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

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legality and labor in different sectors of the desire industry. One invocation of sex for hire as “just work” is, of course, to urge the decriminalization of sex markets, which at the most basic level would give sex workers the ability to enforce their contracts. Currently, not only customers, but also landlords, hotels, and other third parties can evade their obligations with sex workers because these contracts are illegal. 86 In addition, because their activities are criminalized, sex traders are under constant surveillance by the police, who not only arrest them, but also sexually and economically exploit them. 87 (In this sense, many have contended that the police operate much like pimps, but with the shield and force of law. 88 ) Thus, the ability to work legally and enforce the basic terms of their contracts would ameliorate some of the fundamental vulnerability and exploitation sex bargainers experience. Made in this register, freedom of contract, the claim that sex for hire is “just work” seeks its legitimization, but in the language of the sexual libertarianism described in Section I. These invocations of sex as labor actually want to exceptionalize the sexual part, keeping it a “private” and unregulated activity, rather than a more conventional labor relation. While, as Section I noted, some invocations of the “just work” discourse are for libertarian aims, many seek full legalization and regulation of sex markets./But those who envision not just decriminalization but full legalization of sex markets anticipate a starkly different, even oppositional, end state. Their invocation of sex as “just like any other work” is really a recognition claim, that sex bargainers should be considered legitimate laborers with the protections of the “applicable legal standards relating to labor rights.” 89 This Section explores this set of claims within the context of the relevant state and federal laws. It breaks Macklin’s “four D’s” down into their recognizable regulatory forms—dirt and danger, typically addressed by workplace health and safety regulations and workers’ 86 Sylvia Law observes: For some women, the laws against pimping represent a serious burden on personal family relations. When women who work in commercial sex have voice in the development of public policy they reject laws making it a crime to live “off the earnings of prostitution.” Many women work precisely to support their children, parents or friends. Other women who sell sex for money prefer to have a third person mediate the transaction. That mediation can be benevolently protective or exploitative. Laws against pimping do not distinguish among the worker;s child, mom, protective madam or an exploitative sex slaver. Anyone who derives financial benefit from a commercial sex worker is a criminal. Law, supra note [x], at 571 (footnote omitted). See also Kotiswaran, supra note [x]; [cite others]. 87 [Find the case where rape was charged when the police officers identify themselves as law enforcement after sexual services have been rendered. They thus consume the service, refuse to pay, and arrest the bargainer. Is this MacKinnon?] Chancer, supra note[x], at 156 (“Not infrequently, the rapist was a copy: as agents of social control, police know their actions in relationship to prostitutes are unlikely ever to be taken seriously, less likely still to be constructed as examples of ‘police brutality’ and punished.”) (footnote omitted); Leigh, supra note [x], at 69 (“Many women complain of vice officers fondling them or exposing themselves before arresting them.”); McClintock, supra note [x], at 4 (“Police . . . are on record almost everywhere for raping prostitutes in vans and precincts, demanding ‘freebies,’ humiliating, harassing, and hounding the most vulnerable women on the streets.”). Some call for explicit non-enforcement of state laws at the local level or for implicit deprioritizing. See, e.g., Law, supra note [x], at [pincite] (discussing San Francisco and New Jersey Task Forces as case studies of local reform); Leigh, supra note [x] (discussing San Francisco Task Force recommendations to suspend enforcement of state laws against prostitution and redirecting resources to services for sex workers and enforcing nuisance laws). 88 [add citations] 89 [is this a Macklin quote?]. 18
compensation statutes, as well as some collateral tort law on violence, and degradation, much of which is the province of anti-discrimination law, mainly Title VII, but also the Americans with Disabilities Act and the Age Discrimination in Employment Act. The remainder of this Section gives an overview of how health and safety, workers’ compensation, tort, and discrimination law operate. It also briefly summarizes the guidelines for determining who is an employee, which determines other, crucial benefits and rights sex bargainers seek. In the end, although the “just work” claim implicitly suggests a monolithic workplace and set of labor regulations, what the remainder of this Section reveals is that workplaces are themselves quite diverse and subject to varying regulation. In sum, the question isn’t whether sex can be work, but, rather, what kind of work will it be considered? A. The sex as labor camp anticipates a host of benefits from legalized status and regulation, primarily ameliorating the substantive work conditions for sex bargainers. As an initial matter, at the most basic level, many seek legal recognition of sex workers as employees, which would entitle them to basic employment benefits, including unemployment, health insurance, retirement, social security benefits, workers’ compensation, and minimum wage and overtime. 90 Neither prostitutes, whose work is illegal, nor dancers, whose employers often classify them as independent contractors, qualify for these benefits under federal and state laws. In addition, the National Labor Relations Act gives workers classified as employees the right to unionize and collectively bargain for improved working conditions. Rather than relying solely on the state to enforce minimal, universal benefits, collective bargaining allows workers to craft terms and conditions of employment that are tailored to their needs. 91 As Sylvia Law notes, “One of the most effective ways for commercial sex workers to promote decent working conditions and protect themselves from violence, abuse, and health and safety hazards, is to work in a collective context.” 92 Indeed, sex bargainers have sought to unionize in a variety of contexts, although with little success. 93 Apart from the challenges of 90 Another conceivable benefit claim might be for protection under the Family and Medical Leave Act, which requires employers to provide workers’ unpaid leave for medical reasons or to care for newborn children or sick family members. When employees return they must be reinstated in same or equal position with no loss of accumulated seniority or benefits. Margot Rutman examines the applicability of FMLA to exotic dancers. She concludes that, even though, “[c]onceivably, the FMLA does apply to exotic dancers,” because dancers may need more recovery time than other workers because of appearance and physical requirements of the job, “the overall impact on exotic dancers is not as beneficial as it is in other environments.” Rutman, supra note [x], at 535-36. 91 Unions have often played a critical role in raising and negotiating over issues of health and safety. Because they implicate working conditions, safety issues are a mandatory subject of bargaining in a unionized workplace, and employers are therefore obligated to provide safety information upon the union’s request. . . . In addition, unions frequently negotiate for improved safety measures, or alternatively, higher wages to compensate for the risks, through the collective bargaining process. WORK LAW, supra note [x], at 946. 92 Law, supra note [x], at 598. See also Chun, supra note [x] (advocating unionization as best route to empowerment for exotic dancers). 93 As detailed in Live Nude Girls Unite! documentary, the Lusty Lady was the first exotic dance club to successfully unionize. [detail this and other efforts]. 19
Page 1 and 2: Regulating Sex Work Adrienne D. Dav
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1 Regulating Sex Work Adrienne D. Davis VERY ROUGH DRAFT ...

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