Beyond Decriminalization: Sex-work, Human Rights and a New ...

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PIVOT LEGAL SOCIETYHazardous substancesBlood and other bodily fluids are classified as hazardous substances under the WCA. 97 Specialprovisions apply regarding worker education and training that include providing information toworkers about the potential effects of exposure to hazardous substances, and the means to preventexposure. 98 In addition, because blood and other bodily fluids can transmit disease causing organismsand toxins, the Workplace Hazardous Material Information System (WHMIS) classified themas “poisonous and infectious material” (Class D) and as “biohazardous infection material” (Division3). 99 WHMIS applies to all workplaces, including healthcare and laboratory facilities. The WHMISsystem assumes that every sample is dangerous and encourages safety precautions in every instance ofhandling hazardous substances.The requirements under WHMIS are fairly extensive, and the onus falls on the employer to maintainan effective program in concert with the overall workplace health and safety program. 100 Oneprovision relevant to prostitution is that the employer must maintain a list of job tasks that create thepotential for occupational exposure to blood borne pathogens, and implement a system of precautionsfor each listed task. 101 WHMIS requires that workers wear personal protective equipment to shieldthem from biohazardous materials. 102 These provisions applied to prostitution would mandate theeducation of workers about the risks associated with each type of service provided, and would requirecondom use where the contraction of sexually transmitted disease is possible.Some project participants expressed support for this type of health and safety program, lamentingthe current lack of information and lack of awareness of risk:A. You see I see it as rules that go along with the sex trade you know. It’s safety. Not onlydo you have to practice what you preach but you know you’ve got to teach it as well.A. A lot of it’s just a given.Q. Okay well these people don’t know what the givens are so let’s kinda lay them out.What are the givens that people have to do to reduce . . .A. You go out there; you have a date. You have to wear condoms. If the date turnsaround and says well I don’t want to do the date if you want to use a condom wellyou know you’ve got to be able to hold your ground and say look I’m sorry it’s notgoing to go. And you shouldn’t have to go that far because your employer should havethis date already pre-screened and already set up so that condoms and everything arethere. They’re going to be used and it’s mandatory. There is no change.A. The client agrees.Q. The client agrees in advance. That’s a good point.- male street-level sex workersThe application of the OHSR to prostitution would result in increased education and awareness,and more fair and safe workplace practises by both employers and employees. Prior to applying anylaw to prostitution, however, careful consultation with sex workers themselves should be undertakenby government.97 Hazardous substance means (a) a controlled product within the meaning of the Hazardous Products Act (Canada); (b) a substancedesignated as a hazardous substance by regulation; and (c) a biological, chemical or physical agent that, by reason of its properties, ishazardous to the health or safety of persons exposed to it. WCA, supra note 6, s. 106.98 OHSR, supra note 7, s. 5.2.99 B.C., WHMIS at Work (B.C. Workers’ Compensation Board, 2004) at 8, online:.100 WCA, supra note 6; OHSR, supra note 7.101 OHSR, supra note 7, s. 6.35.102 Ibid., s. 6.36(2).128
BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law ReformSuppliesUnder s. 115(2)(d) of the WCA, employers must provide personal protective equipment andensure that it is used on the job. If the criminal laws were to be repealed, it would have to be determinedthrough consultation with sex workers what supplies would be included as personal protectiveequipment. Condoms are the obvious example, but the obligation also may include provision of birthcontrol pills, rubber gloves, dental dams, or water-based lubricants to prevent condom breakage. Onefemale street-level sex worker suggested that employers provide the morning after pill in the case of anaccidental condom breakage or a sexual assault.Provisions requiring that employers provide workers with supplies are very important in thecontext of prostitution, as many workers reported having to provide their own condoms. Many sexworkers stated that condom purchase is an added expense that sometimes they cannot afford. Thecurrent pressure to provide their own condoms sometimes leads sex workers to reuse them:Q. Now did they give you condoms there?A. No, you have to have your own condoms.Q. So, were you using condoms?A. Yes, I did.Q. All used or . . .A. All used.- female off-street in-call sex workerAnother massage parlour sex worker described having to pay her employer for condoms:Q. Right. So with the guys that you were having sex with that he was introducing you to,where you using condoms with them?A. He, hisself. With him I did not.Q. With him you did not, but with the other guys you did?A. He said remember to do that.Q. Okay, and who was buying you condoms?A. Him and he charge me.Q. He charged you for the condoms?A. And starting to charge guys more money. And he starting charging me for food too.- female off-street in-call sex workersMost sex workers believed that employers should be responsible for providing the equipment requiredto work safely:A. The house, or the - your employer. You’re working –A. Yeah . . .A. Should all - should supply everything that you need as far as safety goes.A. As far safety goes, yeah.- female street-level sex workersSome massage parlour sex workers reported that their employer did not give them free condomsunless a non-profit organization promoting workplace health supplied them to the employer. Onesex worker in a massage parlour reported that her employer was selling condoms he had obtained forfree from a non-profit organization designed to help sex workers. Such exploitative practises would beprevented by the application of the OHSR to prostitution, should it be decriminalized.One WHMIS provision relating to supplies specifically deals with Hepatitis B. The provisionstates that vaccination against Hepatitis B must be provided at no cost to workers upon request where129
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