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

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prohibitions be repealed, but “legal remedies and programs to protect commercial sex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