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

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own in sexual commerce. 240 Thus, sex professionals largely embrace and insist on the same norms of personal choice and preference that govern non-commodified intimacy. But this puts sex professionals in direct conflict with anti-discrimination and consumer protection law. The 1964 Civil Rights Act prohibits discrimination [insert language] against consumers. Similarly, [add other protections from consumer law]. The Americans with Disabilities Act requires “reasonable accommodations” and prohibits discrimination on the basis of the disability. Finally, the ADEA [fill in relevant portion.] This means that workers in the service industry cannot refuse to serve customers based on race/gender and other suspect characteristics. Indeed, doing so triggers legal liability for their employer. Sole proprietors face the same restrictions. [is that right?] In addition, when it comes to service workers’ completing a contract or transaction, while specific performance is off-limits as a legal remedy, there are other constraints on workers’ rights to refuse service. 241 Declining to serve a customer could be grounds for termination or other sanctions. Thus the sexual nature of sex work may be in tension with some of the standard anti-discrimination and other egalitarian measures that protect customers and consumers of paid services. Thus, while it may be tempting to “view[] them through the same labor lens as other workers,” sex workplaces are not like “most” workplaces/sex work is not like “most” work. 242 Contrary to the essentialist assimilationist claim, most workplaces are not characterized by the particularities of sex work: the culture of alcohol, drinking, and drugs; the homosocial “mob” context; the blurred line between legitimate re-negotiations and criminal assaults; a similarly blurred line between on-site/off-site (that is on-duty/offduty) identities; and employer expectations of “free” services that all can combine to create distinct risks and hazards. Nor does most work entail the stigma and resulting isolation or threaten entrenched liberal norms of autonomy in the same way. The assimilationist claim obscures the distinctive characteristics of much sexual labor and the distinct regulatory challenges it poses. The remainder of this Section explores a potential regulatory structure that would try to take account of and ameliorate these risks. B. [insert heading] On the one hand, sex professionals share many basic working conditions with nonsexual workers, e.g., exploitation by management, weak rights, dangerous and unsanitary working conditions, as well as other gender-based harms, e.g., wearing stiletto heels and sexual harassment. Many existing workplace regulations would also apply to sex workplaces. For example, exit signs and fire extinguishers are mandatory in brothels and dance clubs as they are in factories and restaurants. As other commercial sexual establishments emerge, they would be subject to these same regulations. Other requirements will be relatively easy to enforce, for instance that stages, poles, sex toys, beds, i.e., “equipment,” be safe and meet specified standards of hygiene. 243 However 240 [add surrogate material] 241 For instance, barring extenuating circumstances, taxi drivers typically cannot just drop a customer off anywhere, and restaurants must serve their patrons. [think about this one] 242 Moukalif 254 243 [Elaborate how OSHA would apply; maybe lift from condom stuff re porn?] 40
other types of risks and hazards, such as the violence, harassment, and discrimination described in Section II.A and III.A, tend to be specific to or intensified by sex work. Ameliorating and managing these would require a different regulatory structure.] [Readers: I have an extended summary of new regulation from New Zealand and am contemplating whether to insert it here] As described in Sections II.A and III.A, violence poses one of the biggest risks to sex professionals’ well-being. But violence threatens some sex workers more than others. Isolation poses the biggest threat. Elizabeth Bernstein finds that “while it is true that streetwalkers are at exceptionally high risk of physical violence, by their own accounts, the chief danger exists when they’re alone with a john—in a car or hotel room—not standing on the street.” 244 Audrey Macklin’s study of lap-dancing in Canada observes the same dynamics at work: “It requires little imagination to recognize that the risk of harm to performers in the form of non-consensual contact could only be exacerbated in circumstances where the patron and the performer are secluded from observation.” 245 The empirical evidence bears out these observations: [double-check the empirics on brothel, in-home, and street prostitution violence] Hence, although some municipal codes associate public sexual acts with “indecency,” from the workers’ perspective, the more “private” the sexual activity, the greater the risk. 246 In this view, the degree of risk correlates not with the type of activity but with the isolation of the interaction. We might map this sexual geography as follows. Organizational forms in which workers have no personal contact with clients, and importantly no personal contact with employers or third party intermediaries/managers, have the least risk. This would include sex professionals who provide phone sex or new media sexual services, as long as they remain anonymous to customers and have limited interactions with their employers or intermediaries. 247 The latter caveat is important as employers can pose as a great a threat as do customers. 248 In sum, in sexual geographies with no physical or face to face interactions, the risk of violence is minimal. 249 Activities within this institutional form ought not require significant regulation to protect workers, other than clear rules and protocols to preserve anonymity. 250 244 She continues, “In this regard, the pimps are of little or no use . . .” Bernstein, supra note [x], at 107 (footnote omitted). 245 Macklin continues, “The curtain shielding what happens on the other side of it from the public and, therefore, judicial scrutiny is precisely what heightens the performer’s vulnerability; the parallels between the regulation of public and private space in these cases and historic patterns of judicial treatment of domestic violence are patent.” Macklin, supra note [x]. 246 See, e.g., [add cites to municipal codes from a couple of prominent jurisdictions: check NY, LA, SF, Chicago, etc. Just 3 will do.] 247 Phone sex from labor/safety perspective probably unobjectionable (kids at home; safety; multi-tasking; available to all regardless of age, looks, etc) Authenticity/performativity: doing laundry or on the treadmill (heavy breathing) 248 See supra 249 But see [fill in citation that prsottitutes/sex workers are at higher risk of violence from partners, etc] 250 Phone lines, etc. 41
Page 1 and 2: Regulating Sex Work Adrienne D. Dav
Page 3 and 4: and the diversity of sex work. Even
Page 5 and 6: which is not. Sex in the course of
Page 7 and 8: Elizabeth Emens has called a “lit
Page 9 and 10: injuries and harms of commodified s
Page 11 and 12: Grounded in labor discourse, the te
Page 13 and 14: criminalization of markets for sex
Page 15 and 16: libertarian position: “A woman’
Page 17 and 18: In sum, exceptionalists take a libe
Page 19 and 20: compensation statutes, as well as s
Page 21 and 22: stakeholders in the sex trade, cust
Page 23 and 24: egulated by discrimination law, eit
Page 25 and 26: egulations. 128 Although criticized
Page 27 and 28: most vulnerable to workplace violen
Page 29 and 30: and other employment terms on the b
Page 31 and 32: Hence, privacy and sexual gratifica
Page 33 and 34: diversity of workplaces. Within the
Page 35 and 36: states. 197 Finally, the “status
Page 37 and 38: gender ratios, homosociality, and a
Page 39: fact, anti-prostitution activist an
Page 43 and 44: manager or intermediary, then she m
Page 45 and 46: Let me anticipate some objections.
Page 47 and 48: When confronting harassment by cust
Page 49 and 50: discriminatory preferences, however
Page 51 and 52: Alternatively, sex work could be re
Page 53 and 54: For several reasons, historically m
Page 55 and 56: prostitute, while suffering stigma
Page 57 and 58: legally, independently “undergrou

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

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