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

egulation, citing only five instances of HIV among performers since 2004. 292 Yet critics
contend that “Testing just acts as a fig leaf for producers, who suggest that it is a
reasonable substitute for condoms, which it is not.” 293 They note that, apart from HIV,
sexually transmitted diseases are diagnosed in a quarter of all performers each year and
are seven times higher than in general population. 294 Observers predict that the Los
Angeles plan will spark a regulatory stand-off, as the city lacks jurisdiction over public
health, while county officials claim they lack the resources to effectively monitor condom
usage. 295 Meanwhile, the California division of OSHA has had its own conflicts with the
industry. Since 2004 the state’s agency “has maintained that existing state workplace
safety laws require condoms and other protections for performers in the pornographic
film industry.” 296 Yet, here, as elsewhere, OSHA is plagued with little oversight and
enforcement power. 297 Not surprisingly, faced with this new regulatory regime, the film
industry is threatening to leave the state for more “friendly” jurisdictions. As for the
clinic, which “abruptly” closed after a performer tested positive for HIV, it has re-opened
as a for-profit clinic, now under the auspices of the California Medical Association.
However, the incident raises the broader question of “who, if anyone, should be ensuring
their safety.” 298
This case study suggests the potential challenges of monitoring and enforcing markets
for professional sex. If all sex work were to be legalized, some laws would apply to it as
they would to any other form of labor, e.g., requirements for exit signs and asbestos
levels. 299 But regulating the substance of sex markets and how they operate is a different
matter. The California condom controversy suggests several things about the
administrability of a regulatory regime for other professional sexual labor.
First is jurisdiction. Currently, the regulation of work is a complex mix of federal,
state, and local law. In addition, some industries self-regulate. As described in Section
II, the availability of various bodies of federal law, including OSHA and Title VII, will
turn as an initial matter on whether sex workers are classified as employees and also the
size of the workplace. The federal regimes employ differing criteria, and it is not clear
that all sex professionals will qualify as employees under all tests. 300 Beyond this initial
litmus test, the experience with regulating condoms in the pornography industry suggests
other constraints. While the OSHAct’s general duty clause would cover many health and
safety issues, the agency’s own statements identified the obstacles in effectively
regulating the pornography industry. The agency simply lacked the resources to monitor
and remediate violations. It is unclear that other sex work would be different.
within the last 30 days were not supposed to be hired. Only 5 cases of HIV since 2004, when there was an
outbreak. Clashes with county health officials; now opened as for profit under oversight of California
Medical Association and some criticisms against county health department.
292
Id..
293
Michael Weinstein, President of AIDS Healthcare Foundation, quoted in New York Times. Id..
294
Id.
295
State health regulators have convened a committee, but not yet acted. Id.
296 Id.
297 OSHA issued only handful of fines for filming unprotected sex. Id.
298 Id.
299 There still will be the question of whether and when sex workers are “employees.”
300 See supra notes [x] and accompanying text.
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