers servicing<br />
multiple consumers, e.g., prostitution in brothels and club dancing, whether contact or<br />
non-contact. In these contexts, management is well-situated to protect workers. Finally,<br />
the least dangerous are those services in which the worker and consumer are in different<br />
geographies, e.g., phone sex and other new media sex, although account must also be<br />
made for the physical proximity of employers and supervisors. Governance should<br />
replace a moral with a danger continuum. 3 In sum, the rhetorical claim that sex work is<br />
“just like” any other work is a miscue, one that distracts us from both the distinctiveness<br />
2 Cf. Laurie Shrage [add cite] (rejecting any unitary meaning of prostitution and instead contending it is<br />
historically and culturally specific). See also Prabha Kotiswaran, Born unto Brothels: Toward a Legal<br />
Ethnography of <strong>Sex</strong> <strong>Work</strong> in an Indian Red-Light Area, 33 LAW & SOC. INQUIRY 579 (differentiating<br />
prostitutes according to their contractual autonomy and relationship to property tenancies); Elizabeth<br />
Bernstein, What’s Wrong with Prostitution? What’s Right with <strong>Sex</strong> <strong>Work</strong>? Comparing Markets in Female<br />
<strong>Sex</strong>ual Labor, 10 HASTINGS WOMEN’S L.J. 91 (comparing how race, body capital, and other factors shape<br />
street prostitutes experiences in San Francisco). [: should I add Cabezas here? (breaking down monolithic<br />
categories of sex work).]<br />
3 “Danger” or risks from sexually transmitted diseases, however, do continue to map onto the sexual, moral<br />
contact continuum. The paper discusses how these health risks might be managed, drawing from the<br />
pornography industry’s experience with self-regulation, whose effectiveness is highly debated. [ check<br />
Dan Kahan’s work on how questions of science turn into culture wars. Is it relevant?]<br />
2
and the diversity of sex work. Even taking into account the diversity of workplaces, sex<br />
work would almost certainly pose distinctive regulatory challenges. Contrary to the<br />
assimilationists, if markets for sex are to be not merely decriminalized, but also what<br />
many advocates for sex work urge, fully legalized with attendant worker rights and<br />
protections, then we must take account of the particular characteristics and regulatory<br />
challenges posed by commodified sex. 4<br />
Other aspects of sex work, though, might be tougher to regulate. Some sex work<br />
advocates find the idea of brothel or dance club owners or other sex employers taking<br />
account of patrons’ racial or other bodily preferences, as well as their fetishic<br />
preferences, inherently offensive, or “degrading.” If safety standards regulate much<br />
workplace danger, then advocates imagine that the consumer preferences they view as<br />
degrading will be dealt with through the application of anti-discrimination norms (again<br />
one hears, it’s “just like any other workplace, e.g., selling a sweater.” What we uncover<br />
is a latent ambivalence among nominally pro-sex work campers. The quick embrace by<br />
some of this imagined set of regulations manifests their ambivalence: even as they urge<br />
professional sex be denominated as legitimate work, they turn to discrimination law to<br />
delegitimize and eradicate the sexual preferences that comprise this market. This<br />
imagined set of regulations will rid sex markets of outré customer preferences once and<br />
for all, firmly entrenching vanilla as the sexual norm. While many advocates for<br />
legitimized sex markets avoid the language of moralism here, instead urging the “same<br />
protections” for sex bargainers as currently are given to other workers, I argue that, again,<br />
this misunderstands how sex markets work and their distinctiveness. Hence, the Essay<br />
concludes that markets for sex could most likely be regulated, albeit imperfectly, against<br />
some workplace risks, but less so against the “degrading” part. Degradation, that is,<br />
things commentators denominate as “degrading,” may be built into markets for sex.<br />
This paper has two audiences. First, feminists on both sides of the debate: mainly<br />
those who advocate sex for hire as legitimate labor but also those who seek to eradicate it<br />
as violence against women. My hope is to cut through some of the heat and shed some<br />
much-needed light. Second, labor scholars have largely overlooked how recognizing sex<br />
as legitimate labor might challenge and transform workplace organization and<br />
regulation/sex work. 5 Regulation is the implicit key and is what is sought in the<br />
legalization movement (as opposed to those who limit their efforts to decriminalization).<br />
Confronting the ways that commodified sex fits into and yet challenges and transcends<br />
conventional paradigms of labor will yield a more nuanced vision of sex for hire, and also<br />
hopefully shed some light on contemporary contests over labor, discrimination, and<br />
regulatory strategies.<br />
This paper sits at the nexus of several scholarly and political discourses. Of<br />
course, it implicates debates over sex work, which has enjoyed surprisingly little<br />
theoretical attention from law. Notable exceptions include Catharine MacKinnon,<br />
Margaret Baldwin, Martha Nussbaum, Sylvia Law, Kimberly Yuracko, and, more<br />
4 Now, some sex markets are legal, i.e., erotic dancing and phone sex; others are illegal, i.e., prostitution.<br />
Decriminalization is a precursor for illegal activities. Full legalization, or regulation, though, might be<br />
sought for those markets that already are decriminalized.<br />
5 To the extent sex work has come up in labor and employment law scholarship it is mainly in the context<br />
of exotic dancers’ organizing as unions under the NLRA or claiming employee versus independent<br />
contractor status. See infra notes [x] and accompanying text.<br />
3
ecently, Prabha Kotiswaran. 6 It also, though, implicates fairly directly discrimination<br />
discourse, questioning the applicability of Title VII to certain forms of sex work and<br />
contemplating whether appearance employment should continue to enjoy its de facto<br />
exemption. For instance, Russell Robinson has suggested that film casting decisions<br />
could and should be brought within the scope of Title VII, while Deborah Rhode recently<br />
has contended that appearance should enjoy the same anti-discrimination protections as<br />
conventional employment. 7 Relatedly, others have explored whether “intimate<br />
discrimination” violates egalitarian norms. 8 And of course, it will touch on discourses of<br />
racialized sexuality, or what Siobhan Brooks and Adam Green have termed “erotic<br />
capital,” the extent to which desire is inflected by historical structures of subordination. 9<br />
A couple of important caveats. First, to the dismay of many, the Essay does not<br />
intervene in the underlying debate whether sex for hire is legitimate work or systematized<br />
violence and abuse of women. Second, it is not my argument that workplace regulation<br />
is all that is needed to resolve all of the problems presented by sex for hire. As Audrey<br />
Macklin observes: “It is impossible to test this hypothesis by introducing prostitution into<br />
a world where it does not exist.” 10 Third, this paper adopts an explicitly gendered<br />
analysis for two reasons. While there are, of course, male and transgendered sex<br />
workers, they appear less organized than those who identify as women. Men are also less<br />
visible in a debate that often focuses on the gendered effects of sex work and its<br />
criminalization on women. 11 Hence, while this paper takes seriously the need to account<br />
for male and transgendered sex workers, it does not separate out their issues and<br />
concerns, except in some discrete instances. 12<br />
In addition, for several reasons, this paper does not engage meaningfully with<br />
pornography as sex work. First, many who perform in adult films view themselves as<br />
actors to the exclusion of being sex workers. To the extent that this paper is trying to<br />
capture and interrogate the discourse of sex work many pornography performers would<br />
resist this denomination. 13 Second, for the last half century the law has drawn a clear line<br />
between pornography, which is protected under the first amendment, and prostitution,<br />
6<br />
Margaret A. Baldwin, Split at the Root: Prostitution and Feminist Discourses of Law Reform, 5 YALE J.L.<br />
& FEMINISM 47 (1992); Prabha Kotiswaran, Born unto Brothels: Toward a Legal Ethnography of <strong>Sex</strong> <strong>Work</strong><br />
in an Indian Red-Light Area, 33 LAW & SOC. INQUIRY 579; Sylvia A. Law, Commercial <strong>Sex</strong>: Beyond<br />
Decriminalization, 73 S. CAL. L. REV. 523 (2000) (; Catharine A. MacKinnon [decide which to cite here,<br />
from Signs or monographs]; Martha C. Nussbaum, “Whether from Reason or Prejudice”: Taking Money<br />
for Bodily Services, 27 J. LEGAL STUD. 693, 693-94 (1998); Kimberly A. Yuracko, Private Nurses and<br />
Playboy Bunnies: Explaining Permissible <strong>Sex</strong> Discrimination, 92 CAL. L. REV. 147 (2004).<br />
7<br />
Russell Robinson, Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms,<br />
95 CAL. L. REV. 1 (2007). See also Michael J. Frank, Justifiable Discrimination in the News and<br />
Entertainment Industries, Does Title VII Need a Race or Color BFOQ?, 35 U.S.F. L. REV. 473 (2001).<br />
DEBORAH L. RHODE, THE BEAUTY BIAS: THE INJUSTICE OF APPEARANCE IN LIFE AND LAW (2010).<br />
8<br />
See, e.g., Elizabeth Emens, Intimate Discrimination: The State’s Role in the Accidents of <strong>Sex</strong> and Love,<br />
122 HARV. L. REV. 1307 (2009); Lisa C. Ikemoto, Male Fraud, 3 J. GENDER RACE AND JUSTICE 511<br />
(2000); Note, Racial Steering in the Romantic Marketplace, 107 HARV. L. REV. 877 (1994) [look for others<br />
on personals ads].<br />
9<br />
*BROOKS, supra note [x]; [add Adam Green citation].<br />
10<br />
Macklin, supra note [x].<br />
11<br />
[add footnote on trans sex workers, some of whom do I identify as women and therefore incorporated in<br />
that analysis.]<br />
12<br />
On male sex workers, see [craft a footnote]<br />
13<br />
[add quotations/citations on this point.]<br />
4
which is not. <strong>Sex</strong> in the course of creating a movie, video, or photo is considered<br />
“expression,” which cannot be censored based on its content, even if that content is<br />
offensive. 14 Hence, law views those who work in pornography as being paid to create a<br />
protected expression, while those who work in prostitution are paid for sex. 15 Of course,<br />
the pornography/prostitution distinction is unstable and questionable. 16 Many actors in<br />
pornography earn the majority of their living by headlining at exotic dance clubs as “fill<br />
in title.” 17 In this sense, their work in pornography is the platform for a more lucrative<br />
career in sex work. In addition, with regard to the expression/sex distinction, if everyone<br />
14 Roth v. United States, (1957). The exception is obscenity, which is exempt from first amendment<br />
protection because it offends community standards of decency. See Miller [fill in citation and add<br />
parenthetical with 3-prong standard; Under Miller, as long as the work, as a whole, has some “serious<br />
literary, artistic, political, or scientific value,” the first amendment protects its distribution.]. The<br />
distinction was re-visited in the 1980s when California prosecutors argued that an adult film producer was<br />
guilty of pimping because he had hired five women to perform sex acts for a film. The California Supreme<br />
Court ruled that the state’s anti-pandering, or anti-pimping laws were not intended to apply to pornography<br />
and that the acting fees were not paid “for the purpose of sexual arousal or gratification, his own or the<br />
actor.” California v. Freeman, [add citation; also, is more of this a quote than I have captured by my<br />
quotation marks?] (emphasis added). (The sexual gratification of people who watched the movie appeared<br />
to be irrelevant.)<br />
15 Recent legal rulings continue to uphold and even reinforce the pornography/prostitution dichotomy. For<br />
instance, A recent New York ruling reiterated the dichotomy, also noting that “Prostitution is and has<br />
always been intuitively defined as a bilateral exchange between a prostitute and a client.” [add cite; also, is<br />
the next set of quotations from the same case or from the Colb online article about the distinction?] [“Most<br />
of us typically think of prostitution as involving a customer who pays a prostitute for providing sexual<br />
services. We intuit that pornography, by contrast, involves a customer paying an actor for providing sexual<br />
services to another actor./In other words, prostitution is generally understood as the bilateral trading of sex<br />
for money, while pornography involves the customer of an adult film paying money to watch other people<br />
have sex with each other, while receiving no sexual favors himself in return.”; “Most of us typically think<br />
of prostitution as involving a customer who pays a prostitute for providing sexual services. We intuit that<br />
pornography, by contrast, involves a customer paying an actor for providing sexual services to another<br />
actor.] Oregon's Supreme Court overturned laws prohibiting live sex shows in 2005<br />
http://www.deseretnews.com/article/615154044/Oregon-court-overturns-2-sex-show-laws.html<br />
16 For instance, Sherry Colb noted that the New York Penal Law’s definition of a prostitute as one “who<br />
engages or agrees or offers to engage in sexual conduct with another person in return for a fee” would<br />
probably encompass adult film actors. Thus the distinction may not hold up to statutory scrutiny. Sherry F.<br />
Colb, http://articles.cnn.com/2005-08-12/justice/colb.pornography_1_prostitution-ring-sexual-servicespornography/4?_s=PM:LAW.<br />
She also observes that “Though two people may very much want to have<br />
sex with each other in private, the law can intervene to say that they cannot, just because one of them seeks<br />
money and the other gratification, for example. If, however, both members of the couple are in it for the<br />
money, and there is a man with a camera taping them, then the sex is insulated by the Constitution from<br />
legal regulation.” Id.<br />
Of course, in addition to the doctrinal vagueness, to many theorists on both sides of the debate,<br />
pornography is on a continuum with prostitution. See, e.g., ANDREA DWORKIN, Pornography and Male<br />
Supremacy, in LETTERS FROM A WAR ZONE 226, 230 (1993, 1988) (“Politically, culturally, socially,<br />
sexually, and economically, rape and prostitution generated pornography; and pornography depends for its<br />
continued existence on the rape and prostitution of women.”); CATHARINE A. MACKINNON, WOMEN’S<br />
LIVES, MEN’S LAWS 160 (2005) (“Pornography is an arm of prostitution.”). [add cites from other, pro-sex<br />
work side].<br />
17 [add citation].<br />
5
taped prostitution “acts” and posted them on the internet, would the acts then qualify for<br />
the pornography exemption? 18 Finally, pornography is itself increasingly in question as<br />
work. As many have noted, the internet is eroding the line between the conventional<br />
pornography industry and non-commodified sex. <strong>Sex</strong>-act videos are increasingly likely<br />
to be available at no cost and the “actors” unpaid, thereby calling into real question the<br />
extent to which it continues to comprise work. 19 Hence, for all of these reasons, although<br />
there is a sophisticated discourse and academic literature on labor dynamics in adult<br />
films, this paper will largely not engage with them. 20<br />
The fifth and final caveat is one about language. I use the term professional sex<br />
because [fill in]. I use commercial sex, sexual commerce, and commodified sex<br />
interchangeably with professional sex. On the demand side, I call consumers of paid<br />
sexual services customers, patrons, and clients interchangeably. I self-consciously use<br />
the “customer” language to confront and unsettle how a full embrace of market logic and<br />
norms can be unsettling. The denomination “customer” suggests the possible legitimacy<br />
of their preferences for different kinds of sexual services, putting purposeful pressure on<br />
those who advocate for legalizing sex markets to contemplate the logical end of<br />
commodifying sex.<br />
I. DISCOURSES OF LABOR & LIBERTARIANISM<br />
The commodification of activities conventionally associated with women—care,<br />
sex, and reproduction—has long generated debate and controversy, especially among<br />
those whose first principles are feminist, i.e., to sex equality and destabilizing the<br />
sex/gender system. 21 While subject to much critique, care activities have long been<br />
heavily commodified and are largely unregulated, or, more precisely, occur in what<br />
18 Also rejecting the compensation dichotomy, Sherry Colb notes that, “Odd as it may seem, what appears<br />
finally to make all of the difference is the mode of gratification for the person who is paying but not<br />
himself seeking money.” Colb, supra note [x]. Colb contends that the true distinction may lie in the<br />
mechanics of sexual excitement and gratification. [check these quotes: “The ultimate demand for<br />
pornography comes from the viewer of pornography, and what excites him is the watching of the adult<br />
film, rather than any physical act performed on him by another person. The "enjoyment" of pornography is<br />
therefore as "speech," rather than as action.” Though real sex occurred in the making of the pornographic<br />
film, this fact is only relevant insofar as it is known (or believed) by the viewer. If, for example, the entire<br />
film were created with highly realistic computer graphics, but the viewer believed that what he saw was<br />
real, then he would enjoy the material just as much.; Because the impact of pornography occurs through the<br />
mediation of an audience witnessing a performance, rather than an audience receiving physical services<br />
from a performer, pornography and its making qualify as First-Amendment protected speech.]<br />
19<br />
[add academic cites if available]; see also Drowning in Porn, New York Mag. 26 (Feb. 7, 2011) [add a<br />
parenthetical].<br />
20<br />
See, e.g., [please find the iconic cites for academic work on pornography. Look at Constance Penley and<br />
she should be a guide to other scholars. I want to do a race string cite to my colleague, Mireille Miller<br />
Young’s work on race and porn]<br />
21<br />
There are, of course, many, contested definitions of feminism. I use Jodi Green’s adaptation of Gayle<br />
Rubin that feminism is dedicated to destabilizing the sex/gender system. [add cites to Jodi Green and<br />
Gayle Rubin; see if other leading feminists also use this or a similar definition]<br />
6
Elizabeth Emens has called a “litigation-free zone.” 22 Reproduction is currently in a gray<br />
area of regulation and commodification, with increased technological capacities<br />
generating much debate over the legitimacy of such markets and their regulation. 23 The<br />
last of the troika, professional sex, is the subject of this paper and has been particularly<br />
contentious. <strong>Sex</strong> markets are diverse, and so is their treatment by the state. Purchase of<br />
actual sex is currently criminalized, but filming and distribution of sex acts<br />
(pornography), erotic performances which may include sexual acts performed on<br />
customers, e.g., lapdances, erotic massages, and sexual interactions that do not involve<br />
touching (e.g., internet and phone sex) are all legal [check on any limits imposed on new<br />
media sex?]. 24 While sex markets are diverse, the stigma and moralism associated with<br />
them is not. Neither commodified reproduction nor commodified care entail the social<br />
reprobation commodified sex does. 25<br />
A. The Debate over Professional <strong>Sex</strong>: A Primer<br />
Interestingly, many self-identified feminists join conservatives in opposing legal<br />
markets for sex. While conservatives typically condemn professional sex in moral terms,<br />
feminists do so in a different register. 26 Many feminists characterize commodified sex as<br />
22 Emens, Intimate Discrimination, supra note [x], at 1311[do other people make such a distinction?<br />
Maybe early Critical Legal Studies?] [explain answers the cls/Foucault critique that law is always<br />
operative] Care markets are socially acceptable in some large part because “[a]t the political level, live-in<br />
caregivers are widely understood to perform the socially necessary (if devalued) task of child-care. Their<br />
employers are typically middle- or upper-class professionals, a powerful constituency. In contrast, the<br />
labor performed by exotic dancers is alternately viewed as demeaning to women and/or immoral; their<br />
employers and customers lack the respectability and the clout of affluent professional parents.” Macklin,<br />
supra note [x], at 182-183. This means that commodified care work is both socially acceptable and largely<br />
unregulated. See, e.g., MARY ROMERO, MAID IN THE U.S.A. (1992); [add other Romero cites]; Peggie<br />
Smith [add cites]; [add others].<br />
23 For example, contrast Michigan, where statutes prohibit enforcement of surrogacy contracts and<br />
parenthood defaults to the birth mother [or best interests standard?] with California where both the<br />
judiciary and legislature provide mechanisms to enforce such agreements. [add cites]. For discussion of<br />
the legitimacy of surrogacy agreements, see for example [cite Marjorie M. Shultz, add other cites].<br />
24 “Currently, prostitution is legal and regulated in countries such as Austria, Germany, Greece, the<br />
Netherlands, Switzerland, and Turkey.” Chi Mgbako & Laura A. Smith, <strong>Sex</strong> <strong>Work</strong> and Human Rights in<br />
Africa, 33 FORDHAM INT’L L.J. 1178 (2010). [sale, purchase, and procurement; partial decriminalization]<br />
Other countries distinguish between procurement and delivery and articulating a separate state interest in<br />
regulating procurement methods.<br />
Carmen & Moody [Even in the two jurisdiction where it is legal, aspects are policed by criminal law:<br />
Nevada rental rules, etc are criminal I think] [Contra criminalizing johns: “Why, [prostitutes] ask, should<br />
men be punished for paying them, but not punished for raping or robbing them?” <strong>Sex</strong> <strong>Work</strong>ers and <strong>Sex</strong><br />
<strong>Work</strong>, supra note [x], at 3.]<br />
25 This is not to say that people do not moralize about these activities—they do. There is often an<br />
expectation that women will render these activities selflessly, that is for free. See, e.g., McClintock, supra<br />
note [x], at 1 (noting not only does “[s]ociety demonize[] sex workers because they demand more money<br />
than women should, for services men expect for free.” but even “Shopping for others is work a woman<br />
generally does for free, and constitutes, as such, the hallmark of gender normality.”) [add cites on the<br />
altruism debate; does Zelizer fit here on The Purchase of Intimacy?]; see also Nussbaum, supra note [x]<br />
(using other forms of labor to question anti-commodification stances towards prostitution.).<br />
26 [moral reform background]<br />
7
abusive of women 27 and a human rights violation 28 —it is an inherently “degraded<br />
exchange.” 29 They reject it as a legitimate form of labor, instead seeking its eradication<br />
and prohibition. According to philosopher Carol Pateman, “When women’s bodies are<br />
on sale as commodities in the capitalist market, the terms of the original contract cannot<br />
be forgotten; the law of male sex-right is publicly affirmed, and men gain public<br />
acknowledgment as women’s sexual masters – that is what is wrong with prostitution.” 30<br />
Catharine MacKinnon has a similar formulation, “Women are prostituted precisely in<br />
order to be degraded and subjected to cruel and brutal treatment without human limits; it<br />
is the opportunity to do this that is exchanged when women are bought and sold for<br />
sex.” 31 Kathleen Barry puts it perhaps most strongly: “The sex men buy in prostitution is<br />
the same sex that they take in rape—sex that is disembodied, enacted on the bodies of<br />
women who, for the men, do not exist as human beings.” Legal philosopher Margaret<br />
Radin makes a different point, that commodified sex cannot exist with our aspirations for<br />
its decommodified form. 32 These insightful and influential feminists conclude that the<br />
27 She continues, “Men decide whether it is sex they pay for, or sex they take by force or with consent.”<br />
KATHLEEN BARRY, THE PROSTITUTION OF SEXUALITY 37 (1995) [hereinafter THE PROSTITUTION OF<br />
SEXUALITY]. Elsewhere, Barry says:<br />
This misogyny, the use of prostitutes to act out one’s contempt for the lower and degraded sex, is<br />
the single most powerful reason why prostitution has always been considered a cultural<br />
universal—the oldest profession, the indestructible institution, the necessary social service. It<br />
intersects with the domination of women at all levels of society.<br />
KATHLEEN BARRY, FEMALE SEXUAL SLA<strong>VERY</strong> 137 (1984). [apparently Barry’s position changed over<br />
time; please incorporate that into this footnote].<br />
28 “The abolitionist position treats all prostitution as a problem of human rights, to be condemned<br />
uncompromisingly, like slavery, and never to be equated with acceptable practices like work, or with<br />
legitimating ideas like consent and contract.” Larson, supra note [x], at 680.<br />
29 Bernstein, supra note [x], at 109.<br />
30 CAROLE PATEMAN, THE SEXUAL CONTRACT 208 (1988). Elsewhere, Pateman elaborates that<br />
“Prostitution is the use of a woman’s body by a man for his own satisfaction. There is no desire or<br />
satisfaction on the part of the prostitute. Prostitution is not a mutual, pleasurable exchange of the use of<br />
bodies, but the unilateral use of a woman’s body by a man in exchange for money.” Id. at 198. In<br />
Pateman’s view, such “sexual contracts” “both established orderly access to women and a division of<br />
labour in which women are subordinate to men.” Id. at 119. See also Laurie Shrage, Should Feminists<br />
Oppose Prostitution?, 99 ETHICS 347 (1989) (“most feminists find the prostitute’s work morally and<br />
politically objectionable. In their view women who provide sexual services for a fee submit to sexual<br />
domination by men, and suffer degradation by being treated as sexual commodities.”).<br />
31 Catharine A. MacKinnon, Prostitution and Civil Rights, 1 MICH. J. GENDER & L. 13, 13 (1993). See also<br />
CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 168 (1991) (“Because the stigma<br />
of prostitution is the stigma of sexuality is the stigma of the female gender, prostitution may be legal or<br />
illegal, but so long as women are unequal to men and that inequality is sexualized, women will be bought<br />
and sold as prostitutes, and law will do nothing about it.”); WOMEN’S LIVES, MEN’S LAWS, supra note [x],<br />
at 159 (“Perhaps when women in prostitution sustain the abuse of thousands of men for economic survival<br />
for twenty years, this will, at some point, come to be understood as nonconsensual as well.”); Andrea<br />
Dworkin, Prostitution and Male Supremacy (1992) (rejecting prostitution as male dominance). [check<br />
MacKinnon (1983)];<br />
32 MARGARET JANE RADIN, CONTESTED COMMODITIES ([add a good quotation for the parenthetical]).<br />
Contrasting prostitution with other forms of disputed commodification Radin says:<br />
The risks of a black market in body parts are slim because the buyer must use a regulated<br />
professional and health care facility to get the part installed. Similarly, even though baby sales are<br />
8
injuries and harms of commodified sex warrant its continued criminalization, and many<br />
contend the state does not do enough to eradicate it. 33 Indeed, for some, ending<br />
prostitution is the “new abolition.” 34 In sum, opposition to sex markets has a long and<br />
rich feminist pedigree. 35<br />
On the other side, different strains of feminist thought argue the legitimacy of<br />
professional sex. Some do so from a pro-sex perspective, arguing that [add quote]. 36<br />
Relatedly, some contend that decriminalized sex exchanges have the potential to subvert<br />
patriarchy, challenging the social mechanisms by which some women are socially slotted<br />
and raised to be “good girls.” In this conceptualization, commodified sex becomes a<br />
“category of radical sexual identity.” 37 Others argue that all women bargain for sex, an<br />
argument that dates back to nineteenth-century critiques of the dichotomy between<br />
marriage and prostitution as a false one. 38 [add quote from Gayle Rubin 39 ] In this view,<br />
routinely arranged in the grey market, parental rights can only be established in court. By<br />
contrast, prohibitions against commercial sex are notoriously difficult to enforce.<br />
Radin, [add cite], at 537 (footnote omitted). Margaret Jane Radin [add cite] (characterizing prostitution as<br />
double bind where both commodification and non-commodication can be harmful). See also ELIZABETH<br />
ANDERSON, VALUE IN ETHICS AND ECONOMICS (1993) (commodified sex has negative influences on<br />
gratuitous sex); Elizabeth Anderson, Is Women’s Labor a Commodity?, 19 PHIL. & PUB. AFF. 71 (1990).<br />
33 See also Bernstein, supra note [x], at 93 (“Radical feminists usually have argued that legalization is the<br />
state’s official endorsement and the ultimate patriarchal expression of ‘the traffic in women.’”); Mgbako &<br />
Smith, supra note [x], at 1178 (“The antiprostitution feminist camp characterizes prostitution as an<br />
exploitative institution of patriarchy, a form of sexual slavery and violence against women, and therefore a<br />
violation of women's rights.”).<br />
34 [work on this footnote: Add footnote on abolition, trafficking, slavery as intentional metaphor.] See<br />
supra note [x] [distinguishing procurement, delivery, punishment of consumer]<br />
35 In addition to MacKinnon, Pateman, and Barry, see also Mary Ann Becker, A Review of The Prostitution<br />
of <strong>Sex</strong>uality: The Global Exploitation of Women (reviewing Kathleen Barry), 52 DEPAUL L. REV.<br />
1043, 1044-45 (2003) (“ while pornographic media are the means of sexually saturating society, while rape<br />
is paradigmatic of sexual exploitation, prostitution, with or without a woman's consent, is the institutional,<br />
economic, and sexual model for women’s oppression.”);<br />
36 [add cite]; see also Mary Joe Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), 105<br />
HARV. L. REV. 1045, 1059 (1992) (“The arguments that sex workers are making to assimilate their work<br />
into the wage market appeal to a sexualized femininity that is something other than a choice between<br />
criminalized and maternalized sex or a choice between terrorized and maternalized sex.”).<br />
37 Bernstein, supra note [x], at 112. For instance, COYOTE claims that open markets for sex subvert<br />
gender roles, in which some women are socially slotted and raised to be “good girls.” On the other hand,<br />
“there is nothing transgressive about one who has been socially born and raised to be a ‘bad girl’ and<br />
remaining one.” Id. at 112.<br />
38 This argument has a long pedigree, dating back to nineteenth-century gender activists. See, e.g., [add<br />
cites]; PATEMAN, supra note [x], at 123 (“The husband’s conjugal right is the clearest example of the way<br />
in which the modern origin of political right as sex-right is translated through the marriage contract into the<br />
right of every member of the fraternity in daily life.”); Prabha Kotiswaran, Wives and Whores: Prospects<br />
for a Feminist Theory of Redistribution, in SEXUALITY AND THE LAW: FEMINIST ENGAGEMENTS (Carl F.<br />
Stychin & Vanessa E. Munro eds.,).<br />
39 Gayle Rubin, The Traffic in Women [add full citation]. More subtly, Martha Nussbaum observes that<br />
“most cultures contain a continuum of relations between women and men (or between same-sex pairs) that<br />
have a commercial aspect—ranging from the admitted case of prostitution to cases of marriage for money,<br />
going on an expensive date where it is evident that sexual favors are expected at the other end, and so<br />
forth.” Nussbaum, supra note [x], at 700. But see Nancy Fraser, Beyond the Master/Subject Model:<br />
Reflections on Carole Pateman’s <strong>Sex</strong>ual Contract, 37 SOCIAL TEXT 173, 176 (1991) (“Whereas the<br />
marriage contract involves the withdrawal of major aspects of social reproduction from the cash nexus,<br />
wage labor, prostitution, and ‘surrogacy’ are precisely market transactions.”).<br />
9
all heterosexual women “work” for sex. 40 Still others root their support for sex markets<br />
in liberalism, making agency arguments that women should have the ability to determine<br />
their own trade-offs after discerning and evaluating their options. 41 In fact, one<br />
commentator finds that, ironically, prostitution may be the first time some women feel<br />
empowered to refuse sex. 4243 Those who embrace what they conceive of as erotic<br />
autonomy criticize criminal law for labeling sex workers as sex offenders, despite the<br />
consent of both parties. 44 In this sense they invoke Lawrence-like analyses over the<br />
scope of sexual autonomy and what the state should criminalize. 45 Most recently, some<br />
advocates for transactional sex have made arguments from the “demand” side, pointing<br />
out that sex markets may be the only chance that the disabled and other sexually<br />
marginalized groups have for non-auto erotic sex. 46 Finally, some make antiexceptionalism<br />
arguments, that professional sex is just like any other form of labor and<br />
should be respected and regarded as such.<br />
Of course, these arguments are not mutually exclusive, and there is significant<br />
overlap. In particular, erotic autonomy overlaps with labor discourse. The remainder of<br />
this paper will explore the discourse of professional, commodified sex as legitimate labor.<br />
B. The Labor Claim<br />
40<br />
Indeed, this argument is not limited to heterosexual women, or to women. As argued above, many<br />
people “trade” sex in relationships, short-term and long-term. See supra notes [x] and accompanying text<br />
(rejecting terms sex trade and sex work as failing to distinguish adequately professional sex work between<br />
the negotiations many make for sex). [Note heteronormativity of this claim].<br />
41<br />
[add Nussbaum here, too; from Anca: Laura Kipnis's "Against Love" might be a nice additional touch to<br />
the idea that all women "work at it [sex]" because her argument is that normative, marital love and sex is a<br />
lot of everyday work and an ongoing commerce of affect] One commentator contends that feminist<br />
opposition to sex work flies in the face of feminism’s insistence on women’s agency in other matters<br />
regarding their bodies:<br />
This hypocrisy is evident in the abortion debate. Many feminists champion a woman’s right to<br />
choose—as long it is abortion that is being discussed. But let someone suggest that women have a<br />
right to sell their bodies and suddenly these women no longer advocate choice. Prostitution must<br />
be the same issue for feminists as abortion. It is the right to choice. Both involve the right of a<br />
woman to control what happens to her body. If one claims self-ownership as the basis of a<br />
woman's right to choose an abortion, then the logical implication of such ownership cannot be<br />
limited to abortion. If a woman owns her body, she should be able to choose to do with it what she<br />
will.<br />
Norma Jean Almodovar, For Their Own Good: The Results of the Prostitution Laws as Enforced by Cops,<br />
Politicians and Judges, 10 HASTINGS WOMEN’S L.J. 119, 122 (1999).<br />
42<br />
43<br />
Prabha Kotiswaran notes: “the feminist critique that this work position is undertheorized, with the result<br />
that it falls back on the liberal discourse around choice, consent, work, and the market.” Kotiswaran, supra<br />
note [x], at 581 (citations omitted).<br />
44<br />
[ In this configuration, consent becomes a crucial component of analysis. [Law &<br />
Nussbaum notes from intro] See also Almodovar, supra note [x], at 123 (“For mutually agreed upon<br />
financial transactions it should not matter to anyone outside the relationship how many times sexual<br />
activity occurs, or with how many sexual partners.”); Law, supra note [x], at 526 (“The exchange of sexual<br />
services for money is the only form of consensual adult sexual activity that is systematically subject to<br />
criminal sanctions in the United States at the end of the twentieth century.”).<br />
45<br />
[add citations and analysis]<br />
46<br />
See infra notes [x] and accompanying text.<br />
10
Grounded in labor discourse, the term sex “worker” originated in the 1970s to<br />
legitimate professional sex in the face of the then-dominant feminist thought that objected<br />
to prostitution as exploitation and sought to abolish it and “rescue” the women who did<br />
it. 47 Unlike earlier reform efforts, based on tolerating prostitution either to preserve<br />
men’s sexual privilege or to end women’s victimization at the hands of law enforcement,<br />
the new discourse of sex as labor emerged from the prostitutes’ rights social movement. 48<br />
<strong>Sex</strong> work emerged in this context as “a term that suggests we view prostitution not as an<br />
identity—a social or psychological characteristic. . ., often indicated by ‘whore’—but as<br />
an income-generating activity or form of labor.” 49 Elizabeth Bernstein concurs: “Unlike<br />
the word ‘prostitute,’ with its connotations of shame, unworthiness or wrongdoing, the<br />
terms ‘sex-worker’ tries to suggest an alternative framing that is a ‘normalization of<br />
prostitutes as ‘service workers’ and ‘care-giving professionals.’” 50 More recently, sex as<br />
labor advocates also derive their claim from human rights discourse, which guarantees<br />
choice of occupation as a right. 51<br />
Others embrace the term sex worker to invoke other associations. For instance,<br />
influential theorist Kamala Kempadoo endorses “sex worker,” but analytically substitutes<br />
“gender” for “sex.” In her view, the denomination sex worker “insists that working<br />
women’s common interests can be articulated within the context of broader (feminist)<br />
47<br />
The term is attributed to Carol Leigh, an activist for prostitutes and member of COYOTE. Oliver J.<br />
McKinstry, We’d Better Treat Them Right: A Proposal for Occupational Cooperative Bargaining<br />
Associations of <strong>Sex</strong> <strong>Work</strong>ers, 9 PA. J. LAB. & EMP. L. 679 n.18 (2007). Many credit the 1975 strike of<br />
prostitutes in France as the start of a movement to conceive of sex bargainers’ rights in the language of<br />
labor. Sylvia Law, however, documents an earlier strike in Hawaiian during World War II, in which<br />
prostitutes used their alliances with the military to resist and renegotiate legal restrictions and police<br />
surveillance. Law, supra note [x], at [pincite]. [check: were they women of color?] For a comparison of<br />
relative weakness of prostitute rights movement with more successful contemporaneous gay and abortion<br />
rights movements, see generally Ronald Weitzer, Prostitutes Rights in the United States: The Failure of a<br />
Movement, 32 SOCIOLOGICAL Q. [pincite] (1991).<br />
See, e.g., [McKinstry, id. (historicizing movement); [add others]. Siobhan Brooks contends the sex labor<br />
movement picked up again in 1990s because of the influx of women into the industry. BROOKS, supra note<br />
[x], at 2. See also [find this cite] (critiquing initial exclusion of global south from discussions); Larson,<br />
supra note [x] (describing how movement transmuted over time); Mgbako & Smith, supra note [x].<br />
48<br />
[add oppositional consciousness stuff] Earlier defenses of prostitution tended to be grounded in either<br />
impulses to “rescue” prostitutes from “fallen lives” or to tolerate prostitution as a socially necessary outlet<br />
for men’s sexual drives. [add cites] As activist Carol Leigh says, “The current movement includes a<br />
recognition of the rights of prostitutes to autonomy and self-regulation.” Carol Leigh, A First Hand Look<br />
at the San Francisco Task Force Report on Prostitution, 10 HASTINGS WOMEN’S L.J. 59 (1999).<br />
49<br />
GLOBAL SEX WORKERS: RIGHTS, RESISTANCE AND REDEFINITION 3 (Kamala Kempadoo & Jo Doezema<br />
eds., 1993).<br />
50<br />
Bernstein, supra note [x], at 111 [Check this quote: McKinistry fn 18???].<br />
51<br />
Interestingly, both sides use human rights frameworks. [add cites to main human rights instruments on<br />
this] While sex work advocates urge a right to work and privacy guarantees, abolitionists invoke a<br />
different set of norms against sexual discrimination, state-sanctioned patriarchy, and rights to be free from<br />
inter-personal violence. The dominant human rights agencies have taken a strong stand against forced<br />
prostitution and trafficking, but have largely remained neutral on the question of prostitution itself. See,<br />
e.g., Nussbaum, supra note [x], at 710 (noting human rights organizations have focused attention on forced<br />
sexual labor and also on alleviating material conditions that give rise to prostitution); A Modern Form of<br />
Slavery: The Human Rights Watch Global Report on Wome’s Human Rights 196-273 (1995; [add other<br />
cites to International Covenant on Civil and Political Rights; Convention on the Elimination of All Forms<br />
of Discrimination against Women; Convention for the Suppression of Traffic in Persons and the<br />
Exploitation of the Prostitution of Others].<br />
11
struggles against the devaluation of women’s work and gender exploitation within<br />
capitalism.” 52 Relatedly, others urge the term “sex worker” to call attention to the<br />
multiplicity of people—men, women, heterosexual, homosexual, transgender, etc.—who<br />
sell sex. 53 Thus some adopt the term sex worker to invoke identitarian or coalitional<br />
discourses and critiques. Overwhelmingly, though, those who urge the sex worker rubric<br />
do so to embrace a discourse of transactional sex as legitimate labor.<br />
Conceptualizing commodified sex as work is urged as one way to combat the very<br />
real ills experienced by many who transact sex—an alternative to both abolition and<br />
ongoing criminalization. This argument emphasizes that sex work should be regarded and<br />
regulated as no different from any other labor. For instance, the World Charter for<br />
Prostitutes’ Rights calls for the “decriminaliz[ation of] all aspects of adult prostitution”<br />
and the regulation of “third parties according to standard business codes.” 54 Indeed, the<br />
legalization movement is a self-proclaimed labor movement. The website for the Live<br />
Nude Girls Unite! documentary takes care to proclaim in its first sentence: “This site is<br />
about a labor film.” 55 Similarly, Monica Moukalif concludes that “the issues that affect<br />
sex work are essentially labor issues common to all marginalized workers.” 56 Proponents<br />
invoke other comparisons to conventional labor as well. “Both the factory worker and<br />
the prostitute survive hard physical labor by separating who they are from what they do.<br />
Just as the person on the assembly line in a factory separates his personality from his<br />
hands and feet and the part of the brain that makes them work, so the willing prostitute<br />
separates her personality from her sexual equipment.” 57 Hence, Moukalif and others give<br />
clear statements of the complete claim of commodified sex as labor.<br />
Yet, within the professional sex as labor camp there is a deep split that has gone<br />
largely unnoticed. Universally, the sex as labor camp urges decriminalization of<br />
professional sex, contending that [check this quote] “criminalization results in<br />
stigmatization, criminalization, and punishment.” 58 They observe that the long-standing<br />
52<br />
KEMPADOO, supra note [x], at 8. See also Tinsman, supra note [x], at [add pincite] (contending sex is<br />
primary way women are exploited in all forms of work).<br />
53<br />
McKinstry, supra note [x], at 683; [check Cabezas at 81].<br />
54<br />
World Charter for Prostitutes’ Rights; International Committee for Prostitutes’ Rights February 1985,<br />
Amsterdam, reprinted in 37 Social Text 183 [hereinafter World Charter fro Prostitutes’ Rights]. In fact,<br />
Sylvia Law concludes, “With startling consistency, the prostitutes' rights movement calls for the<br />
decriminalization of all aspects of prostitution.” Law, supra note [x], at 553 (footnote omitted).<br />
55<br />
[cite website].<br />
56<br />
Monica R. Moukalif, No Evil: Applying a Labor Lens to Prostitute Organizing, 20 HASTINGS WOMEN’S<br />
L.J. 253, 258 (2009).<br />
57<br />
Michael Conant, Federalism, the Mann Act, and the Imperative to Decriminalize Prostitution, 5<br />
CORNELL J.L. & PUB. POL’Y 99, 100 (noting differences between sex bargainers and other workers,<br />
including substance abuse and psychological effects) [keep that parenthetical?]; see also Nussbaum, supra<br />
note [x] (rehearsing arguments of how prostitution is similar to and different from other forms of labor).<br />
58<br />
[add check citation]. [decide whether here or in regulation description: Prabha Kotiswaran points out<br />
how criminal, prohibitory laws have become fetishized by both sides of the decriminalization debate.<br />
“While the normative status of sex work remains deeply contested, abolitionists and sex work advocates<br />
alike display an unwavering faith in the power of criminal law; for abolitionists, strictly enforced criminal<br />
laws can eliminate sex markets, whereas for sex work advocates, decriminalization can empower sex<br />
workers.” Kotiswaran, supra note [x], at 579. In sum, contra Foucault’s injunctions against juridical<br />
understandings of modern regulation, “Both camps thus view the criminal law as having a unidirectional<br />
repressive effect on the sex industry.” Kotiswaran, supra note [x], at 613. See also Nussbaum, supra note<br />
12
criminalization of markets for sex has invited organized crime, led to police corruption,<br />
and heightened the vulnerability and isolation of those who bargain for sex. 59 Not only is<br />
prostitutes’ labor criminalized, but often this serves as an obstacle to reporting sexual<br />
assaults as well as to enforcing the contracts for transactional sex they consensually enter.<br />
But, while unanimously endorsing lifting criminal bans on professional sex, sex as labor<br />
advocates disagree whether there is a further role for the state in regulating this market.<br />
Frequently, this is cast as a disagreement between those who limit their arguments to<br />
calls for decriminalization and those who urge full legalization and regulation. 60<br />
Overlooked, though, is the extent to which these positions actually embed contradictory<br />
views of sexual labor itself.<br />
1. Decriminalization<br />
Emblematic of the decriminalization without regulation position, two<br />
commentators insist, “<strong>Sex</strong> workers’ ability to control their lives is most undermined by<br />
state regulations that criminalize, penalize, stigmatize, and therefore isolate sex workers,<br />
rendering them unable to counter harassment and abuse.” 61 In this view, criminalization<br />
then leads to further vulnerability, and those who might like to pursue other options find<br />
they are largely stuck in sex markets. 62 In its strongest form, decriminalization<br />
arguments adopt a sort of libertarian stance, embracing decriminalization but opposing<br />
full legalization, which would entail regulation and protectionism. 63 For instance, the<br />
World Charter for Prostitutes’ Rights insists that “It is essential that prostitutes can<br />
provide their services that are absolutely determined by themselves and no one else.” 64<br />
Norma Almodovar puts the case even more bluntly: “Decriminalization would . . . repeal<br />
all existing criminal codes applying to non-coercive adult commercial sex activity. It<br />
would require no new legislation to deal with harmful effects of prostitution, as there are<br />
already plenty of laws which cover problems outside the realm of personal choice.” 65<br />
“From an activist perspective the term legalization as applied to prostitution usually<br />
refers to a system of criminal regulation and government control of prostitutes. In this<br />
system, certain individuals or specific prostitution practices (work venues, etc.) are<br />
explicitly recognized and ‘legitimized’ by law, and practices or individuals outside those<br />
[x], at 708 (“Criminalization and regulation are not straightforwardly opposed; they can be closely related<br />
strategies.”).<br />
59<br />
[is this a cite from Macklin?] [add Barry on Contagious Diseases Act and how it split prostitutes from<br />
their communities by means of ascribing a separate identity]<br />
60<br />
[Decriminalization/legalization split]<br />
61<br />
Mgbako & Smith, supra note [x], at 1193. Elsewhere Mgbako and Smith contend that “Illegality renders<br />
sex workers dependent upon pimps, brothel owners, clients, and police officers.” Id. at 1206.<br />
62<br />
[discuss exit]<br />
63<br />
See, e.g., Fischer, supra note [x], at 526 (equating regulations and restrictions with “condemnation” of<br />
prostitutes).<br />
64<br />
World Charter 183<br />
65<br />
Almodovar, supra note [x], at 132 (emphasis added). Anne McClintock observes: “A recent call has<br />
gone up from some quarters for the legalization rather than the decriminalization of sex work. But most<br />
prostitutes regard legalization as legalized abuse. Despite its benign ring, legalization places prostitution<br />
under criminal instead of commercial law, where it is tightly curtailed by the state and administered by the<br />
police.” McClintock, supra note [x], at 4 (emphasis in original).<br />
13
oundaries are illegal.” 66 The International Prostitute Rights organization is more<br />
specific: “There should be no law which implies systematic zoning of prostitution.<br />
Prostitutes should have the freedom to choose their place of work and residence.” 67<br />
Feminist theorist Anne McClintock concurs: “A central tenet of the prostitution<br />
movement is the demand that sex workers be given the right to exchange sexual services<br />
on their terms and on their conditions, not on the terms of the state, the police, pimps,<br />
male managers, or clients.” 68 Of course, such insistence on complete workplace<br />
autonomy is unrecognizable to most working adults. But, for decriminalization<br />
advocates, this strong libertarian position is justified because of the nature of the “work.”<br />
Implicit in these strong-form claims for a completely deregulated sex market is<br />
the privacy ideology liberalism often associates with sex. Although much-criticized, the<br />
legal protection for women’s sexual autonomy that emerged in the 1960s and 1970s was<br />
grounded in constitutional privacy doctrine. 69 Cultural and social norms of sex as part of<br />
private and not public life supported this, as well. 70 Liberalism similarly promotes<br />
autonomy, freedom, and choice within this sphere, construing these as the definitive<br />
principles that guarantee sexual and reproductive rights. 71 The final piece of the<br />
liberalism troika, consent, plays a similarly fundamental role in constructing sexual rights<br />
and their boundaries. 72 From this ideology some advocates derive a strong, intriguingly<br />
66 Leigh, supra note [x], at 60.<br />
67 http://www.bayswan.org/ICPRChart.html. They also oppose public health regulations of sex work.<br />
“Since health checks have historically been used to control and stigmatize prostitutes, and since adult<br />
prostitutes are generally even more aware of sexual health than others, mandatory checks for prostitutes are<br />
unacceptable unless they are mandatory for all sexually active people.” World Charter 184.<br />
68 Anne McClintock, 37 SOC. TEXT (1993)], 2 (emphasis in original). McClintock also claims, “Removing<br />
sex workers fundamental right to choose—whether to work, how to work, when to work and where to work<br />
is a flagrant infringement of basic working rights, their integrity, their humanity, not a universal and<br />
inherent feature of the sexual exchange.” Id. at 6.<br />
69<br />
70<br />
[Add cites including Olsen and MacKinnon critiques of this.] [add a sentence on how markets usually<br />
public while sex private]<br />
71<br />
[add more citations on sexual autonomy and con law] See, e.g., Nussbaum, supra note [x], at 706<br />
(arguing “the issue of choice is the really important one”). [move: Not surprisingly, many have urged that<br />
the dominance of choice arguments in the feminist defense of abortion and the rejection of choice in<br />
prostitution is nothing short of hypocrisy. See, e.g., Almodovar, supra note [x], at 122 (footnote omitted);<br />
Cynthia Chandler, Feminists as Collaborators and Prostitutes as Autobiographers: De-Constructing an<br />
Inclusive Yet Political Feminist Jurisprudence, 10 HASTINGS WOMEN’S L.J. 135, 136 (1999) (urging<br />
feminist theory should shift focus from “either women’s liberty and choices or the dominating constraints<br />
on women’s lives, to looking at the intersection of both agency and domination on their lives”) (“Many<br />
feminists champion a woman’s right to choose—as long as it is abortion that is being discussed.”).]<br />
72<br />
[integrate with consent footnote above???] [another example of a consent based norm is why workers<br />
should be able to practice whites only, men only sexual work] [David Law point: is erotic capital more<br />
generally monetizable??? As in family court decisions where they monetize a degree, even if the person is<br />
not using it: here, you could be earning x amount based on your erotic capital!] Sylvia Law uses consent to<br />
impose some interesting limits on the professional sex as labor position. While interviewing welfare rights<br />
organizers in Nevada, Law learned that some of them feared that if sex work were fully legalized, the<br />
government would require it as a condition of receiving need-based entitlement programs. Law grounded<br />
an exemption of sex work from universal requirements to labor in liberalism:<br />
A society could address this paradigm conflict by saying that the norm of authentic consent,<br />
generally applicable to sexual relations, should control and that people should not be forced to<br />
engage in commercial sex, as a condition of subsistence. Even if commercial sex is legal, many<br />
women regard it as inconsistent with their deepest sense of self and inconsistent with moral and<br />
14
libertarian position: “A woman’s body belongs to herself and not to the government.<br />
The individual’s rights to own, use and enjoy her body in any manner that she deems<br />
appropriate, as long as she does not violate the rights of others has long been protected in<br />
this country.” 73 Similarly, the International Prostitute Rights charter “affirms the right of<br />
all women to determine their own sexual behavior, including commercial exchange,<br />
without stigmatization or punishment.” 74 Still others register their concerns in an<br />
explicitly feminist register. In language that echoes that of the strongest abolitionists,<br />
scholar Anne McClintock insists, “Legalizing female prostitution serves only to put<br />
women more firmly under male control.” 75 This libertarian view of sex work thus<br />
embraces a hybrid position, often urging commodified sex as labor while simultaneously<br />
claiming the legal and social privacy that sex often brings. In sum, professional sex is<br />
just like any other labor in that it should not be subject to criminal bans and should<br />
instead be a matter of individual choice, but, because it is sex, it should be exempt from<br />
any government regulation or supervision—including zoning, licensing, or public health<br />
protocols. It operates, in effect, as sex, or erotic, exceptionalism. 76<br />
2. Legalization<br />
Other sex work advocates, though, urge not only decriminalized, but fully<br />
legalized and regulated markets for sex. This camp views sex workers as deeply<br />
vulnerable to exploitation and risk and envisions an active role for the state in regulating<br />
sex markets and workplaces. “Like traditional prostitutes, women working in the legal<br />
sex industry have been treated as though they are not entitled to the same legal<br />
protections as other ‘socially accepted’ workers.” 77 Another commentator concurs,<br />
religious principles. We should recognize that choice with respect to sexual relationships is so<br />
integral to individual identity and integrity that sex should not be compelled, even if it could<br />
provide subsistence to a person who would otherwise depend on the state.<br />
Law, supra note [x], at 590. Crucially, Law notes that denying the requirement may reinvigorate sex<br />
exceptionalism/Observing this exceptionalist move, Law then asks the crucial question: “But why should<br />
personal choice be given such high value in relation to sex, if it is denied in relation to many other issues of<br />
profound and legitimate importance to individuals?” Law, supra note [x], at 590 (emphasis added). See<br />
also Baldwin, supra note [x], at [pincite and add parenthetical quote).<br />
73<br />
Almodovar, supra note [x], at 132. Discussing the California Constitution, Almodovar notes it<br />
“explicitly grants a right to privacy, and although this right is not absolute, it should be interpreted to say<br />
that as long as no coercion is involved, any private consenting adult activity is none of the government’s<br />
business. But this is apparently not the case when private activity involves money!” Almodovar , supra<br />
note [x], at 129. See also<br />
74<br />
[get the cite from Law]<br />
75<br />
McClintock, supra note [x], at 4.<br />
76<br />
[elaborate my own use of sexuality exceptionalism and how this is different] Several philosophers,<br />
including Martha Nussbaum, have rehearsed the complexities of the exceptionalist question, debating<br />
whether sex makes work different. See, e.g., Nussbaum, supra note [x], at 694 (“If a producer of opera<br />
should take the position that singers should not be paid, on the grounds that receiving money for the use of<br />
their talents involves an illegitimate form of commodification and even market alienation of those talents,<br />
we would think that this producer was a slick exploiter, out to make a profit from the ill treatment of<br />
vulnerable and impressionable artists.”) (footnote omitted); [add others on how is it different, etc.]<br />
77<br />
Carrie Benson Fischer, Employee Rights in <strong>Sex</strong> <strong>Work</strong>: The Struggle for Dancers’ Rights as Employees,<br />
14 LAW & INEQ. 521, 551 (1996). See also Bindman & Doezema, (“[T]heir vulnerability to human and<br />
labour rights violations is greater than that of others because of the stigma and criminal charges widely<br />
15
“organizing around decriminalization is part of organizing for better occupational health<br />
and safety.” 78 Less tied to sex exceptionalism than libertarians, these advocates view<br />
professional sex work as not meaningfully different from other forms of marginalized<br />
labor. For instance, Monica Moukalif “constructs a margins-oriented labor lens and then<br />
applies it to sex labor discourse,” in the process showing how “[p]rostitutes are<br />
organizing and advocating in ways that could be beneficial to all marginalized<br />
workers.” 79 This camp thus urges assimilating sex work into our existing labor and<br />
employment law regime.<br />
Influential legal feminists Sylvia Law, Jane Larson, and Martha Nussbaum all<br />
embrace versions of this vulnerable populations/assimilationist view. 80 For instance, Jane<br />
Larson views prostitution as a “laboratory” to determine “what makes certain voluntary<br />
labor so dangerous or so exploitative as to violate the worker’s human rights?” 81 Sylvia<br />
Law makes a strong protectionist case when she argues that not only should criminal<br />
prohibitions be repealed, but “legal remedies and programs to protect commercial sex<br />
workers from violence, rape, disease, exploitation, coercion and abuse should be<br />
enhanced.” 82 Finally, Martha Nussbaum combines an assimilationist approach with the<br />
straightforwardly liberal feminist emphasis on choice to make a case for legalized sex<br />
work as a constrained or bounded autonomy claim. 83 In sum, contrary to erotic<br />
exceptionalists, this camp contends sex work is truly no different than other forms of<br />
marginalized labor. 84 Rebelling against the privacy rubric libertarians/exceptionalists<br />
invoke to cloak labor that is sexual, this camp advocates full legalization and assimilation<br />
of sex work into our current regulatory regime.<br />
Thus, while both camps view the labor framework as a way to access both<br />
legitimacy and power for workers in the desire/sex industry there is a split, a<br />
contradiction even, within the movement. For some, “worker” empowerment stems from<br />
full legalization. Seeking to intervene in the oppression and exploitation of a classically<br />
vulnerable population, they envision the full assimilation of sex workers into the labor<br />
and employment regulatory regime. In contrast, erotic exceptionalists manifest a deeply<br />
libertarian view, embracing the labor lens from a classical freedom of contract<br />
perspective, in which the state has little role to play beyond enforcement. While modern<br />
labor contracts are intensely regulated, to libertarians, the sexual contract remains<br />
exceptional. The libertarian camp finds in constitutional and social sexual privacy norms<br />
and liberalism’s emphasis on autonomy and consent support for the classic freedom of<br />
contract position—that the state should not intervene in otherwise voluntary<br />
agreements./This classical libertarianism, unrecognizable to modern democratic<br />
marketplaces, finds support in the sexual nature of contract, which remains exceptional.<br />
attached to sex work.”); <strong>Adrienne</strong> Cuoto, [add cite] 48 (If not viewed as criminals, sex workers are at the<br />
very least considered to maintain “deviant lifestyles, roles and identities.”).<br />
78 Moukalif, supra note [x], at 271.<br />
79 Moukalif, supra note [x], at 253.<br />
80<br />
81 Larson, supra note [x], at 676.<br />
82 Law, supra note [x], at 524.<br />
83 [add a quote in here] Philosopher Martha Nussbaum combines the vulnerability lens with an autonomy<br />
analysis. Martha C. Nussbaum, “Whether from Reason or Prejudice”: Taking Money for Bodily Services,<br />
27 J. Legal Stud. 693, 693-94 (1998).<br />
84 Mgbako & Smith, supra note [x]; [add others].<br />
16
In sum, exceptionalists take a libertarian perspective, while assimilationists embrace a<br />
contradictory, deeply regulatory stance./In sum, erotic libertarians, insisting on privacy,<br />
claim it’s just like any other consensual sexual act. Labor assimilationists, though, say<br />
it’s just like any other work. Just like sex or just like work—that is the underlying<br />
question.<br />
This latent dichotomy between assimilationist and exceptionalist discourses of<br />
professional sex undergirds the remainder of this paper. First, Section II takes seriously<br />
the assimilationist claim that “sex is like any other work.” As facially persuasive as this<br />
argument is to many progressives, it rests on the idea of a monolithic workplace subject<br />
to monolithic regulation. In contrast, what this next Section demonstrates is that modern<br />
workplaces, and work, vary drastically, and are subject to diverse regulatory regimes.<br />
Law regulates work differentially, and it is unclear which model professional sex<br />
advocates seek to invoke. As much as advocates urge us to treat professional sex as any<br />
other labor, sex markets have distinctive characteristics that it would be irresponsible to<br />
ignore in crafting regulatory policy. Nor is sex work itself monolithic; rather it exhibits<br />
vastly different working conditions and risks. Section III will answer assimilationists’<br />
concerns with a set of proposals that will hopefully address the specificity of sex work,<br />
while also taking up the erotic exceptionalists’ claims that because the labor is sexual, it<br />
should be outside of and beyond regulation.<br />
II. PARADIGMS OF LABOR & ITS REGULATION<br />
[Readers: I am well aware from the employment/labor law posse at Wash U that this<br />
section does not get the regulatory structure for employment and labor right. I ask that<br />
you read this section with an eye towards its conceptual template, which sets up the next<br />
section.]<br />
Legal scholar Audrey Macklin characterizes immigrant labor as the “four D’s”:<br />
difficult, dirty, dangerous, and degrading. [Add Macklin quote.] The latter three she<br />
contends also characterize much sex for hire. <strong>Sex</strong> workers often work in unsanitary<br />
workplaces: dancers complain of dirty poles, stage floors, and dressing rooms; prostitutes<br />
often work in unclean hotels, brothels, or worse, on the street, in alleys, or in cars. Even<br />
more so than “dirty” however, charges of danger and degradation pervade arguments to<br />
legalize and regulate sex bargaining as work. 85 <strong>Sex</strong> workers have high rates of assault,<br />
from customers, both employers and other employees, and even from their intimate<br />
partners. In addition, as noted in Section II, many sex workers complain of degrading<br />
work conditions, ranging from sexual harassment (again, from customers, employers, and<br />
other employees) to racial discrimination.<br />
This Section explores these concerns, which are often invoked within the “just<br />
work” discourse. As described in Section I, above, there are distinct discourses of<br />
85 Some contend the work is also “difficult.” Prostitutes who work in brothels sometimes have to work<br />
twelve to fourteen hour shifts, and dancers spend eight hours or more in high heels, which can cause<br />
injuries to their feet. Some commentators have also noted the exhausting nature of the emotional labor<br />
much sex work requires. See infra notes [x] and accompanying text. Still, this concern does not seem to<br />
take the priority that safety, discrimination, and, to a lesser extent, “sanitation” does.<br />
17
legality and labor in different sectors of the desire industry. One invocation of sex for<br />
hire as “just work” is, of course, to urge the decriminalization of sex markets, which at<br />
the most basic level would give sex workers the ability to enforce their contracts.<br />
Currently, not only customers, but also landlords, hotels, and other third parties can evade<br />
their obligations with sex workers because these contracts are illegal. 86 In addition,<br />
because their activities are criminalized, sex traders are under constant surveillance by<br />
the police, who not only arrest them, but also sexually and economically exploit them. 87<br />
(In this sense, many have contended that the police operate much like pimps, but with the<br />
shield and force of law. 88 ) Thus, the ability to work legally and enforce the basic terms<br />
of their contracts would ameliorate some of the fundamental vulnerability and<br />
exploitation sex bargainers experience. Made in this register, freedom of contract, the<br />
claim that sex for hire is “just work” seeks its legitimization, but in the language of the<br />
sexual libertarianism described in Section I. These invocations of sex as labor actually<br />
want to exceptionalize the sexual part, keeping it a “private” and unregulated activity,<br />
rather than a more conventional labor relation.<br />
While, as Section I noted, some invocations of the “just work” discourse are for<br />
libertarian aims, many seek full legalization and regulation of sex markets./But those who<br />
envision not just decriminalization but full legalization of sex markets anticipate a starkly<br />
different, even oppositional, end state. Their invocation of sex as “just like any other<br />
work” is really a recognition claim, that sex bargainers should be considered legitimate<br />
laborers with the protections of the “applicable legal standards relating to labor rights.” 89<br />
This Section explores this set of claims within the context of the relevant state and federal<br />
laws. It breaks Macklin’s “four D’s” down into their recognizable regulatory forms—dirt<br />
and danger, typically addressed by workplace health and safety regulations and workers’<br />
86 Sylvia Law observes:<br />
For some women, the laws against pimping represent a serious burden on personal family<br />
relations. When women who work in commercial sex have voice in the development of public<br />
policy they reject laws making it a crime to live “off the earnings of prostitution.” Many women<br />
work precisely to support their children, parents or friends. Other women who sell sex for money<br />
prefer to have a third person mediate the transaction. That mediation can be benevolently<br />
protective or exploitative. Laws against pimping do not distinguish among the worker;s child,<br />
mom, protective madam or an exploitative sex slaver. Anyone who derives financial benefit from<br />
a commercial sex worker is a criminal.<br />
Law, supra note [x], at 571 (footnote omitted). See also Kotiswaran, supra note [x]; [cite others].<br />
87 [Find the case where rape was charged when the police officers identify themselves as law enforcement<br />
after sexual services have been rendered. They thus consume the service, refuse to pay, and arrest the<br />
bargainer. Is this MacKinnon?] Chancer, supra note[x], at 156 (“Not infrequently, the rapist was a copy:<br />
as agents of social control, police know their actions in relationship to prostitutes are unlikely ever to be<br />
taken seriously, less likely still to be constructed as examples of ‘police brutality’ and punished.”) (footnote<br />
omitted); Leigh, supra note [x], at 69 (“Many women complain of vice officers fondling them or exposing<br />
themselves before arresting them.”); McClintock, supra note [x], at 4 (“Police . . . are on record almost<br />
everywhere for raping prostitutes in vans and precincts, demanding ‘freebies,’ humiliating, harassing, and<br />
hounding the most vulnerable women on the streets.”). Some call for explicit non-enforcement of state<br />
laws at the local level or for implicit deprioritizing. See, e.g., Law, supra note [x], at [pincite] (discussing<br />
San Francisco and New Jersey Task Forces as case studies of local reform); Leigh, supra note [x]<br />
(discussing San Francisco Task Force recommendations to suspend enforcement of state laws against<br />
prostitution and redirecting resources to services for sex workers and enforcing nuisance laws).<br />
88 [add citations]<br />
89 [is this a Macklin quote?].<br />
18
compensation statutes, as well as some collateral tort law on violence, and degradation,<br />
much of which is the province of anti-discrimination law, mainly Title VII, but also the<br />
Americans with Disabilities Act and the Age Discrimination in Employment Act. The<br />
remainder of this Section gives an overview of how health and safety, workers’<br />
compensation, tort, and discrimination law operate. It also briefly summarizes the<br />
guidelines for determining who is an employee, which determines other, crucial benefits<br />
and rights sex bargainers seek. In the end, although the “just work” claim implicitly<br />
suggests a monolithic workplace and set of labor regulations, what the remainder of this<br />
Section reveals is that workplaces are themselves quite diverse and subject to varying<br />
regulation. In sum, the question isn’t whether sex can be work, but, rather, what kind of<br />
work will it be considered?<br />
A.<br />
The sex as labor camp anticipates a host of benefits from legalized status and<br />
regulation, primarily ameliorating the substantive work conditions for sex bargainers. As<br />
an initial matter, at the most basic level, many seek legal recognition of sex workers as<br />
employees, which would entitle them to basic employment benefits, including<br />
unemployment, health insurance, retirement, social security benefits, workers’<br />
compensation, and minimum wage and overtime. 90 Neither prostitutes, whose work is<br />
illegal, nor dancers, whose employers often classify them as independent contractors,<br />
qualify for these benefits under federal and state laws. In addition, the National Labor<br />
Relations Act gives workers classified as employees the right to unionize and collectively<br />
bargain for improved working conditions. Rather than relying solely on the state to<br />
enforce minimal, universal benefits, collective bargaining allows workers to craft terms<br />
and conditions of employment that are tailored to their needs. 91 As Sylvia Law notes,<br />
“One of the most effective ways for commercial sex workers to promote decent working<br />
conditions and protect themselves from violence, abuse, and health and safety hazards, is<br />
to work in a collective context.” 92 Indeed, sex bargainers have sought to unionize in a<br />
variety of contexts, although with little success. 93 Apart from the challenges of<br />
90<br />
Another conceivable benefit claim might be for protection under the Family and Medical Leave Act,<br />
which requires employers to provide workers’ unpaid leave for medical reasons or to care for newborn<br />
children or sick family members. When employees return they must be reinstated in same or equal position<br />
with no loss of accumulated seniority or benefits. Margot Rutman examines the applicability of FMLA to<br />
exotic dancers. She concludes that, even though, “[c]onceivably, the FMLA does apply to exotic dancers,”<br />
because dancers may need more recovery time than other workers because of appearance and physical<br />
requirements of the job, “the overall impact on exotic dancers is not as beneficial as it is in other<br />
environments.” Rutman, supra note [x], at 535-36.<br />
91<br />
Unions have often played a critical role in raising and negotiating over issues of health and safety.<br />
Because they implicate working conditions, safety issues are a mandatory subject of bargaining in<br />
a unionized workplace, and employers are therefore obligated to provide safety information upon<br />
the union’s request. . . . In addition, unions frequently negotiate for improved safety measures, or<br />
alternatively, higher wages to compensate for the risks, through the collective bargaining process.<br />
WORK LAW, supra note [x], at 946.<br />
92<br />
Law, supra note [x], at 598. See also Chun, supra note [x] (advocating unionization as best route to<br />
empowerment for exotic dancers).<br />
93<br />
As detailed in Live Nude Girls Unite! documentary, the Lusty Lady was the first exotic dance club to<br />
successfully unionize. [detail this and other efforts].<br />
19
organizing an itinerant and powerless group of workers, pro-union sex workers even<br />
encounter resistance from unions themselves, which, though desperate for new members,<br />
still often reject sex traders as illegitimate workers. 94 Still, many continue to urge<br />
unionization as sex workers’ best chance to achieve decent working conditions. 95 Thus,<br />
even beyond Macklin’s four-part schema, labor is seen as the first step toward the basic<br />
rights that inure to all workers recognized as employees.<br />
Even more so than basic employee benefits, as Monica Moukalif observes,<br />
“[o]ccupational health and safety is the major organizing point for prostitutes and other<br />
sex labor activists.” 96 The dominant form of “danger” that most risks sex workers’ safety<br />
is violence./One dominant axis of risk that endangers sex workers’ safety is violence.<br />
<strong>Sex</strong> workers have significantly higher rates of assault, rape, and even murder than other<br />
workers. [add quote and citations 97 ] Dancers are subject to sexual assault and other<br />
battery, on the stage, in private lounges and rooms, and even leaving work, in parking<br />
lots or on the street. 98 Even in public parts of clubs, “women are often subject to verbal<br />
harassment and unwanted sexual touching,” which can be a precursor to violence and<br />
make them feel unsafe in their workplaces. 99 Masseuses similarly may be subject to<br />
violence from customers. Finally, the physical assaults, robberies, rapes, and even<br />
murders of prostitutes, whether street-walkers, outcall workers, or brothel or private<br />
bargainers are well-documented. [fill in statistics] Importantly, physical and sexual<br />
assault comes from not only customers and third parties but also club owners, pimps, and<br />
other employees, e.g., bouncers, bartenders, and servers. 100 The statistics bear out that<br />
94 Chun, supra note [x], at [pincite] ([add quote re union bias against sex workers]); Law, supra note [x], at<br />
599 (“[w]here women have sought to organize a union, they have been rebuffed by established labor<br />
organizations.”); Rutman, supra note [x], at 553, 554 (“Exotic dancers, because they are a stigmatized<br />
group of women, often have problems finding outside labor support or unions that will allow them to<br />
join.”).<br />
These authors also describe challenges to organizing sex workers. [add citations regarding itinerant, antiunion,<br />
etc] “As a result of their lack of power to force better working conditions through<br />
the court system, exotic dancers have begun attempts at unionizing so that they can<br />
collectively bargain with their employers.” Rutman, supra note [x], at 553 (footnote<br />
omitted) then describes problems with unionization, pessimistic 553-54, including<br />
difficulty in organizing, retaliation, preference to remain independent contractors fn 352<br />
(voted down union), rejection by unions<br />
95 Others are more skeptical, however. Margot Rutman observes that in the first successful effort to<br />
unionize a dance club, the Lusty Lady, the dancers got 1 sick day and 1 holiday. “The union contract is<br />
impressive because it exists despite the challenges that the exotic dancers faced, but generally, the contract<br />
fails to offer work benefits comparable to those of other more established unions.” Rutman, supra note [x],<br />
at 555.<br />
96 Moukalif, supra note [x], at 270.<br />
97 Maticka-Tyndale describes assaults of dancers in private rooms of clubs, but also notes that “even in the<br />
public areas of clubs, women are often subject to verbal harassment and unwanted sexual touching.”<br />
Maticka-Tyndale, supra note [x], at 95.<br />
98 [add cite] BROOKS, supra note [x], at [pincite] (describing dancers’ concerns); Maticka-Tyndale, supra<br />
note [x], at 95 ([add parenthetical]).<br />
99 Maticka-Tyndale, supra note [x]. See also Exotic Dancing Health and Safety (“While assault is not<br />
tolerated in other workplaces, dancers report that it is not uncommon for bouncers, managers and police to<br />
treat assault in and around a strip-club as an occupational hazard that dancers should expect and “deal with”<br />
without taking action against the perpetrator.”).<br />
100 [add quote and cite]<br />
20
stakeholders in the sex trade, customers, co-workers, and employers, feel entitled to<br />
physically abuse the workers, making sex work among the most dangerous forms of<br />
labor. 101 Many contend that employers do not do enough to keep sex worksites safe and<br />
to protect the workers.<br />
A second axis of risk is “dirt,” or the unsanitary state of many sex workplaces,<br />
which exposes workers to infection and other health risks. Dancers in particular<br />
complain that employers do not properly sanitize the stage poles, floors, club furnishings,<br />
and props with which their bare genital areas come in contact. Moreover, their job<br />
requires intimate contact with customers and their clothing, over which employers have<br />
less control. 102 Constant exposure to body fluids and unsanitized surfaces puts them at<br />
risk for infections and diseases. 103<br />
What Macklin terms “degradation,” too, is a much-contested feature of sexual<br />
labor. Degradation takes many forms. Those with whom sex bargainers interact at<br />
work—customers, employers, and other employees—all can treat them with contempt,<br />
frequently using misogynist slurs and epithets. [add quote from Maticka-Tyndale]<br />
Ironically, then, the stakeholders within this market sector reinforce the image of it as<br />
filled with immoral, sexually promiscuous women who are not entitled to the basic<br />
human respect or dignity accorded other workers. Assimilationists contend that this<br />
behavior, much of it intensely gendered, comprises illegal sexual harassment under Title<br />
VII’s anti-discrimination provisions. For instance, Ann McGinley contends that “[a]<br />
business that creates a risk of serious harassment should develop systems to prevent and<br />
correct harassing behavior.” 104 Other commentators agree that even within sexualized<br />
workplaces workers should be entitled to be free from unwelcome sexual behavior. 105<br />
Assimilationists also identify a second axis of degradation covered by<br />
discrimination law. A pointed critique of sex markets is that they erect hierarchies along<br />
the lines of race and other forms of body capital. Hence, one study of prostitution found<br />
the women sorted along lines of race, with white, Asian, and lighter-skinned black<br />
women dominating the higher-end “strolls” and darker-skinned and older women<br />
relegated to less lucrative, and more harassing and dangerous, ones. 106 Similarly, as the<br />
Live Nude Girls Unite! documentary described, minorities in the dancing industry have<br />
101 [perhaps add comparative paragraph]<br />
102<br />
103<br />
Maticka-Tyndale, supra note [x], at 95, 99; [also check Gall Unionisation website].<br />
104<br />
Ann C. McGinley, Harassment of <strong>Sex</strong>(y) <strong>Work</strong>ers: Applying Title VII to <strong>Sex</strong>ualized Industries, 18 YALE<br />
J.L. & FEM. 65, 98 (2006).<br />
105<br />
See infra notes [x] and accompanying text for discussion of the debate over sexual harassment liability<br />
in sexual workplaces.<br />
106<br />
The predominantly White, Asian and light-skinned Black women on the crowded and brightly lit<br />
Geary-Mason stroll command the highest prices. They are young, slim and expensively dressed;<br />
their tightly-fitted suits, sweater sets and fur or leather coats code them for a relatively upscale<br />
market. Physically, only their shorter-than-average skirts, “big hair” and heavy makeup set them<br />
apart from many of the dressed-up female tourists or theater and restaurant goers who walk past<br />
them, and the differences may be quite subtle. They strive to project an image they describe as<br />
“nice, normal, classy.” Perhaps the main distinguishing characteristic of these women is their<br />
tendency to stand alone, unescorted, or to congregate in all-female groups and smoke between<br />
dates.<br />
Bernstein, supra note [x], at 103 (footnotes omitted). The paper then gives the pricing structures per class.<br />
21
fewer opportunities, and less lucrative ones, than white dancers. Siobhan Brooks’ recent<br />
study of three dance clubs in New York and Oakland found:<br />
When women of color are working in predominately White clubs that offer more<br />
security and are located in areas with higher property values, they often are paid<br />
less than their White counterparts, marginalized as token hires, or employed in<br />
lower-tier job positions. Women of color working in clubs predominately<br />
employing people of color, may make good money, but are subject to unjust<br />
working conditions, customer expectations that services will be cheaper, and<br />
unsafe neighborhood spaces—erotic capital is not separate from institutions or<br />
other forms of capital. 107<br />
Thus, racial groups have very different erotic capital, and this translates into very<br />
different work opportunities in sex markets. Assimilationists such as Brooks make much<br />
of this disparity. She observes: “Racism against Black women in this industry is usually<br />
viewed as normal because, like other appearance- based industries (such as modeling,<br />
acting), the sex industry is based on ideas of customer taste and preference.” 108 Yet she<br />
contends that racialized desire in the erotic industry is no less socially constructed than in<br />
other areas of social interaction, and should be considered impermissible employment<br />
discrimination under Title VII. 109 While less visible in the discourse, presumably older<br />
sex workers and disabled ones experience discrimination, outside of niche or fetish<br />
markets. 110<br />
Degradation of sex workers then takes two forms. Women working in sex<br />
markets are routinely subject to a degree and form of gendered harassment that is<br />
exceptional in other contemporary, domestic workplaces. In addition, disparate treatment<br />
of women with non-normative bodies is pervasive, resulting in hierarchies along lines of<br />
race, age, and ability. 111 Legal norms have shifted in the last forty years, to hold<br />
employers liable for discriminatory practices, including, of course, disparate treatment<br />
and harassment. Assimilationists want access to this set of rules.<br />
In sum, in addition to giving sex laborers the ability to enforce their contracts and<br />
to access basic employee benefits, assimilationists anticipate that recognizing sexual<br />
labor as legitimate work would also give workers protection from dangerous, dirty, and<br />
degrading workplaces. As this next part shows, dirt and danger concerns typically are<br />
regulated in tandem through health and safety regulations. There are some separate,<br />
common law tort rules pertaining to workplace violence, but much of it falls within<br />
workers’ compensation or OSHA regulations. Degradation, as discussed, typically is<br />
107 BROOKS, supra note [x], at 3-4, 101. She finds that clubs where women of color are concentrated have<br />
the worst terms and conditions, e.g., higher stage fees, more harassment, and coerced prostitution. See also<br />
Tanya Kateri Hernandez, <strong>Sex</strong>ual Harassment and Racial Disparity: The Mutual Construction of Gender<br />
and Race, 4 J. GENDER RACE & JUST. 183 (2001) (discussing how race is a work in sex tourism industry).<br />
108 BROOKS, supra note [x], at 99.<br />
109 See also Rutman, supra note [x], at 534 (“Despite the seemingly obvious requirement that dancers be<br />
attractive, Title VII protections still adhere to prevent discrimination against protected classes.”). [See infra<br />
notes [x] and accompanying text.]<br />
110 In fact, the propensity for marginalizing older dancers was one point of contention at the Lusty Lady.<br />
[elaborate how older dancers were treated] See, e.g., Emens, supra note [x], at 1343-45 (describing<br />
“acrotomophilia,” or desire for amputees).]<br />
111 For instance, Margot Rutman speculates: “Obese exotic dancers might be protected under the ADA from<br />
discrimination in some instances.” Rutman, supra note [x], at 534 n.165 [add discussion on dignitary<br />
harms] [disparate impact?]<br />
22
egulated by discrimination law, either sexual harassment or disparate treatment doctrine.<br />
Assimilationists’ claim is that sex workplaces should be regulated “like any other<br />
workplace.” Let’s see, then, how “other workplaces” are regulated.<br />
B. Employee Status<br />
The trilogy of laws collectively known as the National Labor Relations Act gives<br />
workers the right to organize, collectively bargain, and strike, but limits this to those<br />
deemed to be employees, excluding independent contractors. 112 Similarly, the Fair<br />
Labor Standards Act and other labor doctrine limits to employees many of the other<br />
benefits sex bargainers seek, such as minimum wage, retirement and health benefits,<br />
social security, and unemployment. 113 Yet, the legal test for employee status remains<br />
amorphous. As one casebook notes, “The question whether a worker is an independent<br />
contractor or an employee cannot be answered in the abstract and there is no uniform<br />
doctrinal test for status. Instead, the issue must be examined in the context of the<br />
legislative purpose of the particular statutory rights at issue.” 114 [add discussion of<br />
control test and other factors] Under such a test, litigation over employee status is<br />
legion. 115<br />
C. Health & Safety Regulations<br />
<strong>Work</strong>place health and safety are regulated primarily through two sets of doctrine,<br />
state workers’ compensation laws and the federal regulations and guidelines enacted by<br />
the Occupational Health & Safety Act. <strong>Work</strong>ers’ compensation is, in effect, a state-based<br />
insurance system that covers injuries that stem from “accidental injuries” that “arise out<br />
of” or “in the course of” employment. 116 The system has two signal features. First, it<br />
limits employer liability. Importantly, actual loss is not part of the equation, and in the<br />
vast majority of states neither punitive damages nor emotional pain and suffering are<br />
available. 117 In exchange, injured workers do not have to prove employer fault. 118<br />
Instead, an administrative agency addresses claims, typically more rapidly and<br />
inexpensively than litigation would. <strong>Work</strong>ers’ compensation transforms workplace<br />
112<br />
“The theory of the Act was that requiring the exchange of information and establishing a therapeutic<br />
outlet for discussion would encourage employers and unions to resolve their differences through bargaining<br />
rather than through the exercise of economic weapons (the strike and the lockout).” WORK LAW: CASES<br />
AND MATERIALS 2d edition 21-22 (Marion G. Crain et al eds., 2010) [hereinafter WORK LAW].<br />
113<br />
[add citation]<br />
114<br />
WORK LAW, supra note [x], at 74.<br />
115<br />
[add citations]<br />
116<br />
MARION CRAIN ET AL, WORK LAW: CASES AND MATERIALS 2d ed. [pincite] (2010) [hereinafter WORK<br />
LAW] (describing different states’ statutory language). There are some federal iterations as well. See, e.g.,<br />
Federal Employees’ Compensation Act, 5 U.S.C. sects. 8101-93 (federal employees); Longshore and<br />
Harbor <strong>Work</strong>ers’ Compensation Act, 33 U.S.C. sects. 901-50 (ship, harbor, and railroad employees); [add<br />
others?].<br />
117<br />
“[T]he concepts of punishment and deterrence that lie behind punitive damages are absent from the<br />
system.” WORK LAW, supra note [x], at 954. In addition, the exclusivity of remedies rules limit employees<br />
to workers’ compensation claims, barring them from bringing claims through tort suits, which could yield<br />
much greater awards. For further discussion of this doctrine, see infra note [x].<br />
118<br />
See, e.g., WORK LAW, supra note [x], at 953 (it is a “fundamental compromise—no fault compensation<br />
in exchange for limited liability”).<br />
23
liability questions from ones of employer fault and causation (and accompanying<br />
common law tort defenses 119 ) to worker need. While there is significant variance across<br />
states, they now cover most workplaces, providing workers with a safety net. 120<br />
Initially, workers’ compensation was designed to address industrial accidents. As<br />
John Fabian Witt observes, “Nineteenth-century observers believed both that the number<br />
of accidental injuries was increasing and that the cause of the increase was the<br />
mechanization of production.” 121 Coal mining and railroads topped the list for workplace<br />
accidents, followed by logging, bricklaying, and masonry. 122 These industrial accidents<br />
devastated not only the worker, but also their families. “<strong>Work</strong> accidents, it seemed,<br />
threw the ambiguous status of the industrial worker into bold relief, compelling victim<br />
and observer alike to ask hard questions about the relationships among capital, labor, and<br />
the public.” 123 Of course, as the title of Fabian’s book, Crippled <strong>Work</strong>ingmen and<br />
Destitute Widows, suggests, all of this was intensely gendered. The jobs that dominated<br />
the public and regulatory imaginary as “dangerous” were ones limited to male workers.<br />
Similarly, the ideal of a worker who would provide the sole or primary “family wage”<br />
was imagined to be a male head of household. Hence, in its initial formulation, workers’<br />
compensation was actually legally and culturally conceived as workman’s<br />
compensation. 124<br />
Operating alongside state workers’ compensation statutes are federal health and<br />
safety regulations. Following Macklin’s schema, workplace risk can be divided along<br />
two axes, “danger,” or safety, and “dirt,” or health. The Occupational Health & Safety<br />
Agency (OSHA) aggregates the two under its health and safety regulations. Enacted in<br />
1970, Congress charged OSHA with “promulgating regulations, inspecting workplaces,<br />
and prosecuting violations of its regulations and standards.” 125 Unlike workers’<br />
compensation, which functions primarily as a compensation scheme, labor reformers and<br />
Congress conceived OSHA explicitly to deter risk and achieve safer workplaces. 126<br />
OSHA’s goal is to “assure so far as possible every working man and woman in the<br />
Nation safe and healthful working conditions . . . .” 127 However, as some commentators<br />
explain, because of the political difficulties it faces in enacting new regulations, OSHA<br />
“commonly relies on . . . [its] general duty clause” in lieu of enacting specific<br />
119 WORK LAW, supra note [x], at 946 (describing how fellow-servant rule, assumption of risk, and<br />
contributory negligence operated as employer defenses to liability for workplace injuries).<br />
120 “[T]he various state laws vary greatly in their details on such issues as what types of injuries are<br />
compensable and how benefit levels are determined.” WORK LAW, supra note [x], at 953.<br />
121 JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC: CRIPPLED WORKINGMEN, DESTITUTE WIDOWS, AND<br />
THE REMAKING OF AMERICAN LAW 2 (2004). See also [add other cites]<br />
122 Id. at [pincite].<br />
123 Id. at [pincite].<br />
124 It was also “raced.” [elaborate on exclusion of black families from these patriarchal and paternalist<br />
norms]<br />
125 WORK LAW, supra note [x], at 1000. [add citation to statute] Operating within the Department of<br />
Labor, OSHA oversees private workplaces, regulating “more than 100 million workers in more than eight<br />
million workplaces.” Id. at 1001. In addition, states are authorized to enact their own OSHA’s, using the<br />
federal statute as a floor. Id. [add some other basic background on OSHA]<br />
126 Of course, as an insurance scheme, workers’ compensation, too, has some deterrence function.<br />
Employee pay-outs affect employers’ contributions. [add citation] See generally [add citations on debate<br />
over deterrence effects]<br />
127 29 U.S.C sect. 651(b).<br />
24
egulations. 128 Although criticized by employers and workers alike, OSHA is held<br />
largely responsible for reducing the number of annual workplace fatalities from 70,000 to<br />
approximately 5,000 in the last decade. 129<br />
Together, workers’ compensation and OSHA are the primary mechanisms for<br />
achieving healthy and safe workplaces. Yet, workers receive vastly different degrees and<br />
types of protection, depending on their workplace, the work they do, and the type of risk<br />
they confront in the workplace. <strong>Work</strong>ers receive the most comprehensive protection<br />
from the single-incident industrial injuries initially envisioned by the workers’<br />
compensation system. OSHA has developed adequate standards to address worker risk<br />
posed by machines and other equipment typically found in factories and other<br />
manufacturing workplaces. [add quote or elaborate] In the absence of specific<br />
recommendations, courts have found OSHA’s general duty clause governs much of this<br />
workplace risk. (The question of whether OSHA’s enforcement is effective is a different<br />
matter. 130 ) Ex post, after a single-incident injury, workers’ compensation provides<br />
medical benefits to cover rehabilitation, as well as benefits to cover temporary and<br />
permanent loss of income. As noted above, these benefits are paid according to a predetermined<br />
schedule, and workers receive only partial compensation. Still, between<br />
OSHA’s deterrence rules and workers’ compensation’s ex post benefits, our regulatory<br />
regime covers reasonably well the single-incident workplace risk that inspired it.<br />
However, beyond these single-incident industrial injuries, there remains significant<br />
uncertainty on what kinds of worker injuries are covered and when. “In particular,<br />
coverage of occupational diseases, repetitive stress injuries and mental injuries have<br />
proven controversial.” 131 After decades of struggle, workers won the inclusion of<br />
“disease” in workers’ compensation statutes, yet, “those suffering from work-related<br />
diseases still face considerable hurdles” in obtaining benefits. 132 Hence, even miners<br />
have found it more difficult to recover for black-lung and related diseases than for the<br />
incident-related injuries that inspired the system. 133 OSHA, meanwhile, has struggled to<br />
gain authority over this type of workplace risk. In the 1990s, the agency tried to establish<br />
erogonomic standards to address repetitive-motion injuries, but was hindered by a<br />
powerful employers’ lobby and a hostile Congress. 134 [address chronic disease] In the<br />
end, there is not a uniform regulatory stance toward workplace risk. Single-incident<br />
injuries associated with industrial workplaces are at one end of the spectrum, receiving<br />
the most regulatory attention, while at the other lie the more chronic injuries which have<br />
128<br />
The general duty clause states: “[e]ach employer [] shall furnish to each of his employees employment<br />
and a place of employment which are free from recognized hazards that are causing or are likely to cause<br />
death or serious physical harm to his employees[.]” [add citation] “OSHA has promulgated far fewer<br />
permanent standards than was originally contemplated, and it often relies on other means to enforce its<br />
statutory mandate.” WORK LAW, supra note [x], at 1001, 1004. See also id. at 1005 (describing second<br />
enforcement mechanism, temporary standards).<br />
129<br />
WORK LAW, supra note [x], at 939. “Today OSHA is perhaps best known for being one of the most<br />
criticized agency that regulates the workplace. Id. at 1000.<br />
130<br />
[add discussion and citations on this]<br />
131<br />
WORK LAW, supra note [x], at 955.<br />
132<br />
WORK LAW, supra note [x], at 955.<br />
133<br />
The first two workers’ compensation statutes were for miners. Arthur Larson, The Nature and Origins<br />
of <strong>Work</strong>men’s Compensation, 37 CORNELL L.Q. 206, 231 (1952). [add citations]<br />
134<br />
WORK LAW, supra note [x], at 1004-05. After its ergonomic standard was rescinded by the Bush<br />
Administration, the Department of Labor issued guidelines for discrete industries. Id.<br />
25
ecome “the fastest growing category of workplace injury.” 135 <strong>Work</strong>ers who confront<br />
this type of workplace risk still struggle for regulatory and compensatory relief.<br />
In addition, both workers’ compensation statutes and OSHA have developed<br />
categories of inclusion and exclusion. For instance, professional athletes are statutorily<br />
or functionally excluded from workers’ compensation in many states. Although<br />
frequently injured and disabled from working, courts and legislators have this category of<br />
worker does not warrant coverage because [fill in rationale]. 136 [add others] These<br />
categorical inclusions and exclusions are most apparent, however, when it comes one<br />
primary form of workplace danger identified by sex workers—violence.<br />
Over two million workers are victims of workplace violence each year. 137 In fact,<br />
homicide, not cave-ins or machine malfunctions, is the [fourth] leading cause of<br />
workplace fatalities and the leading cause for women workers. 138 Yet, as numerous<br />
commentators have noted, workplace violence seems to fall through the regulatory<br />
cracks. OSHA is nominally charged with protecting workers from violence in the<br />
workplace. Although the agency does not have specific standards for workplace<br />
violence, its general duty clause imposes a broad obligation on employers to guarantee<br />
their employees a safe working environment. However, as numerous critics have pointed<br />
out, “there has been virtually no enforcement of this duty with regard to workplace<br />
violence.” 139 As with other risk, violence is not equally distributed across workplaces—<br />
workers in late night retail, i.e., convenience stores, health care, and service jobs are the<br />
135 WORK LAW, supra note [x], at 1004.<br />
136 See, e.g., Stephen Cormac Carlin & Christopher M. Fairman, Note, Squeeze Play: <strong>Work</strong>ers’<br />
Compensation and the Professional Athlete, 12 U. MIAMI ENT. & SPORTS L. REV. 95 (1994) (noting how<br />
both workers’ compensation statutes and their own contracts limit professional athletes’ claims for injury);<br />
Rachel Schaffer, Grabbing Them by the Balls: Legislatures, Courts, and Team Owners Bar Non-Elite<br />
Professional Athletes from <strong>Work</strong>ers’ Compensation, 8 AM. U.J. GENDER SOC. POL’Y & L. 623 (2000);<br />
[GERALD HERZ & ROBERT C. BAKER JR., PROFESSIONAL ATHLETES AND THE LAW OF WORKERS’<br />
COMPENSATION: RIGHTS AND REMEDIES; Frederic Pepe & Thomas P. Frerichs, Injustice Uncovered?<br />
<strong>Work</strong>er’s Compensation and the Professional Athlete, in SPORTS AND THE LAW 18, 19 (Charles E. Quirk<br />
ed., 1996) (noting misconception that all professional athletes are overpaid and arguing that professional<br />
athletes need same legal protection as ordinary working people precisely because they do not earn large<br />
salaries); Professional and Amateur Sports 15-1, 15-17, at 15.04 (Gary A. Uberstine ed., 1991) (contrasting<br />
temporary disability benefits and permanent disability benefits)]<br />
137 [add citation]<br />
138 [add citations; compare to 1 million number]. <strong>Work</strong>place violence comprises 15% of all violence in the<br />
country. [add citation] Last decade, “[d]eaths resulting from workplace violence [were] the fastest<br />
growing type of homicide in the United States.” Jules M. <strong>Davis</strong>, Potential Violence to the Bottom Line—<br />
Expanding Employer Liability for Acts of <strong>Work</strong>place Violence in North Carolina, 78 N.C.L. REV. 2053<br />
(2000). “In 1993, the National Safe <strong>Work</strong>place Institute estimated the total annual economic cost of<br />
workplace violence to be $ 4.2 billion.” Id. at 2055. [find more recent stats: “In 1998 alone, 709<br />
homicides, 1.5 million simple assaults, 396,000 aggravated assaults, 51,000 rapes and sexual assaults, and<br />
84,000 robberies resulted from workplace violence.”]<br />
139 Note, Sheryl L. Erdmann, Eat the Carrot and Use the Stick: The Prevalence of <strong>Work</strong>place Violence<br />
Demands Proactive Federal Regulation of Employers, 43 VAL. U.L. REV. 725, 727 ( 2009) (footnote<br />
omitted). See also <strong>Davis</strong>, supra note [x], at 726-27 (“The Occupational Safety & Health Administration<br />
("OSHA") holds employers to a general duty to shield employees from hazards and injury. However, there<br />
has been virtually no enforcement of this duty with regard to workplace violence.”) (footnote omitted). In<br />
addition, in 1995 there was an administrative law ruling that strict liability would not be imposed on<br />
employers for hazards that were not recognized by the employers’ industry. [add citation]<br />
26
most vulnerable to workplace violence. 140 Accordingly, OSHA has issued specific<br />
guidelines and recommendations for two of these high-risk industries, health care and<br />
social service workplaces and late-night retail stores. 141 Still, these guidelines remain<br />
advisory only, and no workplace is subject to mandatory rules from OSHA regarding<br />
preventing workplace violence. 142<br />
In the absence of leadership by OSHA in deterring workplace violence, workers’<br />
compensation has emerged as the “primary compensatory remedy.” 143 <strong>Work</strong>ers’<br />
compensation operates as almost the converse of OSHA: while OSHA has issued<br />
guidelines covering only two high-risk industries, 90% of workers nominally are covered<br />
by workers’ compensation for workplace violence. 144 Yet, state systems have developed<br />
their own doctrinal exclusions, which disproportionately affect some workplaces where<br />
violence is a dominant risk. Ironically, while OSHA identifies all-night retail as a highrisk<br />
industry, many courts have denied workers’ compensation claims for convenience<br />
store assaults as not meeting the requirements that injuries “arise out of” or “in the course<br />
of employment.” 145 [check on other workplace assaults] In some jurisdictions, this has<br />
emerged as a categorical exclusion. 146 For instance, [describe Alabama exclusions].<br />
Moreover, under workers’ compensation there is no recovery for emotional suffering,<br />
which severely limits relief for some workplace injuries. 147 Consider for a moment a<br />
form of violence prevalent in both sex businesses and convenience stores: sexual<br />
assault. 148 Many courts have found that workplace rapes do not “arise from the<br />
employment” and hence are exempt from workers’ compensation benefits. 149 Moreover,<br />
a rape victim may not suffer lasting physical impairment, required for workers’<br />
compensation benefits. The emotional suffering many sexual assault victims experience<br />
is excluded. 150 In sum, workers’ compensation excludes some of the most devastating<br />
140<br />
For homicide, “most of the victims work in retail trade, security services, or transit services<br />
occupations.” Jane Lipscomb et al, Preventing Injuries & Abuse: Perspectives on Legal Strategies to<br />
Prevent <strong>Work</strong>place Violence, 30 J.L. MED. & ETHICS 166, 166 (2002). On the other hand, “[t]he majority<br />
of non-fatal workplace injuries occur in settings in which the victim and the attacker are in a custodial or<br />
client-caregiver relationship, such as in health care or social services.” Id. These statistics also vary<br />
according to geography. For instance, in New York City, in [dates] the workers at greatest risk from<br />
violence were taxi drivers and grocery store workers. Susan L. Pollett, Violence in the <strong>Work</strong>place: Are<br />
Employers Legally Responsible?, 22 WESTCHESTER B.J. 133, 138 (1995).<br />
141<br />
[add citation]<br />
142<br />
“Many groups, including labor unions, police departments, industry representatives, professional safety<br />
associations, and federal and state agencies, have begun to recognize that Occupational Safety and Health<br />
Administration (OSHA) inspectors should use the general duty clause of the Occupational Safety and<br />
Health Act (OSHAct) as a cudgel to force employers to address workplace violence more effectively.”<br />
Robert S. Goldberg, Comment: Victims of Criminal Violence in the <strong>Work</strong>place: An Assessment of Remedies<br />
in the United States and Great Britain, 18 COMP. LAB. L. 397, [add pincite] (1997).<br />
143<br />
Goldberg, supra note [x], at (footnote omitted).<br />
144<br />
[add citation]<br />
145<br />
See, e.g., WORK LAW, supra note [x], at 974-75.<br />
146<br />
See, e.g., Goldberg, supra note [x], at [pincite].<br />
147<br />
“In cases of workplace violence, where injuries are emotionally damaging to the victim, workers'<br />
compensation is wholly inadequate as a remedy.” [cite].<br />
148<br />
[add statistics on rape and rape/homicide in convenience stores]<br />
149<br />
It is an interesting question whether court would be more likely to conclude that sexual assaults in sex<br />
workplaces meet the link to employment. This is addressed infra notes [x] and accompanying text.<br />
150<br />
[add citation]<br />
27
violence that employees experience. Thus, the “danger” many sex workers fear most,<br />
violence, is ineffectively and sporadically regulated by existing labor law.<br />
Stepping into this regulatory void, other state and federal regulations target some of<br />
the most dangerous workplaces. For instance, responding to a massive increase in<br />
violence against workers at all-night convenience stores, Florida passed the Convenience<br />
Business Security Act, which imposed security obligations on stores that had experienced<br />
a violent incident. 151 Florida’s statute has emerged as a model for other states. 152<br />
Similarly, the state of Washington passed a statute that imposes certain obligations on<br />
health care employers to prevent workplace violence. 153 Violence against workers at<br />
abortion clinics led both the federal government and the state of California to enact clinic<br />
access laws that give “local police and district attorneys a clearer mandate to prosecute<br />
anti-abortion violence.” 154 Finally, many commentators have responded to the regulatory<br />
void by urging a return to the common-law system as the best option for victims of for<br />
workplace violence. 155<br />
In sum, not all work or workers are treated alike when it comes to risk. Some injuries<br />
are the object of both deterrence and compensatory regulation. But workers susceptible<br />
to other kinds of risk continue to struggle for legal cognition. This differential is<br />
particularly noteworthy with regard to workplace violence. Some industries enjoy<br />
special, targeted regulation to ameliorate workplace violence. 156 However some of the<br />
most dangerous workplaces are ones where the “danger” is largely unregulated or the<br />
injury is incompensable. Hence, the notion of an ideal “workplace” is a miscue when it<br />
comes to health and safety regulation.<br />
D. Discrimination<br />
If danger concerns are governed by a complex interplay of compensatory state<br />
insurance schemes, federal occupational health and safety regulations, and common law<br />
litigation, then the workplace “degradation” identified by sex work advocates is typically<br />
within the province of discrimination law. Several federal laws curb the extent to which<br />
employers can discriminate against their workers. Title VII of the Civil Rights Act of<br />
1964 prohibits employers from discriminating in hiring, promotion, termination, training,<br />
151<br />
152 [add citations]<br />
153<br />
154 See, e.g,, [add citation] (discussing operation of clinic access laws).<br />
155 And finally, while declining to impose obligations on employers, some states offer various common-law<br />
routes to recovery against employers for victims of workplace violence. <strong>Work</strong>ers and their survivors have<br />
enjoyed mixed success under both contract and tort theories of breach of duty to provide security and<br />
negligent hiring and retention. An initial hurdle, however, to common-law recovery is the workers’<br />
compensation system and its exclusivity of remedies rule, which prevents employees from seeking full<br />
compensation or compensation for the severe mental and emotional suffering that accompany workplace<br />
violence. [fill in from notes]<br />
156 More broadly, several states have enacted statutes that permit employers to act on behalf of their<br />
employees and get temporary restraining orders against individuals for harassment and stalking. See, e.g.,<br />
[California, Arkansas, Colorado, Georgia, Indiana, Nevada, Rhode Island, and Tennessee]<br />
28
and other employment terms on the basis of race, sex, religion, color, or national<br />
origin. 157 Passed shortly after Title VII, the Age Discrimination in Employment Act of<br />
1967 bars employment discrimination against workers aged 40 or older. 158 The final<br />
piece of employment discrimination legislation came in 1990 with the Americans with<br />
Disabilities Act (ADA), a broad mandate prohibiting discrimination, including in the<br />
workplace. 159 Taken together, these anti-discrimination laws sharply limit the extent to<br />
which employers can indulge their preferences and biases, and, equally crucially, the<br />
preferences and biases of their customers. Yet, there are some important exceptions that<br />
do not operate equally among the legislation.<br />
Although regulated under different statutory regimes, age, religion, national<br />
origin, and sex all are subject to a bona fide occupational qualification exemption (bfoq).<br />
This means that employers can discriminate if the characteristic is related to the “central<br />
mission” or “essence” of the business. 160 Classic examples of age bfoq’s include<br />
retirement ages for bus drivers and airline pilots, both of which courts have upheld as<br />
[add quote]. “Authenticity” of a service or product is another bfoq. Religion and<br />
national origin are most commonly exempted under authenticity bfoq’s. Hence, the<br />
Catholic Church can hire only Catholics (and men) as priests, and Chinese restaurants can<br />
hire Chinese chefs. 161 Authenticity also reaches gender, as filmmakers can hire men to<br />
play male parts. 162 In fact, the gender bfoq for Hollywood is even included in a comment<br />
in the EEOC Guidelines. 163<br />
Apart from authenticity, which gender shares with religion, national origin, and,<br />
presumably, age, gender has developed its own, complex, jurisprudence on bfoq’s. As<br />
Kimberly Yuracko points out, this is especially apparent in the service sector. Unlike,<br />
say, manufacturing, where customers typically differentiate among products, in service<br />
work, customers can develop strong preferences for particular kinds of workers or<br />
characteristics. 164 Employers develop and exploit these preferences to market their<br />
business, in ways the law has deemed both legitimate and illegitimate. 165<br />
157 [add citation]<br />
158 [add citation]<br />
159 [add citation]<br />
160 Yuracko defines the “essence” of a business as follows: “inherent meaning, shared social meaning,<br />
employer-defined and customer-defined.” Yuracko, supra note [x], at [pincite].<br />
161 In one controversial decision, the religion bfoq was even extended to hiring a philosophy professor at a<br />
religious university. [add citation and articles discussing] Consistency, however, is required. Hence, a<br />
Chinese restaurant that hired French, Italian, and Japanese chefs could not then exclude Mexican<br />
applicants. [add citation]<br />
162 Mary Anne Case called it “bizarre that sex is considered a BFOQ, in the interests of ‘authenticity or<br />
genuineness,’ for the job of actor or actress . . . . After all, the very essence of this job is to be something<br />
one is not. All that a producer should be allowed to require is that the pretense be convincing.” Mary Anne<br />
C. Case, Disaggregating Gender from <strong>Sex</strong> and <strong>Sex</strong>ual Orientation: The Effeminate Man in the Law and<br />
Feminist Jurisprudence, 105 YALE L.J. 1 (1995). Russell Robinson elaborates, “Actors generally do not<br />
face authenticity requirements regarding many character traits; for example, an actor need not be gay or<br />
have a disability or pregnant in order to play a character with that trait. Indeed, good acting is often defined<br />
as the ability to pull off a role quite different from the actor’s own identity.” Robinson, supra note [x], at<br />
31-32.<br />
163 The Guidelines purport to authorize sex discrimination in casting insofar as it is “necessary for the<br />
purpose of authenticity or genuineness.” [add citation]<br />
164 Kimberly Yuracko notes, “Two types of customer preferences define each business: preferences for<br />
products and preferences for people. Businesses are shaped most obviously by customer preferences for<br />
29
Gender stereotypes provide a fascinating case in point. Employer efforts to<br />
justify discriminatory practices based on gender stereotypes, including both nurturing and<br />
sexual titillation, were rejected by courts in a famous series of 1970s cases. Faced with<br />
airlines’ efforts to limit the position of flight attendant to young, “attractive” women,<br />
courts held they could not exclude men from the position of flight attendant nor subject<br />
women flight attendants but not men to weight restrictions. 166 Yet, the sex bfoq remains<br />
robust in other service sectors. 167 Courts have upheld gender as a valid criterion for<br />
discrimination for nurses who work in labor and delivery rooms, nursing home attendants<br />
who bathe and dress patients, restroom attendants, and, in some cases, for prison<br />
guards. 168 Importantly, the courts cite as the relevant factor the employer’s reasonable<br />
regard for its patrons’ privacy. 169 A second exemption is for workplaces where the<br />
business is “sexual gratification.” Courts have upheld the right of employers in the sex<br />
business to employ only women (or, presumably, only men). 170 Yet here, courts are<br />
careful to distinguish businesses that sell sexual gratification from those that sell sexual<br />
titillation along with another service, such as meals, air flights, etc. Employer efforts to<br />
assert bfoq’s in what Kimberley Yuracko terms “plus-sex” businesses rarely win. 171<br />
certain goods and services. A business will not stay afloat if there is no customer demand for its good or if<br />
its service does not meet customer expectations. Businesses are also shaped, however, by customer<br />
preferences for certain types of employees or service providers. Customer preferences to have certain<br />
services provided by employees of a particular sex may, for example, be grounded in (1) a belief that<br />
individuals of one sex are superior in all or particular activities to individuals of the other sex, (2) socially,<br />
or perhaps biologically, conditioned feelings of discomfort at having certain services performed by an<br />
individual of a particular sex, (3) a desire to experience or avoid sexual titillation, or (4) a sense of socially<br />
or aesthetically appropriate gender roles.” Yuracko, supra note [x], at [pincite]. Of course, many<br />
businesses may use their workers to try to link their products to an idea or image. Frequently, this is an<br />
effort to turn a product into a service. [add examples; thinking of Saturn]<br />
165<br />
Marion Crain describes employer efforts to differentiate their business and create consumer loyalty<br />
through the “brand.” [fill in] See, e.g., Dianne Avery & Marion Crain, Branded: Corporate Image, <strong>Sex</strong>ual<br />
Stereotyping, and the New Face of Capitalism, 14 DUKE J. GENDER L. & POL’Y 13 (2007) ([add<br />
parenthetical quote]). See also Marion Crain, Managing Identity: Buying into the Brand at <strong>Work</strong>, 95 IOWA<br />
L. REV. 1179 (2010) (describing how employers use “brand” to induce worker loyalty in absence of<br />
traditional incentives such as retirement benefits and job security).<br />
166<br />
[add citations]<br />
167<br />
[only limited success in manufacturing, etc]<br />
168<br />
For privacy, Yuracko develops a spectrum from touching (labor room and other care givers) to seeing to<br />
embarrassment but not touching or seeing (rest-room attendants). She contends [fill in]. Yuracko, supra<br />
note [x], at [pincite]. See also Frank, supra note [x], at [pincite] (noting that “within the privacy cases, the<br />
courts deem the interests of ordinary customers in their privacy to be less than those of patients in nursing<br />
and health care facilities”).<br />
169<br />
“The courts that have permitted the privacy-based sex BFOQ believe that the very sex of the excluded<br />
individuals prevents them from giving customers adequate privacy. Accordingly, the test for the privacybased<br />
sex BFOQ is whether the excluded applicants can satisfactorily respect the privacy of customers in<br />
the performance of the job.” Franks, supra note [x], at 490. While Yuracko notes the “symmetry” in<br />
privacy preferences, Franks notes that the privacy bfoq defense typically only is applied to women’s<br />
privacy preferences, not to men’s. Id. at [pincite]; Yuracko, supra note [x], at [pincite].<br />
170<br />
[add citations, including dicta from Wilson v. Southwest alluding to permissibility of gender<br />
discrimination in strip clubs]<br />
171<br />
“Attempts to discriminate on the basis of sex in hiring for plus-sex businesses are virtually always<br />
unsuccessful.” Yuracko, supra note [x], at n.28. She claims that airlines and related cases demonstrate that<br />
“courts simply do not permit employers to explicitly sell sexual titillation along with other goods and<br />
services.” Id. at [pincite]. Yuracko also believes that most employers would not risk association as a<br />
30
Hence, privacy and sexual gratification are noteworthy as the only areas of Title VII<br />
where customer “tastes for discrimination” trump workers’ rights to equal treatment. 172<br />
Importantly, though, employers cannot defer to their own or their customers’<br />
racial preferences or biases. Unlike sex, neither race nor disability has a bfoq exemption.<br />
The standard for disability is that employers must make “reasonable accommodations”<br />
and not deny an opportunity to an otherwise qualified individual. 173 And race is<br />
straightforward: [add judicial quote re no bfoq for race]. Yet, when it comes to<br />
“authenticity,” there appear to be some implied bfoq’s for race in employment. For<br />
instance, commentators have speculated that law enforcement can fairly limit undercover<br />
agents by race, i.e., limit Klan infiltration to white officers. 174 There also seem to be<br />
implied exemptions in the appearance-industries. Most notably, Russell Robinson and<br />
Michael J. Franks have both observed that race seems to enjoy an implied bfoq for race in<br />
the highly influential and profitable filmmaking industry. 175 Writing in 2001 and 2007,<br />
neither author found any litigation regarding the very prevalent racial preferences in<br />
casting decisions. 176 As Robinson observes, “Indeed, when it comes to casting, an entire<br />
industry effectively disregards Title VII.” 177 Noting the prevalence of racial<br />
specifications in casting breakdowns, 178 he continues, “the EEOC carves out casting as an<br />
arbitrary exception to the normal requirement that an applicant be considered as an<br />
individual and not saddled with group-based stereotypes and the ban on catering to<br />
sexual gratification business. “Businesses explicitly selling sexual titillation may do so only by positioning<br />
themselves within the traditionally marginalized and stigmatized sex industry. Businesses that seek to bring<br />
sexual titillation into the mainstream by combining sexual titillation (and sex-based hiring) with the sale of<br />
other goods and services are not permitted to exist.” Id. at 196. Ann McGinley, on the other hand, is not as<br />
sanguine about the plus-sex/sexual gratification dichotomy. McGinley finds “[t]he lines between sex work,<br />
work in a highly sexualized environment, and other work requiring employees to ‘sell’ their sex or gender<br />
to give up control over their intimate emotions are hazy.” McGinley, supra note [x], at 95 (footnote<br />
omitted). Instead, “[o]ften, a woman’s job prospects and ability to advance within an enterprise are linked<br />
to her setting the proper gender tone on the scale of commodification.” Id. at 94 (footnote omitted).<br />
172<br />
Kimberly Yuracko, however, disputes this as the real reason for the distinction. Instead, she contends<br />
[add].<br />
173<br />
[add citation]<br />
174<br />
Some have also suggested that newspapers might send white reporters to interview Klan members. [add<br />
citations] Russell Robinson observes that “A few courts have suggested without holding that Title VII<br />
could permit a BFOQ for race in certain contexts, like police forces and prison security.” Russell K.<br />
Robinson, Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms, 95 CALIF.<br />
L. REV. 1, 41 (2007).<br />
175<br />
Michael J. Franks, Justifiable Discrimination in the News and Entertainment Industries: Does Title VII<br />
Need a Race or Color BFOQ?, 35 U.S.F. L. REV. 473 (2001); Robinson, supra note [x].<br />
176<br />
Franks, supra note [x], (“There is not a single reported case in which an actor has sued a director for<br />
race-based casting decisions, even though it is common.”); Robinson, supra note [x] (noting his research<br />
“did not turn up a single published decision in which a court adjudicated an actor’s Title VII claim of race<br />
or sex discrimination.”). [fill in Hunter Tylo pregnancy discrimination suit; jury decision for $4.8 million,<br />
which many speculate was based on Spelling’s accommodation of previous pregnant actresses; (cite<br />
Russell’s UCLA brief)].<br />
177<br />
Robinson, supra note [x], at 5.<br />
178<br />
Robinson contrasts race and sex specifications in casting breakdowns. “This common sequencing<br />
suggests that sex forms the foundation of a character more than the traits that follow, such as race and<br />
age.”; 45.2% of breakdowns had racial code, versus 94% for gender and "”women over 40 [who] are as<br />
much a minority as any ethnic group.”” Robinson, supra note [x], at 19.<br />
31
customer preferences.” 179 While not litigated, another appearance-industry, modeling,<br />
appears to enjoy a similar bfoq. Fashion designers routinely exclude non-white models<br />
from highly lucrative runway shows and advertising campaigns, or, alternatively, use race<br />
to organize their shows. Since they are not casting “characters” they cannot turn to the<br />
authenticity bfoq, and it is curious why, as with the film industry, there is not any<br />
litigation. In sum, while nominally there are not bfoq’s for race discrimination, the<br />
reality is that appearance industries routinely make hiring and other employment<br />
decisions based on race without fear of litigation. 180<br />
A second form of sex discrimination prohibited by Title VII is sexual harassment,<br />
another characteristic of their workplaces that sex workers hope fuller regulation would<br />
ameliorate. In 1986 the Supreme Court recognized that sexual harassment, whether<br />
conditioning terms and conditions on sex or creating a hostile work environment,<br />
comprised impermissible sex discrimination under Title VII. 181 The standard for sexual<br />
harassment is that employers will be liable for failing to prevent unwelcome sexual<br />
advances. [fill in] In particular, employers are found liable where “sexual provocation<br />
was not an essential part of the job and invited customer harassment.” 182 While a<br />
nominally universal norm, parties dispute whether there should be different standards,<br />
depending on the type of workplace. 183<br />
In sum, anti-discrimination law operates in two registers. Formally, age, religion,<br />
national origin, and sex each have bfoq’s. Bfoq’s for sex are complex and unpredictable,<br />
with some courts giving some deference to both privacy and sexual gratification. Race<br />
and disability nominally do not have bfoq’s, but several commentators conclude that race<br />
has an implied bfoq for appearance-based industries.<br />
In the end, then, an overview of labor regulation suggests the diversity of<br />
workplaces. It is unclear which, exactly, sex bargainers invoke when they claim “just<br />
labor,” although a safe guess is they seek to invoke the archetypal manufacturing<br />
workplace, which is subject, at least formally, to the strictest form of regulations for<br />
Advocates urge conceiving commodified sex as “just labor” to achieve a variety<br />
of effects. For anyone interested in social justice ameliorating the conditions of those I<br />
the sex industry should be an easy cause to support. Yet, there are some unperceived<br />
downsides to this framework. The sex as “just” labor then tends to elide and obscure the<br />
179 Robinson, supra note [x], at 34. Compare Robinson, supra note [x], at 40 (“advocate[ing] a different<br />
approach that acknowledges First Amendment concerns and focuses not on whether a female can<br />
‘authentically’ play a male, but on whether the sex of the character could be changed without doing<br />
substantial harm to the narrative.”) with Franks, supra note [x], at 498 (“Despite Congress’ omission of<br />
race from the BFOQ provision, people accept the reasonableness and morality of recognizing a BFOQ for<br />
race, at least in some instances involving the entertainment industry. Indeed, to demonstrate the necessity<br />
of a race BFOQ, some scholars use as their prime example the need to employ black actors to portray black<br />
characters.”).<br />
180 See Franks or Robinson (speculating on reasons for absence of litigation). Even Deborah Rhode, in her<br />
recent book urging that appearance should be impermissible under discrimination law, makes an exception<br />
for the “appearance” industries of acting, modeling, and stripping. RHODE, supra note [x], at [pincite].<br />
181 See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Prior to the Supreme Court’s ruling,<br />
some appellate courts had recognized sexual harassment as a viable cause of action under Title VII. [add<br />
citations].<br />
182 [add citation]<br />
183 See infra notes [x] and accompanying text.<br />
32
diversity of workplaces. Within these, regulation against both danger and degradation<br />
take very different forms, according to the workplace. It is unclear that the mere fact of<br />
recognizing sex as labor will yield the regulatory effects advocates envision. In addition,<br />
as the next Section shows, not only are there a diversity of workplaces, but there are also<br />
a <strong>Sex</strong> workplaces differ not only from many other workplaces, but also from each other.<br />
The next Section explores both the diversity of sex workplaces, and the distinctive<br />
challenges of regulating them, in order to contemplate whether and how sex workplaces<br />
could be more effectively regulated in order to ameliorate both danger and degradation.<br />
Within this, the particular manifestations of sex workplaces may not fit seamlessly.<br />
III.PROFESSIONAL SEX: A NEW MODE OF WORK<br />
“[J]ust what is so unique about sex-work?” 184<br />
Determining the status of prostitution is complicated. While some countries<br />
completely criminalize prostitution, in most sex work has some sort of legally liminal<br />
status, in which aspects of it are criminalized and others are not. 185 Importantly, many<br />
jurisdictions differentiate between prostitution itself, i.e., selling sex, brothels, or<br />
operating an establishment in which prostitution occurs, and “pimping,” defined<br />
variously as “assistance” or “living off the earnings of prostitution,” "controlling<br />
prostitution for gain,” or “exploitative” or “coercive” behavior. 186 In one study, of 100<br />
countries surveyed, thirty-eight currently completely criminalize prostitution. 187 In every<br />
country that criminalizes prostitution, brothel ownership and pimping likewise are<br />
illegal. 188 Liability and penalties vary by country, and, within some countries, by<br />
jurisdiction. 189 In [where should Nicaragua go in this paragraph???] seven countries<br />
184 Tinsman, supra note [x].<br />
185 Procon.org is a website that surveyed 100 countries, seeking to be “inclusive of major religions,<br />
geographical regions, and policies towards prostitution."<br />
http://prostitution.procon.org/view.resource.php?resourceID=000772 See also [let’s add some other<br />
sources/cites with parentheticals; maybe some human rights and/or ngo’s?]. Germany exemplifies how<br />
difficult it can be to discern the status of prostitution. Some set Germany’s legalization date at 1927, when<br />
the country passed its Law for Combating Venereal Diseases. Others though insist that the relevant date is<br />
the 2002 passage of the Prostitution Act because prior to that, although prostitution was legal under the<br />
German Constitution, both regulations and court decisions restricted the legal and social welfare rights of<br />
prostitutes because prostitution was considered in violation of Germany's moral code. [add the relevant<br />
cites to Germany.]<br />
186 [add cites to these quotations]. See also [add cite] (defining pimping as "lives wholly or in part on the<br />
avails of prostitution of another person."). Rationales differ. Some jurisdictions target brothels and<br />
pimping to prevent “organized” prostitution. Others [add other rationales].<br />
187 [add cite to procon website]. These include China, Egypt, India, both North and South Korea, Jamaica,<br />
Afghanistan, Slovenia and Romania, and Kenya and South Africa.] [eventually we’ll need to add cites to<br />
the countries themselves, but not right now].<br />
188 In China prostitution is criminalized “as a social practice that abrogates the inherent rights of women to<br />
personhood.” (Taiwan, on the other hand, legalized prostitution in 2009.) [add other examples of<br />
rationales].<br />
189 In Egypt, the penalty for prostitutes is 3-36 months in prison and/or a fine. In Iran, prostitutes can be<br />
imprisoned, lashed, or executed by stoning; brothel owners can be imprisoned for up to ten years, and<br />
customers also face criminal penalties. [can you find some other examples apart from Egypt and Iran that<br />
demonstrate the array of penalties?] Some countries impose only fines [add examples?] Some countries<br />
33
prostitution, brothels, and pimping all are legal. 190 Another forty countries have partially<br />
decriminalized sex work, otherwise known as restricted legality. In addition to the<br />
brothel/pimping differentiation, 191 countries can restrict legality by geography, 192<br />
gender, 193 jurisdiction, 194 “role,” that is buying or selling, 195 sex act, 196 and the role of the<br />
differentiate punishment by gender or by role, i.e., prostitutes and customers. [add examples]. [also find a<br />
country where penalties differ by jurisdiction: maybe Australia and U.S.?]<br />
190190<br />
These eight are Ecuador, Germany, Greece, Indonesia, the Netherlands, New Zealand, and Venezuela.<br />
[add procon cite; and again, eventually we’ll want the cites to the countries themselves.] As in<br />
jurisdictions that have criminalized sex work, jurisdictions that have legalized it embrace different<br />
rationales. For instance, Argentina’s constitution provides, "The private actions of people that do not<br />
offend in any way the public order and morality, nor damage a third person, are only reserved to God, and<br />
are exempt from the authority of the magistrates." [add other, different rationales].<br />
191<br />
For instance, in ten countries, prostitution and brothel ownership are legal, but pimping is not. See, e.g.,<br />
[add cite to procon] (Belgium, Columbia, Costa Rica, El Salvador, Guatemala, Panama, Peru, Singapore,<br />
Switzerland, and Turkey). [what about Italy and Israel, which only speak to pimping, which they<br />
criminalize?] Other countries criminalize both brothels and pimping. [which countries are these?]. As<br />
noted above, in no country is pimping legal if brothel ownership is not. See supra note [x] and<br />
accompanying text.<br />
192<br />
Several countries ban prostitution from “public” places. France and Canada both explicitly restrict<br />
prostitution to “private” places and make solicitation in public places illegal. In the United Kingdom<br />
"persistent" solicitation in public places is illegal, as is “kerb crawling.” Finland [fill in]. [which country<br />
says this? “Selling and purchasing sex in public is illegal.”] Other countries, such as Singapore, take the<br />
opposite approach, limiting prostitution to designated “red-light districts.” [add procon and country cites].<br />
In Mexico, prostitution is legal, but many cities restrict it to certain districts. [add procon and country<br />
cites].<br />
193<br />
Some countries engender the criminalization or liability for prostitution. In Bangladesh female<br />
prostitution is legal but male prostitution is not. [add procon and country cites]. In Egypt, the man,<br />
assumed to be the customer, is considered a witness and is exempt from punishment in exchange for<br />
testifying against the prostitute, assumed to be a woman. [add procon and country cites]. [find other<br />
gendered examples].<br />
194<br />
In Mexico and Australia, prostitution is left to the individual states, although it is criminalized in the<br />
former and legal in the latter. [eventually we’ll add cites to these; for now just put in the procon cite]. The<br />
United States leaves the status of prostitution to the individual states, but it is criminalized everywhere<br />
except for eleven rural counties in Nevada, with populations of less than 250,000. See supra note [x], and<br />
accompanying text. Between 1980 and 2009, “indoor” prostitution was legal in Rhode Island because of an<br />
unintentional legislative loophole. The state enacted new legislation criminalizing all prostitution in<br />
November 2009. [we’ll need cites to all of the Rhode Island stuff]. Some municipal jurisdictions, such as<br />
San Francisco, intermittently contemplate decriminalization. [add cite to Prop K debate]. See also Law,<br />
supra note [x], at [pincite]. [figure out after previous section is done] Some call for explicit nonenforcement<br />
of state laws at the local level or for implicit deprioritizing. See, e.g., Law, supra note [x], at<br />
[pincite] (discussing San Francisco and New Jersey Task Forces as case studies of local reform); Leigh,<br />
supra note [x] (discussing San Francisco Task Force recommendations to suspend enforcement of state<br />
laws against prostitution and redirecting resources to services for sex workers and enforcing nuisance<br />
laws).]<br />
195<br />
In some countries, selling sex is legal, but buying it is criminalized. This is the case in Iceland,<br />
Malaysia, Norway, and Sweden. [is this next statement accurate?] These countries recently introduced this<br />
differentiation, influenced in large part by feminist/sex work advocacy groups.<br />
196<br />
For instance, Japan criminalizes only intercourse; other sexual acts are legal. [add procon and country<br />
cites].<br />
34
states. 197 Finally, the “status” of prostitute can influence other rights and capabilities,<br />
almost universally negatively. 198<br />
Despite the complexity of how countries impose and implement criminalization,<br />
the overwhelming majority have a limited vision of regulatory options. They are limited<br />
to complete criminalization, or variations on decriminalization. 199 Those that have<br />
moved from decriminalization to active “legalization” through regulation mainly limit it<br />
to mandating age limits, health requirements, and registration on sex workers. 200 A very<br />
few countries have, following the erotic exceptionalist call, legalized prostitution without<br />
enacting any other accompanying regulation. 201 More often, the absence of regulation<br />
appears to be a regulatory vacuum than an intentional alignment with exceptionalism. 202<br />
The lone exception is New Zealand, whose Occupational Health and Safety agency has<br />
issued a comprehensive set of guidelines for the sex industry. 203 In sum, the regulatory<br />
imagination seems extraordinarily constrained. What would an approach look like, that<br />
197<br />
In Turkey, the brothels are state-owned, and it is illegal to “shelter a person for prostitution.” [add<br />
procon and country cite].<br />
198<br />
For instance, in Turkey sex workers cannot be married and their children are barred from occupying<br />
high rank in the army or police, or marrying persons of such rank, although they can work in other areas of<br />
government service. [add procon and country cites]. In the United States, prostitution can preclude an<br />
alien from obtaining a visa. Immigration and Nationality Act, 8 U.S.C. 1001, et. seq., as amended (naming<br />
as ineligible for a visa anyone who “is coming to the United States solely, principally, or incidentally to<br />
engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa,<br />
admission, or adjustment of status.”). In Nevada, prostitutes cannot [check on this: I think they are<br />
restricted re where they can live, etc. Check India too].<br />
199<br />
[fix this] Prabha Kotiswaran points out how criminal, prohibitory laws have become fetishized by both<br />
sides of the decriminalization debate. “While the normative status of sex work remains deeply contested,<br />
abolitionists and sex work advocates alike display an unwavering faith in the power of criminal law; for<br />
abolitionists, strictly enforced criminal laws can eliminate sex markets, whereas for sex work advocates,<br />
decriminalization can empower sex workers.” Kotiswaran, supra note [x], at 579. In sum, contra<br />
Foucault’s injunctions against juridical understandings of modern regulation, “Both camps thus view the<br />
criminal law as having a unidirectional repressive effect on the sex industry.” Kotiswaran, supra note [x],<br />
at 613. Elsewhere, Prabha Kotiswaran cautions “irrespective of our political positions on sex work, it is not<br />
possible to sustain a corresponding preference for regulation without acknowledging that legal rules are<br />
perpetually ensnared in complex rule networks and without studying the disparate effects of the most wellmeaning<br />
legislative proposals at the most minute level of negotiations between sex workers and other<br />
stakeholders in the sex industry.” Id. at 625. See also, Law, supra note [x], at [add pincite] (describing<br />
suggested feminist reforms, including equal criminalization, criminalizing pimping, [add others]).<br />
200<br />
Compare Austria (requiring prostitutes to register, undergo periodic health examinations, be 19 years old<br />
or older, and pay taxes); Latvia (requiring monthly health check); Netherlands (prostitutes must be over 18<br />
and clients must be over 16 and prostitutes must register and pay taxes); Singapore (requiring mandatory<br />
health checks, that prostitutes be 16 years or older, and confine their work to designated districts);<br />
Switzerland (requiring prostitutes register with city authorities and health authorities and get regular health<br />
checks). Other countries impose far more intrusive requirements and restrictions. In Turkey and Greece,<br />
health checks can be as often as twice a week and in Turkey workers must carry an identity card indicating<br />
the dates of his or her health checks. Costa Rica has minimal requirements. Prostitutes “must be over 18<br />
years old and carry a health card showing how recently they had a medical check-up.” [find some<br />
interesting variations on these].<br />
201<br />
See, e.g., [fill in Brazil code and regulation].<br />
202<br />
Some countries do not address or define prostitution at all, leaving its status unclear. This is the case in<br />
long-standing nations such as Bulgaria, Spain, and Indonesia, as well as newer ones. In Kyrgyzstan, for<br />
instance, prostitution is not a crime but its exact legal status is unclear. [we’ll need the procon and<br />
eventually the country citations for these].<br />
203<br />
A GUIDE TO OCCUPATIONAL HEALTH AND SAFETY IN THE NEW ZEALAND SEX INDUSTRY [add citation].<br />
35
took sex seriously as work, while simultaneously confronting the real and high<br />
vulnerability its workers experience?<br />
A. Markets for <strong>Sex</strong><br />
Section II argued that assimilationists’ insistence that sex work be regulated like “any<br />
other labor” ignores the diversity of workplaces. This section makes an additional point.<br />
In the strong form version the homogeneity of labor claim insists and in the weak form<br />
assumes that sexual labor is no different from other, non-sexual work. But, as this next<br />
part shows, sex workplaces are not like most workplaces. Rather, they are distinct in<br />
ways that have regulatory significance.<br />
<strong>Sex</strong> workers, typically women or trans, cater to a customer base that is<br />
overwhelmingly male. 204205 <strong>Sex</strong> work is not alone in these ratios, but it can engender<br />
distinct dynamics that pose real risk to the workers. For instance dancers frequently work<br />
for multiple customers simultaneously, either in clubs or for parties—bachelor, fraternity,<br />
work, etc.—at outcall locations. 206 These customers often patronize them in all-male<br />
groups, seeking and expecting homosocial bonding through drinking and verbal and/or<br />
physical sexual interaction with the dancer(s). As several sociological studies have<br />
found, participants in these spaces may experiment with and negotiate social norms and<br />
expectations of masculinity that differ from and would be sanctioned and deemed<br />
unacceptable in other social contexts. 207 [see if you can find anything on not unlike<br />
“mobs” that turn on one outsider and lots of insiders?] Customers’ significant alcohol<br />
consumption can further loosen social inhibitions and lubricate behavior that puts<br />
workers at risk of both verbal abuse and violence. 208 Heightening the risk to workers, in<br />
clubs not only are the customers often intoxicated but dancers’ “labor” may entail<br />
“hustling” drinks from customers, which the dancers are then expected to drink. 209<br />
Unlike other workers, some sex professionals are expected to labor in a state in which<br />
their own judgment is definitionally impaired. 210211212 This particular combination of<br />
204 “an overwhelmingly female work force that services an overwhelmingly male clientele. (Male<br />
prostitutes also work for predominantly male customers.)” Chancer 151; [craft footnote on gender ratios<br />
and dynamics; where can we find this?]<br />
205 Trans.<br />
206 [some men, often regulars, patronize on their own; start by looking at Siobhan Brooks’ book]<br />
207 [find quote that the behavior is risky to the dancers.]<br />
208 The service is also contingent on the customer’s own performance and body. Many men anticipate and<br />
expect erections and orgasm from their paid sexual encounters. Not all sex work requires this; specialized<br />
and fetish markets, for instance may not. Other work also relies on bodily exertions, innate talents, or<br />
developed skills from customers. Personal trainers, sports coaches, and x each rely on some type of<br />
physical exertion and talent or skills from their client. Still, sexual expectations can create a different and<br />
the stress it can induce on the customer. This can be a prompt for violence, as it undoubtedly is not among<br />
trainees or athletes taking lessons who feel they are not performing to the social or trainer’s expectations.<br />
209 [add citation]<br />
210 In contrast, most workers do not work in an intoxicated state, and indeed, doing so would be grounds for<br />
termination./As an initial matter, in most workplaces, workers are not permitted to drink alcohol. In fact,<br />
drinking on the job would be grounds for termination from many jobs (although there are some curious<br />
exemptions: many professionals may drink or are expected to drink when entertaining clients). This rule<br />
extends to those who work in market sectors that serve alcohol, including restaurant, casino, and bars<br />
[check this]./ Even workers who serve alcohol, i.e., food servers, bartenders, liquor salespeople, and casino<br />
workers, typically have restrictions or limits imposed on how much and when they can drink themselves.<br />
36
gender ratios, homosociality, and alcohol consumption has heightened hazards for<br />
dancers in particular and also other sex professionals who work in similar contexts.<br />
A second distinctive characteristic of the work is the dangerous blurring of when sex<br />
professionals are “on” or “off” duty. 213 In sex work, part of what is being “sold” is a<br />
fantasy of interpersonal connection. 214 Customers purchase vastly differing fantasies, but<br />
overwhelmingly the scenario entails erotic attraction and personal interest in them by the<br />
worker. 215 Good sex workers deliver the fantasies their customers want. It should not be<br />
surprising that some customers confuse the fantasy with reality and attempt to pursue the<br />
relationship beyond the commodified contract. 216 (This happens to other service workers<br />
as well, who may be stalked or harassed by clients or customers, but the risk is higher in<br />
sex work, given that the fantasy is embedded in an actual sexual relationship and interest,<br />
feigned or not. 217 ) One regular customer at a dance club in New York, who often<br />
volunteers to escort dancers to the subway or to hail a cab after their shifts, observed,<br />
“It’s leaving the club that’s dangerous.” 218 Heightening the risk is the fact that some<br />
employers appear to purposely blur lines between work/off-work. They may demand<br />
sexual favors, or “entertainment,” for themselves or for friends, as a condition of<br />
employment or receiving favorable treatment, such as good shifts or referrals to clients. 219<br />
In contrast, factory workers typically are not asked to make widgets for the boss after<br />
hours. Both of these dynamics are exacerbated by the attribution to sex professionals of<br />
an identity as always available and willing, or, alternatively, as a less valuable human<br />
being because she has commodified her sexuality. Both beliefs can lead to threatening<br />
behavior towards workers, including stalking, harassing, even assault and murder. 220<br />
211 Meth case here?<br />
212 New Zealand on prostitutes: It is strongly recommended that sex workers (as is the case with any<br />
other workers) do not use alcohol on the job, as this may impair judgment<br />
and could result in sex workers making decisions that may affect the<br />
health and safety of themselves and clients.<br />
213 “Even as the wage contract establishes the workers as subject to the boss’s command in the employment<br />
sphere, it simultaneously constitutes that sphere as a limited sphere. The boss has no right of direct<br />
command outside it.” Fraser 176-77<br />
214 As Nancy Fraser says, “what is sold is a male fantasy of ‘male sex-right,’ one that implies its<br />
precariousness in actuality. Far from acquiring the right of command over the prostitute, the john gets only<br />
the staged representation of such command. A staged representation of command, however, involves a<br />
performative contradiction. The fantasy of mastery that is sold through prostitution is undermined even as<br />
it is enacted.” Fraser, supra note [x], at 179.<br />
215 But see [domination fantasies.]<br />
216<br />
217 Add brooks footnote<br />
218 BROOKS, supra note [x], at 96.<br />
219 Good shifts for dancers; outcall dispatchers for dancers and prostitutes. <strong>Sex</strong> is also expected off the job.<br />
For instance, dancers in Minneapolis claimed their supervisors demanded sexual favors in exchange for<br />
employment related requests such as time off. Fischer, supra note [x]. Sanchez, supra note 21, at 567<br />
(reporting that men who serve as agents for exotic dancers frequently insist upon sex as a condition for a<br />
referral); [add others]. One particular strong critique characterizes it as “a continuous course of<br />
circumstances beginning with work and ending with injury.” [add citation].<br />
220 Maticka-Tyndale at 96. Law professors also have blurred on-site/off-site identities. [Elaborate]<br />
37
While many customers get and respect the boundaries between “on” and “off” work, the<br />
nature of the work lends itself to confusion, thereby heightening risk. 221<br />
Similarly, the line between re-negotiating terms and harassment or assault likewise<br />
can be blurry. A dancer who is asked to perform a sexual act on a client may prefer not<br />
to do so, be offended, or even feel threatened or coerced. Another dancer, or the same<br />
dancer in different circumstances, might be open to the request, depending on the price<br />
point, client, or context. The same is true for a prostitute who has agreed in advance to a<br />
certain sexual act but who may or may not be open to requests to expand the menu.<br />
While workers in non-sexual contexts might characterize the request for additional work<br />
or more work or different work as unpleasant, exploitative, and/or coercive, law and<br />
society do not typically perceive such requests as criminal behavior the way that<br />
violations of sexual contracts can easily cross into sexual assault. 222<br />
A third meaningful distinction stems from the fact that sexual labor entails a social<br />
stigma that is almost unique. [add quote that links up to the isolation point that comes<br />
next] The stigma results in significant social isolation as it interferes in other social<br />
relationships with friends and family and, importantly, with other workers. For instance,<br />
dancers trying to unionize have found their organizing efforts rejected by several<br />
unions. 223 In addition, while other workers who labor in stressful or high-risk jobs can<br />
find solace from family, friends, and community, many sex professionals hide their work<br />
from those closest to them, resulting in profound social isolation. 224 Some scholars also<br />
attribute the isolation to the extreme control that employers exert over sex workers which<br />
“leads to the erosion of other relationships and thwarts personal autonomy.” 225226227 In<br />
221 “Even as the wage contract establishes the workers as subject to the boss’s command in the employment<br />
sphere, it simultaneously constitutes that sphere as a limited sphere. The boss has no right of direct<br />
command outside it.” Fraser 176-77<br />
222 Two hypotheticals may suffice. Imagine a law professor/yoga instructor whose student requests<br />
additional tutoring outside of class. The professor may or may not feel that the request is appropriate. He<br />
may or may not comply with the request. If he does comply, he may or may not charge additional fees, or<br />
negotiate a different deal. Alternatively, imagine a mine worker. The supervisor requests that the miner<br />
work late, or perhaps go deeper into the mine than agreed to. We can imagine that union rules might<br />
determine the outcome of the request, assuming those rules are adhered to. Alternatively, we can imagine<br />
the miner sticking to the agreed upon deal, or doing the additional, different work for more money or<br />
overtime. In both instances, the worker might feel the request was inappropriate and ask that going forward<br />
the agreed to contract will govern the interaction. The interaction would need to be an extreme one,<br />
though, to become criminal in nature. (Unless the union contract was being violated, which is itself a<br />
reason some employees strongly prefer a union shop. Or don’t.)<br />
223<br />
224 “[B]ecause of the stigmatized nature of their work, many dancers cannot tell their families or friends<br />
about what they do for a living.” Chun, supra note [x], at 233. (can’t go home to families because families<br />
are implicated, if coerced? [(or, same for other forms of labor; honor piece? Carl’s china example???)]<br />
225 See also In her essay on exotic dancers, Sarah Chun finds they are “vulnerable to exploitation by the<br />
clubs that employ them because they lack the usual support networks that workers in other industries rely<br />
on for advice and encouragement.” Chun, supra note [x], at 233(footnote omitted); see also<br />
McGinley, supra note [x], at 83 (footnote omitted) (“Even though legalized prostitution is<br />
accepted and even condoned by residents because the brothels are good for the local<br />
economy, the prostitutes are stigmatized and prostitution is hidden.”).<br />
226 Baldwin, supra note [x], at 197 (footnote omitted).<br />
38
fact, anti-prostitution activist and scholar Margaret Baldwin contends that the isolation of<br />
women who work in the sex industry is not unlike that of battered women. 228 Baldwin<br />
also speculates that “[p]rostitution and stripping also require women to create an illusion<br />
of personal interest in the customer, a dynamic that in and of itself hedges the difference<br />
between work and personal life.” 229 Importantly, the stigma runs both ways, to also<br />
afflict customers, who are largely unwilling to admit they consume commodified sexual<br />
services. 230 Unlike those who consume fossil fuels produced by coal miners, “[m]any<br />
people watch pornography, but few are willing to write to their assemblyperson about<br />
it.” 231<br />
Of course some contend this stigma is a product of the criminalization of sexual<br />
labor. Stigma is associated with most illegal activities (and many legal ones associated<br />
with lower classes) and can be exacerbated by gender. 232 Yet other criminalized<br />
activities do not incur the intensity of the stigma associated with sex work. Some lawbreakers,<br />
including drug dealers and even, ironically, pimps, enjoy cultural<br />
romanticization. In contrast, the stigma associated with commercial sex appears to stem<br />
from deep-seated biases, discomforts, and ambivalences about sex, which, while<br />
culturally specific, are almost universal in their attribution of differential meaning to men<br />
and women and particularly to prostitutes. 233<br />
Finally, while autonomy is a concern for all workers, sex work puts a distinct spin on<br />
it. 234 Feminists have fought long and hard for consent to be the determining principle in<br />
the legal governance of sex. 235 These liberal iterations of sexual agency and autonomy<br />
that characterize our current legal and moral moment mandate that a person can change<br />
their mind and withdraw consent at anytime, including during a sexual encounter. 236 In<br />
keeping with this autonomy premium, sex professionals insist they should be able to<br />
refuse their services to any customer for any reason and change their mind and withdraw<br />
consent at any time while a sexual service is being provided. 237 Importantly, they include<br />
among these reasons racial and gender preferences and biases. <strong>Sex</strong> workers may, and do,<br />
restrict their clientele based not only on a potential customer’s gender (which should not<br />
surprise us), 238 but race as well. 239 Disability proves to be is a fascinating category of its<br />
227<br />
Indeed, Some abolitionists oppose the “labor” rubric do so because of the ill effects of sex work on<br />
participants, which they characterize as akin to post-traumatic stress disorder. Others would say it’s the<br />
nature of the work/the subordinating circumstances.<br />
228<br />
[add cite]<br />
229<br />
Baldwin, supra note [x], at 198 (footnote omitted).<br />
230<br />
[comics; fred cherry]<br />
231<br />
Rutman, supra note [x], at 558 (footnote omitted).<br />
232<br />
Martha Nussbaum offers an interesting contrast with the stigma she associates with domestic workers.<br />
[contrast with Nussbaum on stigma]<br />
233<br />
[add footnote]<br />
234<br />
[check with marion re germinal pieces on worker autonomy]<br />
235<br />
Consent governs not only rape law, but also sexual harassment [am I missing other sexual regimes?]<br />
236<br />
237 [add quotes].<br />
238 Some sex workers do not discriminate on the basis of the sex or gender of customers, regardless of their<br />
own orientation. Others, though, do. Many sex professionals who identify as straight do not provide<br />
sexual services to women, and those who identify as lesbian may limit their clientele to women.<br />
239 [footnote re these]. See also age?<br />
39
own in sexual commerce. 240 Thus, sex professionals largely embrace and insist on the<br />
same norms of personal choice and preference that govern non-commodified intimacy.<br />
But this puts sex professionals in direct conflict with anti-discrimination and consumer<br />
protection law.<br />
The 1964 Civil Rights Act prohibits discrimination [insert language] against<br />
consumers. Similarly, [add other protections from consumer law]. The Americans with<br />
Disabilities Act requires “reasonable accommodations” and prohibits discrimination on<br />
the basis of the disability. Finally, the ADEA [fill in relevant portion.] This means that<br />
workers in the service industry cannot refuse to serve customers based on race/gender<br />
and other suspect characteristics. Indeed, doing so triggers legal liability for their<br />
employer. Sole proprietors face the same restrictions. [is that right?] In addition, when<br />
it comes to service workers’ completing a contract or transaction, while specific<br />
performance is off-limits as a legal remedy, there are other constraints on workers’ rights<br />
to refuse service. 241 Declining to serve a customer could be grounds for termination or<br />
other sanctions. Thus the sexual nature of sex work may be in tension with some of the<br />
standard anti-discrimination and other egalitarian measures that protect customers and<br />
consumers of paid services.<br />
Thus, while it may be tempting to “view[] them through the same labor lens as<br />
other workers,” sex workplaces are not like “most” workplaces/sex work is not like<br />
“most” work. 242 Contrary to the essentialist assimilationist claim, most workplaces are<br />
not characterized by the particularities of sex work: the culture of alcohol, drinking, and<br />
drugs; the homosocial “mob” context; the blurred line between legitimate re-negotiations<br />
and criminal assaults; a similarly blurred line between on-site/off-site (that is on-duty/offduty)<br />
identities; and employer expectations of “free” services that all can combine to<br />
create distinct risks and hazards. Nor does most work entail the stigma and resulting<br />
isolation or threaten entrenched liberal norms of autonomy in the same way. The<br />
assimilationist claim obscures the distinctive characteristics of much sexual labor and the<br />
distinct regulatory challenges it poses. The remainder of this Section explores a potential<br />
regulatory structure that would try to take account of and ameliorate these risks.<br />
B. [insert heading]<br />
On the one hand, sex professionals share many basic working conditions with nonsexual<br />
workers, e.g., exploitation by management, weak rights, dangerous and unsanitary<br />
working conditions, as well as other gender-based harms, e.g., wearing stiletto heels and<br />
sexual harassment. Many existing workplace regulations would also apply to sex<br />
workplaces. For example, exit signs and fire extinguishers are mandatory in brothels and<br />
dance clubs as they are in factories and restaurants. As other commercial sexual<br />
establishments emerge, they would be subject to these same regulations. Other<br />
requirements will be relatively easy to enforce, for instance that stages, poles, sex toys,<br />
beds, i.e., “equipment,” be safe and meet specified standards of hygiene. 243 However<br />
240 [add surrogate material]<br />
241 For instance, barring extenuating circumstances, taxi drivers typically cannot just drop a customer off<br />
anywhere, and restaurants must serve their patrons. [think about this one]<br />
242 Moukalif 254<br />
243 [Elaborate how OSHA would apply; maybe lift from condom stuff re porn?]<br />
40
other types of risks and hazards, such as the violence, harassment, and discrimination<br />
described in Section II.A and III.A, tend to be specific to or intensified by sex work.<br />
Ameliorating and managing these would require a different regulatory structure.]<br />
[Readers: I have an extended summary of new regulation from New Zealand and am<br />
contemplating whether to insert it here]<br />
As described in Sections II.A and III.A, violence poses one of the biggest risks to<br />
sex professionals’ well-being. But violence threatens some sex workers more than<br />
others. Isolation poses the biggest threat. Elizabeth Bernstein finds that “while it is true<br />
that streetwalkers are at exceptionally high risk of physical violence, by their own<br />
accounts, the chief danger exists when they’re alone with a john—in a car or hotel<br />
room—not standing on the street.” 244 Audrey Macklin’s study of lap-dancing in Canada<br />
observes the same dynamics at work: “It requires little imagination to recognize that the<br />
risk of harm to performers in the form of non-consensual contact could only be<br />
exacerbated in circumstances where the patron and the performer are secluded from<br />
observation.” 245 The empirical evidence bears out these observations: [double-check the<br />
empirics on brothel, in-home, and street prostitution violence] Hence, although some<br />
municipal codes associate public sexual acts with “indecency,” from the workers’<br />
perspective, the more “private” the sexual activity, the greater the risk. 246 In this view,<br />
the degree of risk correlates not with the type of activity but with the isolation of the<br />
interaction.<br />
We might map this sexual geography as follows. Organizational forms in which<br />
workers have no personal contact with clients, and importantly no personal contact with<br />
employers or third party intermediaries/managers, have the least risk. This would<br />
include sex professionals who provide phone sex or new media sexual services, as long<br />
as they remain anonymous to customers and have limited interactions with their<br />
employers or intermediaries. 247 The latter caveat is important as employers can pose as a<br />
great a threat as do customers. 248 In sum, in sexual geographies with no physical or face<br />
to face interactions, the risk of violence is minimal. 249 Activities within this institutional<br />
form ought not require significant regulation to protect workers, other than clear rules and<br />
protocols to preserve anonymity. 250<br />
244<br />
She continues, “In this regard, the pimps are of little or no use . . .” Bernstein, supra note [x], at 107<br />
(footnote omitted).<br />
245<br />
Macklin continues, “The curtain shielding what happens on the other side of it from the public and,<br />
therefore, judicial scrutiny is precisely what heightens the performer’s vulnerability; the parallels between<br />
the regulation of public and private space in these cases and historic patterns of judicial treatment of<br />
domestic violence are patent.” Macklin, supra note [x].<br />
246<br />
See, e.g., [add cites to municipal codes from a couple of prominent jurisdictions: check NY, LA, SF,<br />
Chicago, etc. Just 3 will do.]<br />
247<br />
Phone sex from labor/safety perspective probably unobjectionable (kids at home; safety; multi-tasking;<br />
available to all regardless of age, looks, etc)<br />
Authenticity/performativity: doing laundry or on the treadmill (heavy breathing)<br />
248<br />
See supra<br />
249<br />
But see [fill in citation that prsottitutes/sex workers are at higher risk of violence from partners, etc]<br />
250 Phone lines, etc.<br />
41
In contrast to this institutional form, face-to-face sexual services that occur in<br />
commercial establishments can pose a greater risk to workers. Brothels typically have<br />
private rooms in which the prostitutes provide services to clients; similarly, some dance<br />
clubs offer separate rooms or lounges for customers who want private lap-dances or<br />
massages. It is during these interactions, while isolated from others, that clients are most<br />
likely to assault or threaten workers. [find a good quote] In addition, as described above,<br />
many assaults and threats against sex professionals occur when they are leaving the<br />
establishment, i.e., in parking lots, on the street, etc.<br />
Although commercial establishments have a heightened risk of violence, these<br />
institutions are arguably the easiest to regulate for worker safety. Mandatory protections<br />
in sexual commercial establishments might include bodyguards, panic buttons, a security<br />
service, escorts out of the workplace, and surveillance if appropriate. 251 [fill in other<br />
relevant guidelines from New Zealand?] All of the regulations of this institutional form<br />
rest on two principles. The first is to ameliorate the risk correlated with isolation through<br />
surveillance and/or empowering the worker to quickly call on others. The second is to<br />
make the operator, not the worker, responsible for the risk reduction. As in other<br />
workplaces compliance with these requirements would be a condition of licensing for<br />
operators of these establishments. 252 “Scores” akin to restaurant sanitation ratings could<br />
be publicly posted to alert workers and customers alike to the potential for conditions that<br />
might compromise their safety.<br />
It is the final institutional form that generates the greatest risk of violence. In this<br />
sexual geography, workers physically interact with clients but outside of dedicated<br />
commercial establishments. Unlike those who work in brothels or clubs, these sex<br />
workers largely provide their sexual services in private homes, theirs or their clients’,<br />
rented spaces such as hotel rooms, or on the street or other public places. 253 They might<br />
work independently or for a third party intermediary, such as an escort service or [what is<br />
the term for an agency that sends outcall dancers?]. The defining characteristic of this<br />
sexual geography is its absence of an institutional infrastructure. Unlike brothel or club<br />
workers, outcall, street, and home-based workers serve clients in unregulated private<br />
contexts without any structural supports. These workers may serve multiple clients<br />
simultaneously, but do so without co-workers, managers, or even other customers who<br />
have a stake in the on-going stability of the enterprise, including the safety of its<br />
workers. 254 The presence of other stakeholders can provide formal or informal security<br />
for sex workers. In addition, in outcall or street work, unlike brothels and clubs, the law<br />
cannot mandate a thick security apparatus—panic buttons, security guards or bouncers,<br />
surveillance—because there is no stable worksite to regulate. <strong>Sex</strong> professionals working<br />
out of their own home have greater control over their circumstances, but even they may<br />
struggle to reduce risk. 255 If the worker is an independent contractor, working without a<br />
251<br />
Some brothels and clubs already include these safeguards. <strong>Work</strong>ers recognize and discuss risk<br />
management as they differentiate among worksites. See, e.g., BROOKS, supra note [x], at [pincite.] [Contra<br />
the bodyguard concern, informal practices at brothels include “a madam’s stationing herself near a room if<br />
she is concerned about the safety of a particular prostitute.” McGinley 105 fn omitted]<br />
252<br />
253<br />
Duke LAX rented house.<br />
254<br />
Domestic worker literature.<br />
255<br />
Many high-end prostitutes would resist this regulation, contending that they rely on closely monitored<br />
referral networks to carefully screen their clients and protect themselves. My point is that if they<br />
42
manager or intermediary, then she must absorb the costs of security completely on her<br />
own and cannot achieve the economies of scale that brothel and club operators can<br />
achieve with security systems and guards. Independent sex professionals may also resist<br />
revealing their profession to others and may resist the security apparatus that could<br />
compromise their privacy. Hence, because of its lack of institutional infrastructure and<br />
isolation, this sexual geography poses the greatest risk of violence and is the hardest to<br />
regulate.<br />
Recognizing these particular risks posed by outcall work, New Zealand has issued<br />
specific guidelines and protocols that include panic buttons, cell phones, as well as<br />
recommendations to carry flashlights in case of poor lighting. 256 [check other<br />
recommendations re outcall workers] Another protocol might be check-in systems, in<br />
which sex workers can confidentially document their schedule with the relevant customer<br />
information. This could function akin to an answering service or we could anticipate<br />
software companies creating applications that would store such information on the<br />
internet. (Regulations might also mandate body guards for outcall workers and those<br />
who work out of their own homes or other isolated venues, although this might make the<br />
cost unaffordable to most customers.) Finally, hotels could target sex work, offering<br />
rooms that provide security akin to brothels. For both third party intermediaries and sole<br />
proprietors, adhering to regulations would be a condition of licensing.<br />
In sum, when viewed on a continuum of sexual geographies, the more isolated the<br />
work the more danger it presents to the worker. Virtual interactions and minimal<br />
physical interactions with third party intermediaries are the safest as long as workers<br />
preserve their anonymity. Commercial establishments, i.e., club dancing and brothel<br />
prostitution, can pose significant risks but are the most susceptible to regulatory<br />
interventions that can increase worker safety. Regulations can require operators to<br />
provide a thick security apparatus as a condition of licensing. Finally, unlike brothels and<br />
clubs, in informal sexual geographies without a stable infrastructure workers are at the<br />
most risk. There is no stable worksite to regulate, i.e., require panic buttons, security,<br />
surveillance, and the worker is isolated from others who might provide formal or<br />
informal security. These workplaces will pose the greatest regulatory challenge, but New<br />
Zealand’s protocols provide a starting point. No regulation will eliminate the risk of<br />
violence of course; that is as impossible as it is in non-sexual workplaces. However, by<br />
taking seriously the institutional forms violence takes in sexual workplaces, we can<br />
certainly align sex work with the harm reduction approach found in other workplace<br />
safety regulation.<br />
Others have differentiated forms of sex work. 257 Yet, none of these differentiate<br />
professional sex along its institutional or organizational form, or what I call its sexual<br />
geography. The innovation of the sexual geography approach is that it replaces the<br />
common sex work classifications with one based on institutional form and risk. Most<br />
classifications of sex work tend/distinguish it according to legality or morality. In<br />
miscalculate, there are no protections in place from client violence. In particular, those who work out of<br />
their homes are vulnerable to stalking and harassing behavior.<br />
256 From the health axis of risk management, the New Zealand guidelines also encourage outcall workers to<br />
inspect the premises and [fill in]. See infra note [x] and accompanying text.<br />
257 And sex workers themselves have finely tuned senses of internal differentiation. Dancers often distance<br />
themselves from prostitutes[Strippers separate from].<br />
43
contrast, this geographic approach to risk is counter-intuitive in at least two ways. First,<br />
it defies the approach to sex work that classifies it along a continuum of proximity to<br />
penetration. It also departs from approaches that categorize sex work according to its<br />
legality. Hence, scholars, activists, and sex workers distinguish prostitution from the<br />
legal forms of professional sex: dancing, phone sex, etc. 258 In contrast to both of these<br />
categorization schemes, the sexual geography approach replaces a morality with a risk<br />
analysis. In this sense it is also attuned to the internal structure of sex work. As Prabha<br />
Kotiswaran notes, “<strong>Sex</strong> workers are highly internally differentiated according to their<br />
mode of organization of sex work and their relationship to the institution of the<br />
brothel.” 259 Her work emphasizes the spatial dimensions. 260 In sum, the sexual<br />
geography approach blurs the lines between prostitution and other legal forms of sex<br />
work in favor of a risk-based approach to regulation. 261<br />
258<br />
Even absent criminal law complications, there are vast differences among trades within the sex<br />
work industry. Consider, for example, organized dancing in direct contrast to organized<br />
prostitution. Exotic dancing is generally legal and is performed at a specific worksite (club) for a<br />
set hourly duration. Exotic dancers who work at a club or specific worksite arguably have a single<br />
employer—the club/site owner. Prostitution, however, is generally illegal, performed on a per<br />
client basis, and not necessarily at a single location for a set duration. Prostitutes are arguably selfemployed.<br />
Moukalif, supra note [x], at 255. [<strong>Adrienne</strong>: add others].<br />
259 581. Prabha Kotiswaran identifies several axes of differentiation: wage (per shot); conditions of labor,<br />
i.e., bonded labor, sharing income with brothel keeper, or independent; she also incorporates scale of the<br />
institution as influencing the autonomy of worker. Kotiswaran, supra note [x], at [pincite]. Kotiswaran’s<br />
approach also foregrounds the effects of regulation on both internal and external stakeholders. See also<br />
Law, supra note [x] ([discuss Law’s brothel descriptions as institutions]).<br />
260 “The brothel is an institution involving a particular configuration of the organization of labor, both<br />
sexual and social, backed up by a set of living and working arrangements, practices, ideas, norms,<br />
ideologies, and consciousness that are unique to the sex industry. These structural and cultural aspects of<br />
brothel-based sex work are fundamentally shaped by the spatial concentration of brothels in a red-light<br />
area. Unlike institutions such as the school, family, church, military, or prison that can be characterized as<br />
public or private, the brothel operates at the crossroads of the market and the family, harboring both sex<br />
workers and brothel keepers as well as their families. This permeates every aspect of institutional life<br />
within the brothel. For example, brothel rents reflect commercial levels, but the living conditions of the<br />
property do not approximate standards of commercial property since the brothel is the living space of its<br />
sex workers and brothel keepers, who are its laboring and entrepreneurial classes, respectively. Similarly,<br />
unlike the family where the wife socially reproduces her husband, in a brothel the sexual labor of several<br />
women, managed by the entrepreneurial labor of a brothel keeper (often a woman herself), socially<br />
reproduces a collectivity of male customers. At the same time, the brothel's economy, like that of the<br />
family, includes the labor invested by the brothel keeper in reproducing the sex workers as laborers as well<br />
as the reproductive labor that both sex workers and brothel keepers invest in their families who reside with<br />
them in the brothel.” Kotiswaran, supra note [x], at 585-86 (footnote omitted).<br />
261 “The commercial sex industry is a very broad field. Even within the realm of prostitution, the specific<br />
issues, and thus the most effective methods of organizing, vary by the type of sex work. Consider the<br />
differences that arise due to location choice alone. While street-and indoor-based prostitutes share many<br />
issues in common, practical organizing tactics must vary between the groups. An indoor-based prostitute<br />
may very well benefit from the use of an occupational-cooperative structure. But such a model is not<br />
necessarily realistic for the street-based prostitute who may benefit more from a structure like that of a<br />
worker center. Thus, even though both groups of workers may be looking toward the same policy and<br />
advocacy goals, the structures that best meet those goals necessarily vary.” Moukalif 269 (footnotes<br />
omitted). See also “The common sense understanding of prostitution therefore seems to center on a general<br />
44
Let me anticipate some objections. [Readers: the paper next rehearses autonomy,<br />
pragmatic, and intrinsic nature of the violence objections]<br />
In sum, the assimilationist claim obscures the diversity of sex work. It does not<br />
take account of the very real differences in commodified sex and how those translate into<br />
worker risk. By the same token, erotic exceptionalists ignore the very real hazards posed<br />
by sex work, insisting that the sexual nature of the labor should shield it from regulation.<br />
I have strong sympathy with both of these views. Yet, neither does very much to<br />
accomplish my goals of reducing the very real risks of sex work. To combat and manage<br />
this risk, this section has proposed a sexual geography approach parses sex work<br />
according to its institutional form and how that affects worker risk. Mapping sex work in<br />
this way provides a pragmatic approach to harm reduction. It should also appeal to<br />
feminists, on both sides of the debate, in that it suspends the typical classifications<br />
grounded in morality of continuum of heterosexual penetration in favor of assessment of<br />
danger. 262<br />
C. Discrimination<br />
The final major workplace challenge is discrimination. As described in Section II,<br />
[fill in their complaints.] Can harassment and discrimination be regulated and<br />
ameliorated in sexual labor? Yes and no. Let me elaborate.<br />
1. <strong>Sex</strong>ual Harassment<br />
As discussed earlier, sexual harassment is prevalent in sexual markets, and sex<br />
workers are particularly vulnerable to it. 263 As in other workplaces, unwanted and<br />
unwelcome sexual propositions and behavior comprise impermissible harassment. This is<br />
relatively straightforward to implement in cases of quid pro quo harassment, in which<br />
employers and intermediaries demand sex in exchange for employment or favorable<br />
terms. In fact, in sexual workplaces quid pro quo rules should be rigorously enforced<br />
precisely because of the prevalence of the practice and the particular vulnerability of sex<br />
workers to it. This is a prime area in which law can play a crucial role in shifting cultural<br />
norms and combating operators’ views of sex workers as their own personal sex slaves.<br />
In sum, there is nothing about the sexual nature of the labor that should subject workers<br />
to quid pro quo demands. In contrast, hostile environment doctrine is not such a neat fit<br />
with professional sex work.<br />
notion of exchange of money for sexual services or gratification. Under this perspective of prostitution,<br />
nude dancing for the sexual gratification of club patrons clearly is a form of prostitution despite the fact<br />
that it does not explicitly fit into the Minnesota statutory definition of prostitution because it does not by<br />
definition require sexual contact or penetration.” Fischer, supra note [x], at n.35; garb (contending antiprostitution<br />
statutes could be drafted to regulate porn films). McGinley article helps with blurring<br />
lines of prostitution, dancing, etc. and going to my geography focus instead<br />
262 [find cite: Tyra Banks show on hierarchy of sex workers: porn; prostitutes; strippers; etc, along an<br />
implied continuum of heterosexual penetration].<br />
263 See supra notes [x] and accompanying text.<br />
45
Some scholars contend that hostile environment doctrine should apply to sex<br />
workplaces, although the “welcomeness” standard should be adjusted to take account of<br />
the sexual nature of the work. 264 Ann McGinley is the strongest proponent of this<br />
view. 265266 She argues that because the work is sexual, [sexual conduct and advances in<br />
and of themselves cannot constitute a hostile environment.] “Behavior that creates a<br />
cause of action for sexual harassment in a non-sexualized workplace may actually<br />
constitute agreed-upon terms or conditions of the employment of workers in sexualized<br />
workplaces.” 267 /“There can be no alteration of a term or condition of employment if<br />
acquiescing to certain behavior is at term or condition of the job.” Hence, the<br />
assessment of sexual harassment should rest on workplace expectations. 268 “Because the<br />
essence of the business and the prostitutes’ role in the business is selling sexual acts to<br />
customers, sexual harassment will depend in large part on the negotiations and behavior<br />
agreed upon by the prostitute and the john.” 269 For both dancers and prostitutes she<br />
proposes that sexual harassment liability should turn on whether the complained of<br />
behavior is a term or condition of the job. 270 Staring, comments on body parts, sexual<br />
propositions, and general lewd comments all could be terms and conditions of a sex<br />
workplace. 271 Indeed, “[a]n exotic dancer who strips in a gentlemen’s club should<br />
reasonably expect more customer sexual behavior than the blackjack dealer or the<br />
cocktail waitress.” Still, “aggressive sexual behavior such as derogatory name-calling,<br />
clearly unwanted touching, stalking, or physical assault may alter those terms or<br />
conditions of the dancer’s employment and may create a legally cognizable hostile work<br />
environment.” 272 In these instances, employers have an obligation to implement<br />
procedures and policies to protect workers. 273274<br />
264 See Law: Some observers argue that women who work at Hooters, or in other contexts in which sexual<br />
titillation is a significant part (or all) of the service offered, assume the risk of sexual harassment, and that<br />
employers cannot reasonably be held responsible when it occurs. 416 Others assert that even when a woman<br />
is hired to offer some forms of sexual observation, conversation, or physical contact, the woman should<br />
nonetheless be free to determine what is welcomed, and that employers should be responsible for customer<br />
behavior that is unwelcome, beyond the scope of employment and reasonably known to the employer.;<br />
Even if sexual harassment law applies to erotic dancers, nude dancers, and commercial sex workers as a<br />
matter of theory and doctrine, women asserting such claims would face formidable practical difficulties of<br />
proof, both in showing that [*597] customer behavior was unwelcome and that the employer had<br />
reasonable opportunity to know and prevent it. 419 ]<br />
265 She contends that, “[w]hile the context of sexualized work environments is significantly different from<br />
non-sexualized work environments, Title VII should account for this context in determining whether a<br />
hostile work environment exists, rather than rejecting a cause of action altogether.” McGinley 92<br />
266 (McGinley article asks three questions: does T7 cover women working in sexualized environments, and<br />
if so, which women to cover? Finally, what should the standard be?); McGinley (“whether Title VII should<br />
recognize and redress sexual harassment suffered by employees at the hands of customers where the work<br />
is sexual in nature and/or the environment is highly sexualized.”)<br />
267 McGinley 68<br />
268 She makes this argument for both sex workers and others.<br />
269 McGinley, supra note [x], at 86.<br />
270 “There can be no alteration of a term or condition of employment if acquiescing to certain behavior is at<br />
term or condition of the job.” McGinley 99; McGinley’s 3 questions to pose re harassment on p. 102<br />
271 See also “For example, a term or condition of employment for exotic dancers in gentlemen’s clubs may<br />
require tolerating hooting or staring from the audience.” 102.<br />
272 104<br />
273 “an employer’s knowledge of a condition that poses a threat of harm to an employee may<br />
be viewed as deliberate or intentional when the employer permits the condition to continue.”<br />
46
When confronting harassment by customers, the fact finder should therefore consider<br />
the three-way relationship between the supervisor, the customer, and the worker. If<br />
the supervisor punishes or otherwise discriminates against women who refuse to<br />
accept harassing customer behavior or if there is an expectation that the employee not<br />
complain or respond negatively to the customer’s harassment, the jury should<br />
consider this fact as evidence that the woman did not welcome the behavior, even<br />
though she may have acquiesced to it. 275<br />
In the end, “[b]ehavior that creates a cause of action for sexual harassment in a nonsexualized<br />
workplace may actually constitute agreed-upon terms or conditions of the<br />
employment of workers in sexualized workplaces,” 276 but employers still have an<br />
obligation to police behavior that is not an expected part of the job.<br />
McGinley’s approach differs starkly from that of other commentators’. For instance,<br />
some have contended that, by its nature, sex work should be exempt from sexual<br />
harassment liability. In this view, exotic dancers, prostitutes, and other sex workers have<br />
“assumed the risk” of harassment, which should excuse employers from liability. 277 [add<br />
quote]. 278 Alternatively, Kelly Cahill characterizes their comparatively generous tips as<br />
“combat pay.” 279 McGinley opposes the assumption of risk and combat pay defenses.<br />
She charges that exempting these workplaces from liability for sexual harassment<br />
constitutes a windfall for employers: “advocacy of the assumption of risk defense fails to<br />
recognize that employers whose businesses rely on the display of masculine practices<br />
consciously create and benefit from an environment in which harassment is likely to<br />
occur.” 280 Because sexual commercial establishments rely on the fantasy that “the dancer<br />
is sexually and personally interested in the customer” to maintain their profits, “[t]o<br />
maintain this fantasy, the club walks a fine line between permitting the customers to<br />
believe that the exotic dancers are completely available to the customers and protecting<br />
the dancers from sexual harassment and criminal assault.” 281 The assumption of risk and<br />
combat pay constructions “it place[] on women the responsibility of regulating the<br />
sexualized aggression of heterosexual men without placing any responsibility on the<br />
individual men, on the employer, or on society in general.” 282 Reinforcing this point,<br />
274 Anna Nicole Smith: “consensual”; clubs might ban it though, or leave it up to the worker<br />
275 McGinley, 99<br />
276 McGinley 68<br />
277 See, e.g., Joshua Burstein, Testing the Strength of Title VII <strong>Sex</strong>ual Harassment Protection: Can It<br />
Support a Hostile <strong>Work</strong> Environment Claim Brought by a Nude Dancer?, 24 N.Y.U. REV. L. & SOC.<br />
CHANGE 271 (1998); Kelly Ann Cahill, Note, Hooters: Should There be an Assumption of Risk Defense to<br />
Some Hostile <strong>Work</strong> Environment <strong>Sex</strong>ual Harassment Claims?, 48 VAND. L. REV. 1107 (1995); Jeannie<br />
Sclafani Ree, Redressing for Success: The Liability of Hooters Restaurant for Customer Harassment of<br />
Waitresses, 20 HARV. WOMEN’S L.J. 163 (1997).<br />
278 See also As Yuracko says, “it is unlikely that if a strip club was held liable for not preventing sexual<br />
harassment of its strippers by customers it would be ordered to have its strippers wear clothes.”<br />
279 [add the relevant quote].<br />
280 McGinley, supra note [x], at 91.<br />
281 78 (footnote omitted);] Mcginley 81; Emotional labor point: In fact, “[i]f they were<br />
not prostitutes, may of htem state that they would like ot be social workers, nurses,<br />
teachers, or day care professionals.” McGinley 85 fno<br />
282 McGinley 91. [here?] See also Yuracko 229 (“Even if the law allows businesses to create jobs that<br />
involve selling sex appeal, why is it that so often women alone are perceived to have that sex appeal?”).<br />
47
from a “cost of accidents” perspective, the operator who “create[] the sexualized<br />
environment is on notice that customers will likely harass her employees and has the<br />
means to prevent and correct such harassment” 283 Finally, McGinley notes the class<br />
discrimination lurking in the assumption of risk defense. The best economic option for<br />
some working-class women may be to work in “sexy” work environments, and<br />
assumption of risk doctrine imposes a penalty on them for trying to find economic<br />
security. 284285<br />
2. Disparate Impact<br />
That leaves disparate impact discrimination claims. [fill in] As described above,<br />
racial discrimination against sex workers is present not just in hiring but terms and<br />
conditions of employment such as assignments of shifts, lucrative assignments such as to<br />
private lounges, and referrals to desirable customers. In addition, there is the expectation<br />
that racial or ethnic minorities will perform racial fantasies. In the context of exotic<br />
dancing, Siobhan Brooks notes [add quote]. 286 Brooks and others contend this<br />
discrimination violates Title VII and should be enjoined by courts. Can someone<br />
legitimately prefer one sex worker to another based on appearance? If so, what role does<br />
race play? This Section attempts to answer this vexed question.<br />
On its face, the argument to apply anti-discrimination norms to sex work is an<br />
attractive one. The assimilationist claim is very strong. As one leading sex theorist<br />
argued, lawyers no different than prostitutes or club dancers in that “Law firms aren’t<br />
allowed to hire only white lawyers on the ground that most of their clients are white and<br />
would prefer to work with lawyers of the same race, and I doubt that courts would allow<br />
that excuse if any other racial or ethnic group were involved. So why not apply the same<br />
reasoning to sex and sexual services?” 287 Brooks, who led the first Title VII suit brought<br />
by dancers, concurs: [add quote]. In this view, the assimilationist claim is very strong.<br />
<strong>Sex</strong> work is no different from other service jobs in which anti-discrimination norms bar<br />
283 McGinley 67<br />
284 McGinley 90<br />
285 McGinley’s approach also challenges the hardline drawn by Kimberly Yuracko, who also takes<br />
sexual contexts into account in assigning workplace liability. In assessing disparate treatment doctrine,<br />
Yuracko draws a clear line dividing workplaces that provide sexual gratification from those that provide<br />
only sexual titillation. In contrast, McGinley rejects Yuracko’s “plus-sex” binary/dichotomy in favor of<br />
more nuanced consideration of how sex and emotional labor are at work, finding more of a continuum.<br />
The common thread among these jobs is that either the job or the environment in which the job is<br />
performed is sexual. All of these women either trade on their sexuality or sell sex outright at<br />
work. But sexuality is not the only job requirement. Each job has other requirements, some<br />
gendered and some not. Moreover, in varying degrees, [add] require the worker to compromise<br />
her own emotional independence and to engage in emotional labor, managing the emotions of the<br />
customers to elicit a certain response. While differing in intensity and degree of managerial<br />
supervision, this emotional labor resembles the behavior expected of flight attendants, fast food<br />
workers, insurance salesmen, and paralegals . . . . Requiring emotional labor in service jobs blurs<br />
the line between jobs in sexualized industries and those in non-sexualized industries.<br />
McGinley, supra note [x], at 89.<br />
286 Russell Robinson has made similar observations about acting. notes this in expectations of colored<br />
actors to perform in ways that satisfy stereotypes @ 18) 286<br />
287 [where is this quote from?] 229 (footnote omitted).<br />
48
discriminatory preferences, however strong, by both employers and customers.<br />
Importantly, one of the big innovations of discrimination law is that employers cannot<br />
use customers’ “taste for discrimination” as a rationale to discriminate against employees.<br />
However, what should be made of the assimilationist claim in regard to<br />
discrimination law”? Three aspects of sex work should give us pause about the<br />
assimilationist claim. Taken together, these three suggest that perhaps there should be an<br />
erotic exemption/an exemption for erotic work.<br />
[Readers: I am still thinking this through and will share my thoughts on it during the<br />
workshop]<br />
IV. POLITICAL FEASIBILITY, OR, IMAGINING SOSHA<br />
This Section turns its attention to the question lurking behind this entire paper: the<br />
political feasibility of regulating professional sex in the ways suggested in Section III.<br />
Rather than making sweeping arguments about the pragmatics of cognizing sex work, it<br />
breaks the feasibility calculus concerns down into their component parts—<br />
administrability, political will, substitution effects, and, briefly, concerns over<br />
endowments. It will address each of these in turn, using two “case studies,” pornography<br />
and mining.<br />
A. Administrability<br />
Although this paper has not included pornography in its discussion and analysis, a<br />
recent conflict raises some of the potential challenges posed by regulating sex work.<br />
Earlier this spring the city of Los Angeles began to contemplate whether policing<br />
condom usage in pornography should be a municipal role. 288 After the private clinic that<br />
had monitored HIV and other health status for the pornography industry “abruptly shut its<br />
doors” in December of 2010, city lawmakers voted to draft an ordinance that would<br />
require condoms in adult films made in the city. 289 Los Angeles’s plan would end the<br />
pornography industry’s long-standing self-regulation: “The city law would be the first to<br />
impose safety standards specifically on the pornographic film industry, which has largely<br />
been allowed to police itself.” 290 After several adult-film actresses contracted HIV in the<br />
1990s, suing production companies, the industry implemented a mandatory testing<br />
regime, creating a not-for-profit clinic that established a health status data base, funded<br />
by the industry. 291 The adult film industry has long touted the efficacy of its self<br />
288 Ian Lovett, Condom Requirement Sought for <strong>Sex</strong>-Film Sets, N.Y. Times, Feb. 10, 2011, at A18. The<br />
proposed ordinance would implement mandatory condom usage as a condition of issuing film permits. [fill<br />
in re ordinance]<br />
289 One city councilman said bluntly, “We can’t keep our heads in the sand any longer. These people<br />
should be using condoms. Period.” Lovett, Condom Requirements Sought for <strong>Sex</strong>-Film Sets, supra note<br />
[x], at A18. [add check susan’s email re this]<br />
290 Id..<br />
291 The industry created Adult Industry Medical Healthcare Foundation after several actresses contracted<br />
HIV in the 1990s and sued production companies. Structured as a non-profit clinic, it was financed by<br />
contributions from production companies [conflict of interest???], and performers who had not been test4ed<br />
49
egulation, citing only five instances of HIV among performers since 2004. 292 Yet critics<br />
contend that “Testing just acts as a fig leaf for producers, who suggest that it is a<br />
reasonable substitute for condoms, which it is not.” 293 They note that, apart from HIV,<br />
sexually transmitted diseases are diagnosed in a quarter of all performers each year and<br />
are seven times higher than in general population. 294 Observers predict that the Los<br />
Angeles plan will spark a regulatory stand-off, as the city lacks jurisdiction over public<br />
health, while county officials claim they lack the resources to effectively monitor condom<br />
usage. 295 Meanwhile, the California division of OSHA has had its own conflicts with the<br />
industry. Since 2004 the state’s agency “has maintained that existing state workplace<br />
safety laws require condoms and other protections for performers in the pornographic<br />
film industry.” 296 Yet, here, as elsewhere, OSHA is plagued with little oversight and<br />
enforcement power. 297 Not surprisingly, faced with this new regulatory regime, the film<br />
industry is threatening to leave the state for more “friendly” jurisdictions. As for the<br />
clinic, which “abruptly” closed after a performer tested positive for HIV, it has re-opened<br />
as a for-profit clinic, now under the auspices of the California Medical Association.<br />
However, the incident raises the broader question of “who, if anyone, should be ensuring<br />
their safety.” 298<br />
This case study suggests the potential challenges of monitoring and enforcing markets<br />
for professional sex. If all sex work were to be legalized, some laws would apply to it as<br />
they would to any other form of labor, e.g., requirements for exit signs and asbestos<br />
levels. 299 But regulating the substance of sex markets and how they operate is a different<br />
matter. The California condom controversy suggests several things about the<br />
administrability of a regulatory regime for other professional sexual labor.<br />
First is jurisdiction. Currently, the regulation of work is a complex mix of federal,<br />
state, and local law. In addition, some industries self-regulate. As described in Section<br />
II, the availability of various bodies of federal law, including OSHA and Title VII, will<br />
turn as an initial matter on whether sex workers are classified as employees and also the<br />
size of the workplace. The federal regimes employ differing criteria, and it is not clear<br />
that all sex professionals will qualify as employees under all tests. 300 Beyond this initial<br />
litmus test, the experience with regulating condoms in the pornography industry suggests<br />
other constraints. While the OSHAct’s general duty clause would cover many health and<br />
safety issues, the agency’s own statements identified the obstacles in effectively<br />
regulating the pornography industry. The agency simply lacked the resources to monitor<br />
and remediate violations. It is unclear that other sex work would be different.<br />
within the last 30 days were not supposed to be hired. Only 5 cases of HIV since 2004, when there was an<br />
outbreak. Clashes with county health officials; now opened as for profit under oversight of California<br />
Medical Association and some criticisms against county health department.<br />
292<br />
Id..<br />
293<br />
Michael Weinstein, President of AIDS Healthcare Foundation, quoted in New York Times. Id..<br />
294<br />
Id.<br />
295<br />
State health regulators have convened a committee, but not yet acted. Id.<br />
296 Id.<br />
297 OSHA issued only handful of fines for filming unprotected sex. Id.<br />
298 Id.<br />
299 There still will be the question of whether and when sex workers are “employees.”<br />
300 See supra notes [x] and accompanying text.<br />
50
Alternatively, sex work could be regulated primarily under state law. State<br />
regulatory schemes take different forms. [fill in other ways for states to assert<br />
regulation? State osha’s?] Another option are state-based licensing schemes. Licenses<br />
[fill in definition] Requiring a license to perform sex work might be the least intrusive<br />
form of state regulation and yet the most comprehensive. A license can be required of<br />
commercial establishments and sole proprietors alike. Licensing can establish highly<br />
specific standards of a variety of behaviors, conduct, and interactions. State-issued<br />
licenses govern professions as diverse as lawyers, doctors, realtors, sale of liquor, hair<br />
dressers, caterers, and interior decorators. Licensing takes different forms. In markets<br />
involving the provision of services a standard component is to require some standardized<br />
training and a proficiency test, such as the bar exam. We could envision that sex worker<br />
training would include at the most basic level safe-sex practices, ensuring their own<br />
safety, ethics, hygiene, and perhaps instruction in counseling. 301<br />
Licensing may also have a secondary, collateral effect on sex work—legitimizing<br />
it. As suggested earlier, some sex professionals urge that their work is akin to that of<br />
professional therapists. <strong>Sex</strong> work is a profession with a high quotient of human need<br />
fulfillment, and sex workers are the last stage in the delivery of that fulfillment. 302 “As<br />
sex workers have themselves suggested, one goal would be for prostitution to become a<br />
kind of sex therapy, professionalized and no longer stigmatized.” 303 These sentiments<br />
envision the legalization of sex work not only legitimizing sex work, but actually<br />
unmasking it for the high-status work it is. 304<br />
Finally, the licensing option answers sex exceptionalists’ insistence that sex work<br />
should be a litigation-free zone. 305 Contrary to the libertarian impulses, private contracts<br />
are not exempt from scrutiny and regulation. 306 Currently, 23% of American workers<br />
require licenses to do their jobs. More than 1,100 professions require licenses, including<br />
florists, manicurists, shampoo specialists, interior designers, and of course, doctors and<br />
lawyers. 307 It would seem quite odd that a state would require a license to wash hair or<br />
arrange flowers, but that those engaged in sexual acts with the potential exchange of body<br />
fluids, not to mention the risk of violence, should be exempt. In fact, requiring licenses<br />
301 Ethics of therapists and social workers might be particularly useful in their emphasis on…/The ethical<br />
component is an intriguing one. Other professions provide model ethical codes, including social workers<br />
and therapists. Both of these professions enjoin their practitioners to follow three norms: the client, the<br />
relationship, and self-care. The combination of the three can result in recommendations/mandates to limit<br />
the number of hours/clients, [fill in others]. [work on this footnote].<br />
302 [add the quote on the most successful prostitutes are those who can connect with their clients and their<br />
needs]<br />
303 Chancer, supra note [x], at 161. In fact, [Firefly and categories of sex worker that feature in science<br />
fiction]. [compare sex surrogates]<br />
*Companion: trained at a monastic institute; take applications from customers; they are high status, and<br />
exotic, as exemplified by being cast as Indian (not black!); licensed<br />
*hustler: had companion training but used it to become a con woman<br />
*broken off from companion ship to open independent brothel; vulnerable and victimized but independent]<br />
304 [compare sex surrogates; Susan Stiritz]<br />
305 Emens, supra note [x], at [add pincite].<br />
306 Non-exceptionalism example of private contract to mine coal and a private contract for sex work: state<br />
might fairly regulate them both because of “risk.”<br />
307 Wall Street Journal (cited in The Week, Feb. 18, 2011).<br />
51
actually gives sex workers themselves the ability to help establish the standards that will<br />
govern the profession.<br />
This leads to yet another regulatory option, self-regulation. As described above,<br />
pornography has been emblematic of self-regulation, and indeed, holds itself up as a<br />
poster child for that approach. [fill in]<br />
In addition to jurisdiction, a second possibility suggested by the California condom<br />
controversy is the creation of a dedicated agency to administer the regulation. <strong>Sex</strong><br />
workers themselves endorse such a turn. Several organizations have urged creating<br />
separate and discrete agencies and commissions to monitor the sex work industry. The<br />
World Charter for Prostitutes’ Rights urges, “There should be a committee to insure the<br />
protection of the rights of prostitutes and to whom prostitutes can address their<br />
complaints. This committee must be comprised of prostitutes and other professionals like<br />
lawyers and supporters.” 308 Exotic dancing organizations largely concur: “Provisions<br />
exist under the Occupational Health and Safety Act that are relevant to club owners and<br />
dancers. The current requirements, however, are often too general to be applied as<br />
measurable standards. Public Health Units need to establish specific criteria for what<br />
constitutes adequacy or sufficiency under each provision so that dancers and club owners<br />
alike know when they have met the standards for occupational health and safety.” 309<br />
Whether they envision federal or state regulation is unclear, and perhaps irrelevant, as<br />
many of these organizations are international ones. Collectively they call for OSHA-like<br />
regulatory structures that can be attentive to the specificities of sexual work and<br />
empathetic to the concerns of the workers. 310<br />
There are precedents for such targeted agencies. Some workplaces are so challenging<br />
or pose such specific risks that Congress has created a separate agency to address their<br />
workers’ health and safety needs. A classic example is the Mine Safety and Health Act,<br />
which regulates mining, an archetypically risky workplace. As noted in Section II, the<br />
severe hazards and injuries in mining prompted the first two workers’ compensation<br />
laws. 311 The first comprehensive miner safety act was passed in 1969 and amended in<br />
1977, seven years after the passage of OSHA. 312 According to the legislative history,<br />
“the existence of unsafe and unhealthful conditions and practices in the Nation’s coal or<br />
other mines is a serious impediment to the future growth of the coal or other mining<br />
industry and cannot be tolerated.” 313 Protection for miners has certainly waxed and<br />
waned over the years. At the moment, they seem to enjoy a fairly robust set of<br />
protections, although enforcement varies. 314 But are professional sex workers likely to be<br />
treated like miners? Can we imagine an STD Fund akin to the Black Lung Fund? This<br />
raises the next question, of political capital and will.<br />
B. Political Feasibility<br />
308<br />
World Charter 184<br />
309 Exotic Dancing Health and Safety<br />
310<br />
(many of the organizations are international ones, so they would not be contemplating our federal<br />
structure.)<br />
311<br />
[add citation]. Although passed seven years after OSHA, MSHA updated the Coal Mine Safety and<br />
Health Act of 1969.<br />
312<br />
[cite the statute and as amended]<br />
313<br />
[find cite] 799 (footnotes omitted).<br />
314<br />
See infra notes [x] and accompanying text.<br />
52
For several reasons, historically miners have received special regulatory attention.<br />
Through-out the twentieth century, when coal was the nation’s primary source of energy,<br />
their labor was perceived as highly valuable. The nation valorized miners, politically and<br />
culturally. Their efforts to assert their rights provoked violent resistance from the mining<br />
companies and legendary stand-offs, now immortalized in the history of unionization. 315<br />
Importantly, miners were also what Joan Williams has called ideal workers. 316 They<br />
inspired workers’ compensation because they were bread-winning men who performed<br />
crucial labor for the economy, whose workplace deaths left economically devastated<br />
families. 317 Finally, during the heyday of mining, its substantial environmental costs<br />
were not widely perceived. In other words, the substantial externalities mining imposes<br />
were invisible. All of this translated into political influence. [add quote from the Witt<br />
book] 318 Of course, MSHA was not a palliative. Miners continue to struggle against<br />
both corruption and lack of enforcement, and several recent incidents demonstrate how<br />
such dedicated agencies can be even more susceptible to industry capture. 319 In sum,<br />
MSHA can be understood as a product of miners’ substantial, if contested, political<br />
influence. 320<br />
The analogy to mining, an archetypically risky form of labor, and one that has<br />
enjoyed substantial, if not completely effective, regulation, is helpful in thinking about<br />
the political feasibility of regulating sex work. While mining may be an iconic form of<br />
labor, it is less clear that most Americans view sex work as of similar social value. To<br />
the contrary, sex work occurs against the strong gravitational pull of marriage and the<br />
firm entrenchment of sex in the private sphere. Prostitution has long been cast as a threat<br />
to the companionate model of marriage that arose in the late eighteenth century. [Add<br />
cites to historic criticisms]. Today’s critiques have hardly changed in tenor or fervor.<br />
Feminists and social conservatives alike condemn prostitution as threatening “family<br />
values.” For instance, [add example of response to Spitzer from both feminist and social<br />
conservative perspectives]. Moreover, the commodification of sex, that is, the<br />
occurrence of sex in markets, is also separately and roundly condemned. [add quotes<br />
from Radin et al] Thus, in today’s nominally sexually “enlightened” era, no less than in<br />
Victorian times, prostitution is viewed as a threat to marriage and its role in preserving<br />
the social order, or, from a more feminist lens, the possibility of marriage as a site of<br />
gender egalitarianism. In stark contrast, most workers labor firmly in the so-called public<br />
sphere and do not do so against this powerful gravitational pull.<br />
In addition, sex professionals are viewed in many ways as the opposite of the “ideal<br />
worker.” People find it difficult to envision prostitutes as women with families, let alone<br />
as the primary bread-winner, which many of them are. To the contrary, as just described,<br />
315<br />
[add cites].<br />
316<br />
[add citation to Joan]<br />
317<br />
[add quotation and citation from Witt]<br />
318<br />
See also Robert H. Stropp, Jr., Walkaround Rights for Miners’ Representatives Under MSHA: A<br />
Compatible Statutory Scheme, 96 W. VA. L. REV. 795 (1994).<br />
319<br />
[add examples re the recent mining disasters and how they were attributed to underenforcement.] In the<br />
wake of this political maelstrom, Don Blankenship, CEO of the Massey Mines, was forced to resign. [two<br />
sets of books, plus lack of enforcement].<br />
320<br />
Miners are a labor conundrum. On the one hand, among the most vulnerable and exploited of workers.<br />
On the other hand, special status.<br />
53
prostitutes are viewed as threatening to families. Much political work would need to be<br />
done for the public to perceive prostitution as work that supports, rather than threatens,<br />
families. In sum, unlike miners and other iconic workers, sex professionals have<br />
notoriously low political capital. 321<br />
Finally, there is the question of externalities, or non-internalized costs of<br />
professional sex, and how these shape public perception. With mining, until quite<br />
recently, the broader social benefits were clear. Without a comprehensive grasp of the<br />
environmental costs, mining seemed to yield a clear net benefit to the political economy.<br />
Hence the idolization of miners. What are the social benefits of commodified sex? And<br />
do they outweigh the costs?<br />
Many feminists object to prostitution’s spill-over effects on other women in<br />
society that are not borne by the industry. Sylvia Law makes the case:<br />
Elevating the status of sex industry work to an employment relationship neglects<br />
to address its sexually exploitative nature. Through legitimization, the legal<br />
system may send a message to American girls that sex work is a socially<br />
acceptable option for earning a living. This contradicts a central focus for many<br />
feminists: the desire that girls grow up knowing that they are more than sex<br />
objects, that they deserve respect and attention for more than their sexuality. 322<br />
In this view, transactional sex affects and shapes the menu of sexual bargains women<br />
might strike, including marriage and dating, as well as non-sexual workplace options and<br />
terms. Importantly, these effects are imposed on women who do not work in, or directly<br />
benefit from, sex markets. Another opponent characterizes transactional sex as “a<br />
misleading contract because, uncontrolled by the woman who is a party to it, it extends<br />
far beyond the specific transaction and payment for it. The contract is not only between<br />
the woman selling sex and the client buying it from her, but between the woman selling<br />
sex and the society in which she lives.” 323 Similarly, in contrasting prostitutes and<br />
professors, Martha Nussbaum observes, “the professor of philosophy, if a female, both<br />
enjoys reasonably high respect in the community and also might be thought to bring<br />
credit to all women in that she succeeds at an activity commonly thought to be the<br />
preserve only of males. She thus subverts traditional gender hierarchy, whereas the<br />
321 [ironic given their connections to many powerful political men]. See also LEVITT & DUBNER, supra<br />
note [x], at 31-32 (“[U]nlike the sugar and steel industries, [prostitution] holds little sway in Washington’s<br />
corridors of power—despite, it should be said, its many, many connections with men of high government<br />
office. This explains why the industries fortunes have been so badly buffeted by the naked winds of the<br />
free market.”).<br />
322 Fischer, supra note [x], at 552. Fischer continues “providing legal protection in sex work has<br />
drawbacks. Specifically, it fails to acknowledge the inherently degrading and dehumanizing character of<br />
the industry and in fact further supports its legitimacy as a commercial venture. Furthermore, granting sex<br />
workers rights as employees is only a partial response to the harm of working in the sex industry and may<br />
impede comprehensive reform.” Id. at 552. [perhaps there is an analogy to casinos and externalities?]<br />
323 Almog, supra note [x], at 734. Almog elaborates:<br />
[T]he contractual approach ignores the enormous losses entailed by the social infamy that attaches<br />
to prostitution. It is concerned only with the visible, thin upper shell of the prostitution contract-the<br />
sum or economic return for which a woman consents to sell sex—and disregards the<br />
underlying, more substantial layers of the transaction. The contractual approach is indifferent to<br />
the true cost borne by a woman that sells sex, and by her alone—the loss of social respectability<br />
and transition to an inferior, branded, humiliating status.<br />
Id. at 727.<br />
54
prostitute, while suffering stigma herself, may be thought to perpetuate gender<br />
hierarchy.” 324 Another philosopher, Margaret Radin, posits a “domino effect,” in which<br />
[fill in]. 325 Finally, Laurie Shrage offers particularly harsh criticism: “Just as an Uncle<br />
Tom exploits noxious beliefs against blacks for personal gain, and implies through his<br />
actions that blacks can benefit from a system of white supremacy, the prostitute and her<br />
clients imply that women can profit economically from patriarchy.” 326<br />
A related concern is that legalized sex markets will yield another externality—the<br />
intensification of current race and gender norms that feminists find repugnant.<br />
Mainstream sex markets value and valorize mainstream beauty norms. These shift over<br />
time, but some, for instance youth and whiteness and “ability,” remain fairly static.<br />
Hence, as discussed in Section III, non-white women, older women, and disabled women<br />
all find themselves disadvantaged in sex markets. Not only is it more difficult for them<br />
to find work, but they are often paid less, labor in less savory markets, and find<br />
themselves consigned to niche or fetish markets that may or may not require stereotypical<br />
performances that many workers find offensive. Of course, it is not inexorable that<br />
legalization will reinforce market norms. However the last fifty years have seen limits of<br />
feminist efforts to perform counter-education projects in the pornography and exotic<br />
dancing markets. For all of the above reasons, many feminists contend the externalities<br />
warrant sex work’s on-going criminalization. It is unclear how the externalities<br />
associated with sex work will weigh against discerned benefits, which will need to be<br />
clearly articulated.<br />
Of course, others strongly resist the attributions of these externalities.<br />
Responding to Radin, Sylvia Law observes that:<br />
Images and reality of degradation of women, violence, and exploitative sexuality<br />
are pervasive in U.S. culture. But it is difficult to see commercial sex as the main<br />
culprit. Despite the fact that the U.S. is expensively committed to the prosecution<br />
of commercial sex, the commodified discourse that Radin fears is pervasive in the<br />
magazines at the supermarket check-out line, on commercial airlines, in network<br />
television, and, in more explicit forms, on cable TV, the Internet and at<br />
newsstands. Indeed these pedestrian forms of sexual commodification may be<br />
more pernicious than commercial sex simply because they are so ordinary. It is<br />
not clear that legalization of commercial sex would lead to an increase in sex<br />
commodification talk, even if advertising were not banned. 327<br />
324324 Nussbaum, supra note [x], at 705. [Stigma rationale for prohibiting sex discrimination (doctors and<br />
flight attendants) w3ould seem to be strong re strippers! (“the social message that women are primarily<br />
objects for men's sexual gratification” Yuracko 151); Mikulski 20 “If there was one thing I could do, it<br />
would be to get rid of the stigma.”)]<br />
325 [add Radin citation]. But see [add citation] (contending that Radin’s “’domino effect’ argument<br />
implicitly suggests that the exploitation of mostly poor women that results from the criminalization of<br />
commercial sex is counter-balanced by benefits to people whose sexual and economic lives are closer to the<br />
visionary ideal she articulates.”) (footnote omitted).<br />
326 Shrage, supra note [x], at 356-57. But see Chancer, supra note [x], at 164 (“Shrage’s blaming of the<br />
prostitute for “Uncle Tomming” and reinforcing a patriarchal system makes no more sense than it would to<br />
accuse other underground economic workers of collusive capitalism.”).<br />
327 Law, supra note [x], at 538-39 (footnote omitted). Chancer concurs:<br />
In terms of gender, the stigmatization also singles out prostitutes from other women who also use<br />
their bodies to reap rewards in a society common with Hollywood actresses for beauty, for<br />
example, with models, singers, Madonna (her ‘good girl’ name purposefully ironic in this context)<br />
55
Some pro-sex work theorists accuse feminists who oppose it of not being concerned with<br />
“overcoming the oppression of all women,” which is what feminism is supposed to be<br />
about. 328 Anne McClintock contends that “[e]mpowering sex workers empowers all<br />
women, for the whore stigma is used to discipline women in general; and encouraging<br />
society to respect sex workers encourages society to respect all women.” 329 Finally,<br />
under some definitions of feminism, prostitution might be lauded for its potentially<br />
positive effects in subverting and destabilizing the current sex/gender system. 330<br />
C. Endowments [& Bargaining Power?]<br />
I began this Section by observing that the controversy over condom mandates in<br />
the pornography industry, a long-standing legal sex market, suggests the difficulty in<br />
administering a regulatory regime for sex markets. On the other hand, the opposite might<br />
be true. Institutional endowments form differently in legal versus illegal markets. One<br />
effect of decriminalization is to disrupt the endowments that have become entrenched in<br />
the shadow of illegality. In fact, decriminalization is often urged explicitly to disrupt<br />
these interests as evidenced in instances as diverse as the legalization of alcohol,<br />
gambling, and the emerging legal markets for marijuana. 331 Hence, part of pimps’ power<br />
over prostitutes comes from their close and complex relationships with law enforcement<br />
institutions. 332 It is unclear how current endowments would transform in legalized<br />
markets for sexual labor. Thus, prostitution might actually be easier to regulate than<br />
pornography because the current institutional endowments will be disrupted, it will take<br />
some time for them to re-form and re-organize in the legal economy.<br />
D. Substitution Effects<br />
Of course, there are limits to regulation. Equally important are its unintended effects.<br />
<strong>Sex</strong> work comprises a labor sector that is highly susceptible to substitution effects. That<br />
is, as the costs of operating a legal business increase, employers, workers, and customers<br />
migrate, or substitute, to the underground, illegal economy. In economic language,<br />
changing the cost structure of a market produces an equilibrium response. Classic<br />
examples include markets for house-keeping and yard work. <strong>Work</strong>ers in these sectors<br />
self-sort into four markets. They can work for a legal company, independently and<br />
and followers, and withhuge numbers of women who spend billions on cosmetics and surgical<br />
procedures in their struggle to prolong sexiness into old age. In each of these cases, like sex<br />
workers, women are also either taking pleasure in the power of temporarily sexy and salable<br />
bodies, or attempting to find such power. Thus, from the standpoint of feminist theory, it is<br />
inconsistent to indict only the prostitute for collusion with patriarchy unless millions of other<br />
women are also viewed just as critically.<br />
Chancer, supra note [x], at 165.<br />
328 Chancer, supra note [x], at 156 (emphasis in original). Elsewhere Chancer contends “For all these<br />
reasons, then, it strikes me that feminism would be most consistent with its own goals of representing the<br />
interests of all women to the extent that it rigorously avoided reproaching prostitutes for coping within<br />
gender-skewed conditions.” Chancer, supra note [x], at 166 (emphasis in original).<br />
329 McClintock, supra note [x], at [add pincite].<br />
330 [add cite to Jody Green on this definition; Gayle Rubin and Judith Butler too? Katherine Franke in law?]<br />
331<br />
332<br />
See also LEVITT & DUBNER, supra note [x], at 40-41 (discussing negotiations between pimps and police)<br />
[change to Venkatesh].<br />
56
legally, independently “underground,” or underground for a company. <strong>Work</strong>ers opt for<br />
underground labor for a variety of reasons. Of course some do not have a choice, i.e.,<br />
they may lack the paperwork for legal labor or are coerced into illegal markets. Others,<br />
though, are enticed into illegal labor by autonomy, convenience, or “wedge” effects, i.e.,<br />
a substantial difference between the amount the employer pays into the system and the<br />
amount the worker receives.<br />
Market sectors that are either capital intensive and/or require a fixed business site<br />
have the lowest substitution effects. For instance, a manufacturing plant cannot easily go<br />
“underground.” Similarly, restaurants must operate out of a specific site. 333 This lack of<br />
mobility means they cannot easily evade inspection. (Of course, with manufacturing,<br />
there is a different substitution effect at work, outsourcing to a different, less regulated<br />
jurisdiction, whether domestic or foreign. However, outsourcing exchanges one legal<br />
sector for another; it does not go completely underground.) One of the arguable reasons<br />
that mining can be so heavily regulated is that it is unsusceptible to substitution effects.<br />
It is both capital intensive and site specific. Mining companies are not mobile—they<br />
must be situated where the natural resources are located. In addition, they invest heavily<br />
and, unlike manufacturing, cannot outsource the work.<br />
In contrast, sex work would seem to be the opposite of mining. <strong>Sex</strong> work requires<br />
neither a high investment of conventional capital nor does most of it require a fixed<br />
business site. 334 It requires little capital (dance clubs and brothels can be run out of<br />
almost any space) and is not site specific, i.e., sex can occur in a home, leased or rented<br />
premises, or even the street or car, and is highly mobile, it is highly susceptible to<br />
substitution to the underground economy. Thus, like housekeeping, yard work, and drug<br />
dealing, sex work is highly susceptible to substitution effects. Hence, there is a concern<br />
that if decriminalized and then regulated, sex work would remain in the underground<br />
economy. My gamble, though, is that because much sex work already is illegal, the<br />
effects would flow the other way. Instead of people fleeing the legal sector for the illegal<br />
one, we are trying to induce people to move out of the underground economy to the legal<br />
one. At least some owners, workers, and customers, I am betting, would prefer the lower<br />
risk and lesser stigmatization of a legal market, as opposed to an illegal one. While it<br />
may be true that the more regulations that are imposed, the less illegal work will<br />
“substitute up” to legal markets, it is also the case that some who currently opt out of<br />
professional sex because of the criminal and other risks would almost certainly be drawn<br />
into a decriminalized, legalized, fully regulated market. [find any empirical data on what<br />
happens in legalized jurisdictions?] [Or alternatively, a different kind of substitution<br />
effect would take place, the classic race to the bottom in which, like the highly mobile<br />
pornography industry, regulation precipitates a move to a more friendly jurisdiction.]<br />
Importantly, there is also substitution between different sectors of sex markets, e.g.,<br />
brothel, outcall, and street prostitution (or in dancing, club versus outcall). [I have to<br />
think this through: For instance, one would hypothesize that increasing regulation of<br />
brothel/dance clubs through body guards, etc. will increase the substitution to outcall. 335 ]<br />
333 Pop up restaurants, “underground restaurants,” and trucks are the exceptions.<br />
334 The exception would be dance clubs.<br />
335<br />
Experience suggests that if brothels are closed street prostitution and escort services become more<br />
popular. Thus, as a practical matter, the question is whether we prefer street prostitution and escort<br />
57
There is an interesting divide within the sex work industry. In the case of prostitution,<br />
some workers seem to value community, predictability, and safety and choose to work in<br />
brothels. Others, though, place a premium on autonomy, discretion, and privacy, and<br />
prefer outcall work. In fact, many outcall prostitutes are drawn to the work because of<br />
the relative autonomy compared to other options. 336 A similar dynamic is at work in<br />
dance markets.<br />
E. Summary<br />
In sum, contrary to invocations of professional sex as “just work,” the political<br />
feasibility calculus turns on several factors. Important questions include whether a<br />
regulatory regime would be best administered by federal, state, or self-regulation need to<br />
be determined, as does whether a dedicated agency is feasible or desirable. Political will<br />
also needs to considered, which entails a variety of issues, including public perception of<br />
sex work and sex professionals, the gravitational pull of marriage and the relegation of<br />
sex to the private sphere, and the management of externalities and spill-over effects.<br />
Finally, substitution effects demonstrate that not all work can be regulated to the same<br />
degree of efficacy. <strong>Sex</strong> work may be a classic instance of where there is a highly elastic<br />
trade-off between regulation and substitution. Thus, all work can be regulated, but,<br />
because of administrability concerns, political will, and substitution effects, not all work<br />
can regulated to the same degree of efficacy.<br />
CONCLUSION<br />
By casting it as labor, sex as work advocates hope to lay claim to an array of<br />
effects—including normalizing and legitimizing the practice; changing endowments<br />
through enforceability; and accessing legal regulation to ameliorate some of the worst<br />
aspects of contemporary sex markets. But is the factory floor really like the sex<br />
worksite(s)? Almost certainly not. And yet, the commodified sex as labor claim/analogy<br />
is revelatory—about both the discourse and the regulation of commodified sex.<br />
[conclude conclusion!]<br />
services to brothels. Street prostitution raises the most serious risks of violence, sexually<br />
transmitted disease, and offence to community sensibility and public life. Thus, the Inquiry<br />
recommended that prohibitions on street solicitation be retained, but within a context that allowed<br />
alternative means of negotiating commercial sex relations.<br />
Law, supra note [x], at [add pincite].<br />
336<br />
[add quotes]. See also Nussbaum, supra note [x], (emphasizing discretion and autonomy in prostitution<br />
compared to other work).<br />
58