Decriminalization by any other name: sex worker rights in federal advocacy

In the last year, the conversation in the United States on sex worker rights and the responsibility of lawmakers to listen has reached a new level of attention. The last year has also seen the start of one of the most important presidential races we will ever see (God willing). This timing has meant that sex worker rights has moved from a topic reserved for state and local administrations to a question that, for the first time, almost every presidential candidate and congressperson has to have a stance on.

Even for those who believe that sex worker rights are human rights and that sex work is work, understanding how the federal government can help make those rights real isn’t always easy. So far there has been a focus on the ways in which federal candidates and policymakers can set a national tone around sex work. What is still missing is a better understanding of the concrete steps they can take to improve the health and wellbeing of people who trade sex.

A different kind of issue education

Policy change around the sex trade is often centered on decriminalization or anti-criminalization, which requires broad changes to criminal law and divestment from the criminal legal system. Under the US’s legal structure, direct criminalization of the exchange of sexual services for resources happens at the state level and is enhanced by municipal laws and local law enforcement policy. Currently, there is no federal law which directly criminalizes sexual exchange. And, based on a 1911 Supreme Court case, there can’t be.

Nonetheless, federal actors enhance criminalization in important ways. Sex worker advocacy in federal spaces, therefore, requires nuanced and substantive conversations on federalism as well as sex workers’ rights. For example, federal funding to local law enforcement sometimes requires them to undertake activities to avert “demand for trafficking”, and the accompanying trainings only show examples of sting operations against sex workers’ clients. Immigration and customs law bar entry into the country for people who have engaged in sex work, even from those countries where the selling of sex is legal. Immigration jurisprudence has ruled that a prostitution arrest and conviction is enough to bar someone from adjusting their status from temporary to permanent.

Federal laws also cover “interstate commerce” or things crossing state lines – including internet regulations – which made the passage of FOSTA/SESTA, a bill which expanded criminal and civil liability for websites which hosted information related to the sex trade and led to dozens of websites preemptively closing, possible. Federal projects have international reach as well, such as the trainings the US gives to foreign law enforcement agencies on how to engage in trafficking work. These often replicate and encourage the same law enforcement tactics and racist narratives and imagery that American sex workers are all-too familiar with.

Decriminalization is only a clear ask for state policymakers. Asking federal policymakers to say ‘decriminalization’ can have a strong impact on the conversation, but focusing solely on that without tangible asks lets them off the hook. There are ways short of decriminalization that they can enact change.

Shared values

No issue exists within a silo. Even for those who are open to the conversation on sex work, the issue is probably new. Coalitional partners have been key to moving policymakers because they are able to put the issue of sex work into more familiar contexts. For someone with a long record of supporting LGBTQ communities, sitting down with a national LGBTQ organization who can explain that, for many queer and trans individuals who have been pushed out of formal education and employment, the sex trade can mean survival puts the issue within the context of LGBTQ rights and liberation. An HIV organization can describe how the impact of law enforcement confiscating condoms and using them as evidence of prostitution impedes their work and puts their clients’ health at risk. This is simply another way of making the need for decriminalization a tangible step towards a shared commitment to health. Coalitional partners help show that the issue of sex worker rights is a core piece of the change we all believe in. Their mere existence, furthermore, demonstrates that there is broader support for decriminalization than many people realize.

Sex workers are anti-trafficking experts

One area which is uncontestably within the scope of federal policy is anti-trafficking legislation. The flagship law within this area, the Trafficking Victims Protection Act, is quite broad in the sorts of violations it covers. Enforcement, however, has for the most part been limited to the sex industry. This is to the detriment of both people in transactional sex and survivors of trafficking in other fields. But unlike in other conversations on labor exploitation, workers in the sex industry are neither seen as experts on the nuances of their work nor as the people best positioned to identify solutions. They are treated as ignorant of the conversation, at best, and as a driver of trafficking at worst.

Within the United States, this is slowly beginning to change. The passage of FOSTA/SESTA changed the conversation for many people who were just starting to think about how federal legislation can directly impact the sex trade. While anti-trafficking organizations were pushing the dire need for this legislation and arguing that it would do no outright damage, sex workers were explaining that this would cause websites to close, displacing people into precarity and vulnerability. In the year and a half since its passage, the law has not been used for any new civil litigation, yet websites have indeed closed and sex workers have indeed been displaced and faced precarity and vulnerability. Sex workers were clearly the experts who should have been heard before its passage.

Like Cassandra screaming into the void about the fall of Greece, sex workers were the only ones predicting increased use of high-risk workplaces, economic precarity, housing insecurity, and violence. Now that FOSTA/SESTA has passed, sex workers are again the only ones documenting its impacts or trying to address them through support and mutual aid. Policymakers need to be reminded of this. They also need to know that the exclusion of sex workers from discussions of FOSTA/SESTA was not an isolated experience – that is how anti-trafficking conversations have always gone and will continue to go unless something changes.

If there is anything that’s clear about anti-trafficking work, it’s that what we’re doing isn’t working. No matter how many bills are passed, how many officers are trained, and how many task forces are funded, even the flawed metrics used to measure progress remain stagnant. Congressional staffers are sent bills full of intention, good and harmful, every day from people who claim to be experts from well-funded organizations. Many of these have never met a sex worker or come close to a direct instance of trafficking outside of their participation as consumers of cheap goods. These pre-drafted bills give easily digested ‘solutions’ to these problems that often rely on investing in police. The eventual consequences and negative impacts are never communicated back, or are blamed on other circumstances.

Staffers rarely hear from people who are directly impacted by legislation, especially when it comes to anti-trafficking efforts. When they do it is usually cherry-picked stories which affirm the necessity of intervention. Unfortunately, the rhetoric of “sex work isn’t sex trafficking” can reinforce that trafficking in the sex trade is wholly different from sex work. By talking about the ways in which workers and their organizations are the best primed to identify vulnerabilities and offer solutions, sex workers can follow the lead of other workers’ rights movements and demand space in anti-trafficking discussions.

Moving the conversation

The best part of doing this kind of education is that it’s all true. While anti-sex work campaigners twist their language, falsify studies, ignore lived experience, and co-opt terminology – sex workers fighting for decriminalization are speaking from truth. Advocating on this issue is about speaking with conviction to the things we all know to be true: criminalization is putting people in harm’s way; it’s much easier to exploit people in an industry that has to stay hidden; and pouring money into what are essentially vice stings isn’t working. The work is about sharing that truth through shared values and then coaxing people into taking tangible steps.

Congressional staffers, and now presidential campaigns, now have many more opportunities to engage with the subject of sex workers’ rights. Policymakers at every level of government may have different places of intervention, but most have something they care about which is enhanced by supporting sex workers rights. Whether it is criminal legal reform, economic justice, or LGBTQ rights, supporting the health, safety and rights of sex workers means honoring the lives and wellbeing of community pillars, caregivers, and people who are pushed to the margins through structural inequity. Understanding the role of the sex trade within these issues is an opportunity for policymakers to live into their values and make their goals even more impactful. That is just as true in Congress as it is anywhere else. While the levers of change may look different, they are rooted in the same shared goals of transformative, meaningful change.

Have your own ideas about effectively speaking about and arguing for the decriminalisation of sex work? Write to us.

This series has been financially supported by Humanity United.

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