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

prostitutes are viewed as threatening to families. Much political work would need to be
done for the public to perceive prostitution as work that supports, rather than threatens,
families. In sum, unlike miners and other iconic workers, sex professionals have
notoriously low political capital. 321
Finally, there is the question of externalities, or non-internalized costs of
professional sex, and how these shape public perception. With mining, until quite
recently, the broader social benefits were clear. Without a comprehensive grasp of the
environmental costs, mining seemed to yield a clear net benefit to the political economy.
Hence the idolization of miners. What are the social benefits of commodified sex? And
do they outweigh the costs?
Many feminists object to prostitution’s spill-over effects on other women in
society that are not borne by the industry. Sylvia Law makes the case:
Elevating the status of sex industry work to an employment relationship neglects
to address its sexually exploitative nature. Through legitimization, the legal
system may send a message to American girls that sex work is a socially
acceptable option for earning a living. This contradicts a central focus for many
feminists: the desire that girls grow up knowing that they are more than sex
objects, that they deserve respect and attention for more than their sexuality. 322
In this view, transactional sex affects and shapes the menu of sexual bargains women
might strike, including marriage and dating, as well as non-sexual workplace options and
terms. Importantly, these effects are imposed on women who do not work in, or directly
benefit from, sex markets. Another opponent characterizes transactional sex as “a
misleading contract because, uncontrolled by the woman who is a party to it, it extends
far beyond the specific transaction and payment for it. The contract is not only between
the woman selling sex and the client buying it from her, but between the woman selling
sex and the society in which she lives.” 323 Similarly, in contrasting prostitutes and
professors, Martha Nussbaum observes, “the professor of philosophy, if a female, both
enjoys reasonably high respect in the community and also might be thought to bring
credit to all women in that she succeeds at an activity commonly thought to be the
preserve only of males. She thus subverts traditional gender hierarchy, whereas the
321 [ironic given their connections to many powerful political men]. See also LEVITT & DUBNER, supra
note [x], at 31-32 (“[U]nlike the sugar and steel industries, [prostitution] holds little sway in Washington’s
corridors of power—despite, it should be said, its many, many connections with men of high government
office. This explains why the industries fortunes have been so badly buffeted by the naked winds of the
free market.”).
322 Fischer, supra note [x], at 552. Fischer continues “providing legal protection in sex work has
drawbacks. Specifically, it fails to acknowledge the inherently degrading and dehumanizing character of
the industry and in fact further supports its legitimacy as a commercial venture. Furthermore, granting sex
workers rights as employees is only a partial response to the harm of working in the sex industry and may
impede comprehensive reform.” Id. at 552. [perhaps there is an analogy to casinos and externalities?]
323 Almog, supra note [x], at 734. Almog elaborates:
[T]he contractual approach ignores the enormous losses entailed by the social infamy that attaches
to prostitution. It is concerned only with the visible, thin upper shell of the prostitution contract-the
sum or economic return for which a woman consents to sell sex—and disregards the
underlying, more substantial layers of the transaction. The contractual approach is indifferent to
the true cost borne by a woman that sells sex, and by her alone—the loss of social respectability
and transition to an inferior, branded, humiliating status.
Id. at 727.
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