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

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