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

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