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

discriminatory preferences, however strong, by both employers and customers.
Importantly, one of the big innovations of discrimination law is that employers cannot
use customers’ “taste for discrimination” as a rationale to discriminate against employees.
However, what should be made of the assimilationist claim in regard to
discrimination law”? Three aspects of sex work should give us pause about the
assimilationist claim. Taken together, these three suggest that perhaps there should be an
erotic exemption/an exemption for erotic work.
[Readers: I am still thinking this through and will share my thoughts on it during the
workshop]
IV. POLITICAL FEASIBILITY, OR, IMAGINING SOSHA
This Section turns its attention to the question lurking behind this entire paper: the
political feasibility of regulating professional sex in the ways suggested in Section III.
Rather than making sweeping arguments about the pragmatics of cognizing sex work, it
breaks the feasibility calculus concerns down into their component parts—
administrability, political will, substitution effects, and, briefly, concerns over
endowments. It will address each of these in turn, using two “case studies,” pornography
and mining.
A. Administrability
Although this paper has not included pornography in its discussion and analysis, a
recent conflict raises some of the potential challenges posed by regulating sex work.
Earlier this spring the city of Los Angeles began to contemplate whether policing
condom usage in pornography should be a municipal role. 288 After the private clinic that
had monitored HIV and other health status for the pornography industry “abruptly shut its
doors” in December of 2010, city lawmakers voted to draft an ordinance that would
require condoms in adult films made in the city. 289 Los Angeles’s plan would end the
pornography industry’s long-standing self-regulation: “The city law would be the first to
impose safety standards specifically on the pornographic film industry, which has largely
been allowed to police itself.” 290 After several adult-film actresses contracted HIV in the
1990s, suing production companies, the industry implemented a mandatory testing
regime, creating a not-for-profit clinic that established a health status data base, funded
by the industry. 291 The adult film industry has long touted the efficacy of its self
288 Ian Lovett, Condom Requirement Sought for Sex-Film Sets, N.Y. Times, Feb. 10, 2011, at A18. The
proposed ordinance would implement mandatory condom usage as a condition of issuing film permits. [fill
in re ordinance]
289 One city councilman said bluntly, “We can’t keep our heads in the sand any longer. These people
should be using condoms. Period.” Lovett, Condom Requirements Sought for Sex-Film Sets, supra note
[x], at A18. [add check susan’s email re this]
290 Id..
291 The industry created Adult Industry Medical Healthcare Foundation after several actresses contracted
HIV in the 1990s and sued production companies. Structured as a non-profit clinic, it was financed by
contributions from production companies [conflict of interest???], and performers who had not been test4ed
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